State ex rel. Travis v. Imbler

• Decision Date: 04 March 1964
• Citation: 236 Or. 493,389 P.2d 918
• Parties: STATE of Oregon ex rel. John H. 'Jack' TRAVIS, Plaintiff, v. Doreen IMBLER, County Clerk of Hood River County, Oregon, Defendant.
• Court: Oregon Supreme Court

Page 918

389 P.2d 918

236 Or. 493

STATE of Oregon ex rel. John H. 'Jack' TRAVIS, Plaintiff, v. Doreen IMBLER, County Clerk of Hood River County, Oregon, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Demurrer to Alternative Writ, March 2, 1964.

Decided March 4, 1964.

Wayne C. Annala, Hood River, argued the cause and filed a brief for plaintiff.

John F. Cushman, Dist. Atty., Hood River, argued the cause and filed a brief for defendant.

Before McALLISTER, C. J., and ROSSMAN, SLOAN O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

LUSK, Justice.

This is an original proceeding in mandamus brought to require the defendant, the county clerk of Hood River county, to file the relator's declaration of candidacy for the Democratic nomination for the office of county judge of that county at the primary election to be held on May 15, 1964.

It is unnecessary to set forth the allegations of the writ. It is sufficient to say that the question presented is whether the term of Judge Harris A. Higgins, the incumbent of the office in question, will expire on January 4, 1965, as the relator claims, or two years from that date.

Judge Higgins was elected to the office of county judge of Hood River county at the general election held November 8, 1960, qualified, and ever since has been the occupant of the office. It is the contention of the defendant that Judge Higgins was elected for a constitutionally protected six-year term which commenced on the first Monday in January, 1961. The plaintiff contends that, as a result of an act of the legislature passed in 1963, the term of the county judge was reduced to four years. The pertinent legislation is set forth in the margin. ¹

We think that the legislation in question, if applied so as to shorten the term of the incumbent judge, would be in violation of Article VII, § 1, of the Constitution of Oregon, which reads:

'The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected.'

The legislation would also run counter to the implied prohibition in Article XV, § 2, which reads in part:

'When the duration of any office is not provided for by this Constitution, it may be declared by law; * * *.'

The office of county judge has not been a constitutional office since the amendment of Article VII in 1910. 'Nevertheless,' as we said in Fehl v. Jackson County, 177 Or. 200, 211, 161 P.2d 782, 'the term of his office and the immunity of his salary from reduction during his term of office were protected by Article VII, § 1.' The purpose of such a provision is to secure the independence of judges. See, 1 Kent's Commentaries (14th ed) 292-293; 2 Story on the Constitution (5th ed) §§ 1600-1622. It applies to all judges in the state. It is part of the fundamental law binding on the legislature as on everyone else. To admit a power in the legislature to truncate the constitutional term of a judge after he has been duly elected and assumed his office would be to acknowledge that an act of the legislature may take precedence over the will of the people as expressed in the constitution, and that the legislature may invade the principle of independence of the judiciary which Article VII, § 1, was intended to preserve.

This being so, we will not assume that the act in question was intended to shorten the term of an incumbent judge.

Our decision in State ex rel. Wernmark v. Hopkins, 213 Or. 669, 326 P.2d 121, 327 P.2d 784, does not control this case. There we were concerned with the validity of an act of the legislature which stripped the office of county judge for Jackson county of its judicial functions. We sustained the validity of the act as applied to that case, but the act of the legislature took effect prior to the election and assumption of the office by the incumbent. The following quotation from the opinion states the distinction:

'In 1951 the office of county judge for Jackson County was stripped of its judicial functions by the law of which we have taken notice. Therefore, when we apply the above definition of the word 'judge' to the office to which the incumbent...