State ex rel. Venn v. Reid
Decision Date | 20 June 1956 |
Citation | 207 Or. 617,298 P.2d 990 |
Parties | STATE of Oregon on the relation of Eugene C. VENN, District Attorney for Lane County, Oregon, Petitioner, v. Frank B. REID, Presiding Judge of the Circuit Court of the County of Lane, Second Judicial District, State of Oregon, Respondent. |
Court | Oregon Supreme Court |
Eugene C. Venn, Dist. Atty., and Edward Leavy, Deputy Dist. Atty., Eugene, argued the cause for petitioner.
E. B. Sahlstrom and Clyde N. Johnston, Eugene, argued the cause for respondent. With them on the brief were S. M. Calkins, Herbert Lombard, William W. Bartle, Chester N. Anderson, Richard Bryson, William Huey, E. L. Kincaid, E. R. Bryson, Hale G. Thompson, J. Daniel Givan, L. L. Ray, Lewis Hoffman, and Clarence Barrett, Jr., Eugene, Marvin O. Sanders and Jack B. Lively, Springfield.
Alberta E. Heffron, Springfield, and Keith D. Skelton, George T. Langford, Richard E. Miller, Charles O. Porter, Gordon A. Ramstead, Thelma Chapman Fowler, W. P. Riddlesbarger, Bert McCoy, Jr., D. T. Bayly, James P. Harrang, Frank R. Lacy, L. D. Pederson, David F. Lentz, Cecil Stickney, Stanley R. Darling, and Frank E. Bocci, Eugene, as amici curiae.
This is an original proceeding in mandamus brought by the state of Oregon on the relation of Eugene C. Venn, District Attorney for Lane county, Oregon, as the petitioner, against Frank B. Reid, presiding judge of the circuit court of the county of Lane, second judicial district, state of Oregon, as the respondent.
Upon the District Attorney's proffer of a petition for a writ of mandamus, we assumed jurisdiction and caused an alternative writ to be issued requiring Judge Reid to discharge the grand jury for the county of Lane, empaneled on the 26th day of April, 1956, or show cause to this court why he had not done so. Judge Reid filed a demurrer to the writ of mandamus on the ground that it did not state facts sufficient to warrant issuance of the writ. The demurrer was set down for hearing, petitioner and his deputy Edward Leavy, appeared in person, and respondent appeared by his attorneys, E. B. Sahlstrom and Clyde N. Johnston. After hearing argument, the court retired, and after conference sustained the demurrer in open court with notice to the parties that a written opinion would be forthcoming.
The writ, inter alia, contains the following language:
'That you, the said Honorable Frank B. Reid, did exceed your jurisdiction in empaneling the said Grand Jury on April 26, 1956 and in doing certain acts in connection with the preparation of the purported 1956 jury list prepared and certified by the said Harry L. Chase, from which the said Grand Jury was drawn, in the following particulars, to-wit:
'That you, the said Honorable Frank B. Reid, as presiding Circuit Judge of the Circuit Court for the County of Lane, Second Judicial District, have the duty enjoined upon you by your office to discharge the presently empaneled Grand Jury which is illegally constituted and void and without legal authority to act in order that a valid Grand Jury may be subsequently empaneled, and thereupon to cause to be empaneled a properly drawn Grand Jury.
'That a validly constituted Grand Jury cannot be drawn from the 1956 jury list which is void and that irreparable injury would result to the State of Oregon and the people of Lane County if a new Grand Jury were to be so drawn.
ORS 34.110 reads as follows:
(Italics ours.)
ORS 34.150 reads as follows:
'The writ shall be either alternative or peremptory; when in the alternative, it shall state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court or judge thereof, by whom the writ was allowed, at a time and place therein specified, why he has not done so; * * *.'
It is well recognized in this state that a petition for mandamus is no part of the pleadings. An alternative writ of mandamus is tantamount to a complaint in other actions. It must contain facts alleging a cause of action and such facts must be legally sufficient so that the mandamus portion of the writ follows as a matter of law. The function of the demurrer is to test the sufficiency of the writ and for this purpose, every fact well pleaded therein is construed as admitted. See Olds v. Krkpatrick, 183 Or. 105, 111, 191 P.2d 641.
The sole question presented by the allegations of the writ is the alleged duty of Judge Reid personally, as distinguished from some other judge of the district, to discharge the April grand jury for Lane county. Although on demurrer the facts well pleaded in the alternative writ are admitted to be true, as herebefore pointed out, yet the allegations of the writ do not show a clear and positive duty on the part of Judge Reid to act as the writ requires him to do. We do not wish to be understood as saying that if the matter as alleged in the alternative writ were properly presented against the right person, and the facts were undisputed that a writ could not be issued to compel the required action, provided a motion or other proceeding was pending before him requiring action. This is a proceeding in mandamus and the jurisdiction in such a proceeding is circumscribed by well defined rules.
In State ex rel. v. Bradshaw, 59 Or. 279, 117 P. 284, 285, an original proceeding in mandamus, this court, speaking through Mr. Justice Burnett, said:
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* * *
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'We cannot here indicate what form of judgment the circuit court should enter under the circumstances of the case as disclosed by the writ, for that would be to exercise appellate jurisdiction in advance of the decision of the circuit court; * * *.'
Substantially, the same rule is announced in United States of America v. Cohn, 201 Or. 680, 684, 272 P.2d 982, 984. In that case, this court, speaking through Mr. Justice Brand, had the following to say:
'* * * Irrespective of the rule of pleading which limits us to a consideration of the allegations contained in the alternative writ, it is firmly established in this state that no petitioner is entitled to the remedy of mandamus unless he has a clear legal right to the performance of the particular duty sought to be enforced and unless there is a plain legal duty on the part of the defendant to perform the act. * * *'
In 55 C.J.S., Mandamus, § 51, p. 85, we find the following:
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