State ex rel. Wernmark v. Hopkins

• Decision Date: 02 July 1958
• Parties: STATE of Oregon ex rel. WERNMARK, Relator, v. Bereth P. HOPKINS, County Clerk of Jackson County, Oregon, Respondent.
• Court: Oregon Supreme Court

Page 784

327 P.2d 784

213 Or. 669

STATE of Oregon ex rel. WERNMARK, Relator, v. Bereth P. HOPKINS, County Clerk of Jackson County, Oregon, Respondent.

Supreme Court of Oregon, In Banc.

July 2, 1958.

Roberts, Kellington & Branchfield, Medford, for respondent.

ROSSMAN, Justice.

The defendant (respondent) has filed a petition for a rehearing which does not challenge our holding that, since the enactment of Oregon Laws 1951, ch. 582, the county judge of Jackson county no longer possesses any judicial power and the county court over which he presides no longer performs any judicial function. The 1951 act and the legislation supplementary thereto which is cited in our previous opinion were enacted pursuant to Constitution of Oregon, Art. VII (amended), § 1. Likewise, the petition for a rehearing says nothing adverse to our conclusion that since 1951 the county judge of Jackson county has possessed no powers except those which are purely administrative and which are employed in the transaction of county business. The defendant argues, however, that the office of county judge of Jackson county, notwithstanding the statute just mentioned, remains one which was created by § 1 of original Art. VII of this state's constitution, the pertinent part of which reads:

'The Judicial power of the State shall be vested in Supreme (sic) Court, Circuits (sic) Courts, and County Courts, which shall be Courts of of Record having general jurisdiction, * * *.'

Based upon the premise that the constitutional provision just quoted, and not a statute, created the county court, the defendant urges that nothing in art. XV, § 2, Constitution of Oregon, fixes the term of office of the county judge of Jackson county. That part of our constitution reads:

'When the duration of any office is not provided for by this Constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment. But the Legislative Assembly shall not create any office, the tenure of which shall be longer than four years.'

Section 3 of original art. VII of the state's constitution prescribed six years as the term for the members of this court, and § 11 of the same article said:

'There shall be elected in each County for the term of Four years a County Judge, who shall hold the County Court at times to be regulated by law.'

Section 2 of amended art. VII reads:

'The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment shall remain as at present constituted until otherwise provided by law.'

And it will be recalled that amended art. VII, § 1, says:

'The judges of the supreme and other courts shall be elected * * * for a term of six years * * *.'

The provision just quoted was deemed self-executing and since, on December 3, 1910, when it became effective, county judges possessed judicial powers and their courts performed judicial functions, the 1910 amendment extended their term of office to six years. Phy v. Wright, 75 Or. 428, 146 P. 138, 147 P. 381, and State ex inf. v. Holman, 73 Or. 18, 144 P. 429. For similar reasons it was held that the term of a justice of the peace was six years. Webster v. Boyer, 81 Or. 485, 159 P. 1166, Ann.Cas.1918D, 988, and State ex rel. v. Beveridge, 88 Or. 334, 171 P. 1173. In like vein, this court ruled that amended art. VII authorized the legislature to abolish the county court or alter its jurisdiction. In re Will of Pittock, 102 Or. 159, 199 P. 633, 202 P. 216, 17 A.L.R. 218; Astoria v. Cornelius, 119 Or. 264, 240 [213 Or. 677] P. 233; Jacobson v. Holt, 121 Or. 462, 255 P. 901. The county court for Jackson county as such has been abolished, and, as we have seen, today possesses no judicial power; therefore, amended art. VII, § 1, no longer confers upon the incumbent a term of six years.

It will be noticed from the foregoing that several parts of our constitution make provision for the term of office of our public officers; to summarize: (1) amended art. VII provides that judges of judicial tribunals have a six-year term of office; (2) art. XV, § 2, enables the legislature to prescribe the term of any office it creates, but not for a duration longer than four years; (3) if the term of any office is not fixed by law, and if the office is appointive, the incumbent holds it 'during the pleasure of the authority making the appointment' (art. XV, § 2); (4) if, according to art. XV, § 2, the term of any office 'is not provided for by this Constitution, it may be declared by law.'

We have already taken note of the fact that the office in question (a) is not judicial in nature, and (b) is not appointive. Therefore, the provisions enumerated in the first and third of the above categories need not be considered further.

If the defendant's contentions must be accepted as sound, then neither the constitution nor any statute has specified the term for the office of county judge for Jackson county, and, in that event, since it cannot be supposed that the people intend that any elective officer shall remain in office indefinitely, especially in the absence of any statute or constitutional provision which so directs, the situation would strongly suggest that this...