State ex rel. Wernmark v. Hopkins

• Decision Date: 02 July 1958
• Citation: 213 Or. 669,326 P.2d 121
• Parties: STATE of Oregon ex rel. WERNMARK, Relator, v. Bereth P. HOPKINS, County Clerk of Jackson County, Oregon, Respondent.
• Court: Oregon Supreme Court

Page 121

326 P.2d 121

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.

Argued Feb. 28, 1958.

Decided June 4, 1958.

Rehearing Denied July 2, 1958.

See 327 P.2d 784.

Hugh B. Collins and William V. Deatherage, Medford, argued the cause and filed a brief for relator.

George M. Roberts, Medford, argued the cause for respondent. With him on the brief were Roberts, Kellington & Branchfield, Medford, and Thomas J. Reeder, Dist. Atty., for Jackson County, and John C. Anicker, Jr., Dep. Dist. Atty., for Jackson County, Medford.

Before PERRY, C. J., and ROSSMAN, LUSK, BRAND and WARNER, JJ.

ROSSMAN, Justice.

This is a proceeding in mandamus which was instituted in this court as authorized by Constitution of Oregon, Art. VII (amended), § 2. Immediately before this proceeding was instituted, the relator had tendered to the defendant, county clerk of Jackson County, a declaration of his candidacy for the Democratic nomination for the office of county judge of Jackson County, and the defendant had refused to file it. Thereupon this proceeding was begun. The petition was challenged by a demurrer on the ground that it did not state a cause. Due to the fact that the time for filing declarations of candidacy was about to expire, this court gave immediate attention to the case. After consideration of the issues which were presented, the court overruled the demurrer and expressed a purpose to file later a statement of our reasons.

The defense to the relator's proceeding was that the defendant could not accept a declaration of candidacy for the office of county judge in the election to be held in 1958 because the term of office for county judge of Jackson County is, so the defendant claimed, six years, and since the incumbent was elected in November, 1954, his term of office would not expire until 1960.

The issue presented by the demurrer is this: what is the term of office of the county judge for Jackson County. The relator claims that it is, at most, four years. The defendant, as we have indicated, argues that it is six years. Constitution of Oregon, Art. VII (amended), § 1, says:

'The judicial power of the state shall be vested in one supreme court and in such other courts as may 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 first question is whether the county judge for Jackson County possesses the powers and is charged with the performance of duties of the kind that entitle him to be considered a judge, as that word is employed in the constitutional provision just quoted. That provision, it is recalled, says: 'The judges of the Supreme and other courts shall be elected * * * for a term of six years.' Perhaps more basic and determinative of the question presented is whether the county court of Jackson County is a court within the contemplation of the above-quoted constitutional provision.

ORS 3.130, which entered our laws as Oregon Laws 1947, ch. 364, Oregon Laws 1951, ch. 582, and Oregon Laws 1955, ch. 677, provides:

'All judicial jurisdiction, authority, powers, functions and duties of the county courts and the judges thereof, except the jurisdiction, authority, powers, functions and duties exercisable in the transaction of county business, are transferred to the circuit courts and the judges thereof:

'(a) In any judicial district consisting of * * *.'

It is agreed that the effect of the act just quoted was to transfer all of the judicial functions of the Jackson County court and the county judge to the circuit court of the State of Oregon for that county.

State ex rel. Madden v. Crawford, 207 Or. 76, 295 P.2d 174, 178, referring to the term 'judge' as it is employed in Art. VII (amended), § 1, said:

'* * * As ordinarily understood and as we use it here, the term 'judge' is limited to one who conducts or presides over a court of justice. * * * Judges are public officers whose duty it is to exercise judicial functions as a part of the judicial department of the government.'

In 1951 the office of county judge for Jackson County was stripped of its judicial...