State v. Cochran

• Decision Date: 21 December 1909
• Citation: 55 Or. 157,105 P. 884
• Parties: STATE v. COCHRAN.
• Court: Oregon Supreme Court

105 P. 884

55 Or. 157

STATE v. COCHRAN.

Supreme Court of Oregon

December 21, 1909

On motion to affirm judgment, and for rehearing. Motion denied.

For former opinion, see 104 P. 419.

In support of motion, in the first instance, appeared A.M Crawford, Atty. Gen., and J.H. Page, Dep. Dist. Atty. In opposition there was a brief over the names of Thos O'Day, for appellant, and Martin L. Pipes, amicus curiae. In opposition to the motion there was a brief, amici curiae over the names of the following counsel: A.E. Clark, Chas. H Carey, S.B. Linthicum, M.G. Munley, Dan J. Malarkey, John F. Logan, W.W. Cotton, Platt & Platt, John P. Kavanaugh, James B. Kerr, S.B. Huston, Bauer & Greene, Arthur C. Spencer, Veazie & Veazie, John H. Hall, Franklin T. Griffith, Alex Bernstein, D. Solis Cohen, C.M. Idleman, Cole & Cole, W.T. Muir, Ralph W. Wilbur, Kollock & Zollinger, Graham, Cleeton & Davis, Roger B. Sinnott, Harrison Allen, Schuyler C. Spencer, Ralph E. Moody, Russell E. Sewall, Milton W. Smith, Conley & De Neffe, William Brewster, W.C. Benbow, John Manning, W.E. Thomas, Jerry Bronaugh, Gus C. Moser, John C. McCue, John H. Stevenson, W.W. Banks, Chas. J. Schnabel, W.P. La Roche, Allen R. Joy, J.H. Middleton, McAllister & Upton, John A. Collier, H.E. Collier, A.C. Emmons, J. Frank Shelton, James McCain, Frank W. Fenton, W.T. Vinton, B.A. Kliks, Joseph E. Hedges, E.B. Tongue, C.A. Hardy, John A. Carson, W.H. Holmes, W.M. Kaiser, N.L. Butler, Oscar Hayter, J.E. Sibley, Gale S. Hill, Walter L. Tooze, Jr., W.R. Bilyeu, J.K. Weatherford, Percy R. Kelly, J.J. Whitney, W.S. McFadden, J.F. Yates, E.R. Bryson, E.E. Wilson, Ed Horgan, George Denman, J.A. Buchanan, W. Lair Thompson, A.S. Bennett, C.E. Woodson, Stephen A. Lowell, J.P. Winter, Roscoe R. Johnson, Turner Oliver, William Miller, J.L. Rand, J.N. Hart, M.L. Olmsted, Samuel White, James R. Nichols, Brooke & Tomlinson, R.G. Wheeler, G.W. Hayes, C.H. Leonard, C.L. McNary, and John H. McNary. In reply, supporting the motion, there was a brief over the names of A.M. Crawford, Atty. Gen., Geo. J. Cameron, Pros. Atty., J.H. Page, Dep. Pros. Atty., and A. King Wilson, for respondent.

McBRIDE J.

The Attorney General and one of the deputy district attorneys for Multnomah county, on behalf of the plaintiff, by a motion calling for the issuance of a mandate affirming the judgment of the trial court in the above cause, seek to question the constitutionality of chapter 50, p. 99, Laws 1909. This act increases the number of justices, comprising this court, from three to five, and provides for the immediate appointment by the Governor of two justices, in addition to those already in office, to hold until their successors are elected and qualified. Under its provisions Mr. Justice King and Mr. Justice Slater were, on February 12, 1909, by the Governor appointed justices of this court, took their oaths of office, and, in the manner provided by the act, entered upon their duties, and have at all times since been acting in that capacity, recognized as such by their associates, as well as by the executive, and all other departments and officials of the state, including the Attorney General and district attorneys, as well as by all other counsel having business before this court.

The former opinion in this cause, being the one giving rise to this controversy, was prepared by Mr. Justice King and concurred in by Mr. Justice Slater and by the writer of this opinion, but dissented from in an opinion by Mr. Justice Eakin, in which dissent Mr. Chief Justice Moore concurred. See 104 P. 419. By the motion, and argument in its support, it is insisted that the lawfully constituted court consists of Chief Justice Moore, Justice Eakin, and the writer, who hold their respective offices under laws in force prior to the act brought in question, by reason of which it is contended that Chief Justice Moore and Mr. Justice Eakin constitute a majority of the legally constituted court, and that their opinion should be treated as the majority opinion, and the majority opinion as filed be deemed a dissenting opinion only.

A peculiar situation confronts us at the very threshold of this proceeding. The motion is not addressed to those members of this body, who, it is claimed by the plaintiff, are the constitutional judges, but is addressed to the court, consisting de facto of five persons; each claiming to be a justice. If the three first named are to pass on the question in the collateral and indirect manner in which it is presented, they must say to Justices King and Slater: "Gentlemen, we are the legitimate justices of this court, and you are intruders. You will therefore retire, while we proceed to discuss the question as to whether three or five justices constitute our legitimate membership." In other words, we would thus be required to decide the merits of the controversy before the hearing. Or if all five of the justices sit at the hearing, and one of them should agree with Justices King and Slater that the decision in State v. Cochran was properly rendered by a constitutionally organized court, the question attempted to be raised on this motion would still be unsettled, for, unless all three of the justices, excepting King and Slater, concurred in condemning the constitutionality of the act, a majority of the court de facto would be in favor of its validity, and the matter would resolve itself into a struggle as to who would be recognized by the officers of the court and the state officials. However, the gentlemen, whose tenure of office is indirectly attacked by this motion, have seen fit to submit its decision to that part of the membership of this court whose title is unassailed, by reason of which the contingencies here suggested will not actually arise; but the fact that they might properly so arise furnishes some justification for the theory, which we think, in view of a precedent (to which we will later refer) of this court, it is unnecessary to adopt, that the question here presented belongs to the domain of legislation rather than judicial determination, or at least that, in the manner here presented, it is not properly before the court.

If the question were before the court for the first time, we might hesitate to pass upon it, especially in the form here introduced. The points presented have seldom arisen in this country; but there is respectable authority to the effect that they are political, and therefore not subject to review by the courts, and, notwithstanding the views to follow, we deem it not inappropriate at this time, before proceeding with a discussion of the merits, to call attention to the opinions of some other courts relative thereto.

In the case of Luther v. Borden, 7 How. 1, 12 L.Ed. 581, a similar question was raised. In that case the people of the state of Rhode Island had become dissatisfied with their government. Rhode Island, when it entered the Union, did not adopt a Constitution, but continued its government under a charter received from Charles II. Its Legislature, under the charter government, delayed, or refused to authorize by law, the calling of a constitutional convention to adopt a new Constitution. A number of its citizens, claiming to be a majority, assembled, and, holding a constitutional convention, and subsequently, an election under the Constitution there adopted, elected executive, legislative, and judicial officers, and pretended to go into operation as a full-fledged government. The existing government resisted this as an insurrection and declared martial law, arresting the movers thereof and imprisoning them. In a case involving the authority of the charter government to make these arrests, it was contended that the new government was at the time the legitimate government, and that the charter government had been superseded. Afterwards the charter government called a constitutional convention, adopted a Constitution, and instituted courts thereunder. Before one of these courts, so instituted by the charter government, the contention was made that the very government from which it held its commission was not the legitimate government at the time of the acts referred to. If such a contention could be made in that court, necessarily the effect of the decision would have been to invalidate the authority of the government, and, accordingly, the court trying the cause. Concerning that question the Supreme Court of the United States, at page 40 of the opinion in 7 How. (12 L.Ed. 581), say: "Indeed, we do not see how the question could be tried and judicially decided in a state court. Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived; and, if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it; and if a state court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power."

In the case of Brittle v. People, 2 Neb. 198, the right of a colored man to sit upon a jury was questioned, the outcome of which depended upon whether or not the Constitution of Nebraska was in force, in considering which Mr. Justice Crounse, at page 214 of 2 Neb., speaking for the court, after discussing the...