Webster v. Boyer

• Decision Date: 05 October 1916
• Citation: 81 Or. 485,159 P. 1166
• Parties: WEBSTER v. BOYER.
• Court: Oregon Supreme Court

159 P. 1166

81 Or. 485

WEBSTER v. BOYER.

Supreme Court of Oregon

October 5, 1916

In Banc.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action for injunction by Daniel Webster against U. G. Boyer. From an adverse decree, defendant appeals. Affirmed.

The complaint shows that at the general election for 1912 the plaintiff was elected justice of the peace for Salem precinct, in Marion county, and still holds said office; that at the primary nominating election held in May, 1916, R. C Wygant was nominated for justice of the peace for said precinct, and a certificate of nomination issued to him; that the defendant, the county clerk, unless restrained, will place the name of said Wygant upon the official ticket to be voted at the ensuing November election, and, as the said Wygant is the only candidate for said office, the defendant will after such election issue to him a certificate of election, thereby causing irreparable injury and interminable confusion by reason of the fact that there will be two persons each claiming to hold and exercise the duties of justice of the peace in said precinct. Other allegations not necessary to detail here appear. The prayer of the complaint is for an order enjoining defendant from placing Wygant's name upon the ballot. That part of the Constitution applicable to this case is found in sections 1 and 2, art. 7 as amended November 8, 1910, which are as follows:

"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. * * * 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. * * *"

There was a demurrer to the complaint, which being overruled, and defendant refusing to plead further, there was a decree enjoining defendant from placing the name of R. C. Wygant upon the ballot, from which decree defendant appeals.

Ernest R. Ringo, Dist. Atty., of Salem, for appellant. McNary &amp McNary and E. M. Page, all of Salem, for respondent.

McBRIDE J. (after stating the facts as above).

Two questions are raised by the briefs upon this appeal: Is a justice's court a "court," and is a justice of the peace a "judge" within the meaning and intent of sections 1 and 2 of article 7 of the Constitution? We answer both questions in the affirmative. Sections 1 and 2 of article 7 of our original Constitution were as follows:

"The judicial power of the state shall be vested in a Supreme Court, circuit courts, and county court, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this Constitution. Justices of the peace may also be invested with limited judicial powers, and municipal courts may be created to administer the regulations of incorporated towns and cities. The Supreme Court shall consist of four justices, to be chosen in districts by the electors thereof, who shall be citizens of the United States, and who shall have resided in the state at least three years next preceding their election, and after their election, to reside in their respective districts. The number of justices and districts may be increased, but shall not exceed five, until the white population of the state shall amount to one hundred thousand, and shall never exceed seven; and the boundaries of districts may be changed, but no change of district shall have the effect to remove a judge from office, or require him to change his residence without his consent."

It will be observed that the sections as amended omit all reference to justices of the peace eo nomine, but vest judicial power in the Supreme Court and "such other courts as may from time to time be provided by law." But for the proviso in section 2 of article 7, the whole system of circuit courts county ...