Plaintiff appeals from a judgment that dismissed an action that challenged the authority of defendant to hold the office of Multnomah County Circuit Judge. He based his challenge on the contention that defendant had failed to subscribe to the correct oath of office and therefore was not qualified to hold the office. We affirm.
Plaintiff filed his action under ORS 30.510, which, among other things, provides a mechanism for challenging a person’s right to public office. The thrust of plaintiffs argument is that defendant did not subscribe and file, word-for-word and comma-for-comma, the oath of office set forth in Article VII (Original), section 21, of the Oregon Constitution. 1 Defendant filed a motion to dismiss for failure to state ultimate facts sufficient to constitute a claim, arguing that the *343 oath that she had subscribed satisfied all legal requirements. The trial court agreed and granted defendant’s motion to dismiss.
Plaintiff timely filed a notice of appeal and, on September 24, 2003, filed his opening brief, asserting seven assignments of error. On October 24, 2003, defendant filed a motion to dismiss the appeal, arguing that we lacked jurisdiction to hear it because actions under ORS 30.510 must be commenced by the district attorney, and this action had not been. In April 2004, plaintiff requested a stay of the appeal while he sought to involve the Multnomah County District Attorney in the case. We denied that request and granted defendant’s motion to dismiss the appeal on July 22, 2004. On August 5,2004, plaintiff moved for reconsideration of our order dismissing the appeal, arguing that he had asked the district attorney to participate in the case and the district attorney had refused. On September 7, 2004, we denied the motion for reconsideration but, on our own motion, vacated our July 22, 2004, order insofar as it had dismissed the appeal. We did so because we have jurisdiction of appeals from judgments entered in the trial court, and that jurisdiction includes the resolution of disputes over the subject matter jurisdiction of the trial court. Thus, we denied defendant’s motion to dismiss the appeal and reinstated plaintiffs appeal. The threshold — and ultimately dispositive — question is whether a private party may bring an action under ORS 30.510 without the involvement of the district attorney. 2 For the reasons discussed below, we hold that (1) an action under ORS 30.510 to 30.640 must be commenced and prosecuted by the district attorney for the district in which the action is triable, and (2) that requirement is jurisdictional. That is, unless the action is commenced and prosecuted by the district attorney, a trial court lacks subject matter jurisdiction of the action.
First and foremost, this is a case of statutory construction. Thus, we turn to the well-worn template of
PGE v.
*344
Bureau of Labor and Industries,
Because the statutes at issue here have such a long history, their genesis is pertinent to our analysis.
See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto,
Plaintiff brings this action under ORS 30.510, which provides, in part:
“An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the person offending, in the following cases:
“(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state [.]”
*345 Several other statutes provide relevant context. As noted, ORS 30.570, ORS 30.580, and ORS 30.600 provide for actions to annul corporate existence and letters patent issued by the state. All of the actions described above are governed by ORS 30.610, which provides:
“The actions provided for in ORS 30.510 to 30.640 shall be commenced and prosecuted by the district attorney of the district where the same are triable. When the action is upon the relation of a private party, as allowed in ORS 30.510, the pleadings on behalf of the state shall be signed by the relator as if the relator were the plaintiff, or otherwise as provided in ORCP 17; in all other cases the pleadings shall be signed by the district attorney in like manner or otherwise as provided in ORCP 17. When an action can only be commenced by leave, as provided in ORS 30.580, the leave shall be granted when it appears by affidavit that the acts or omissions specified in that section have been done or suffered by the corporation. When an action is commenced on the information of a private person, as allowed in ORS 30.510, having an interest in the question, such person, for all the purposes of the action, and as to the effect of any judgment that may be given therein, shall be deemed a coplaintiff with the state.”
Finally, ORS 30.620 provides:
“When directed by the Governor, as prescribed in ORS 30.570, it shall be the duty of the district attorney to commence the action therein provided for accordingly. In all other actions provided for in ORS 30.510 to 30.640 it shall be the duty of the proper district attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever the district attorney has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby.”
Taken in isolation, the text of ORS 30.510 would appear to allow actions to be brought under it without the involvement of the district attorney. The language of the introductory sentence seems to be disjunctive: “An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a *346 private party * * ORS 30.510(1) (emphasis added). Thus, at first blush, it seems that ORS 30.510 plausibly could be interpreted to allow a private party to bring an action without the participation of the district attorney.
However, at the first level of statutory analysis, we are not concerned solely with the text of the particular statute. We must also consider the statute in context. Here, relevant context is provided by other related statutes, prior judicial construction of the same or similar language, and prior enacted versions of the same statute.
See State v. Carr,
ORS 30.610, quoted in full above, is a related statute that we must consider. The first sentence provides that “[t]he actions provided for in ORS 30.510 to 30.640 shall be commenced and prosecuted by the district attorney of the district where the same are triable.” ORS 30.610 (emphasis added). The plain meaning of that statute is that actions under ORS 30.510 must be commenced and prosecuted by a district attorney. “Shall,” of course, is mandatory language. That is, if an action under ORS 30.510 is to be commenced, it must be commenced by the district attorney.
ORS 30.620 also provides context for ORS 30.510. It provides, in part:
“In all other actions [besides that set forth in ORS 30.570] provided for in ORS 30.510 to 30.640 it shall be the duty of the proper district attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever the district attorney has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby.”
*347 ORS 30.620. In short, that statute further emphasizes the role of the district attorney in commencing an action under ORS 30.510. 3 That is, even if the case involves only a private interest, the district attorney is the proper party to commence the action.
At this stage of our contextual analysis, it seems plain that actions under ORS 30.510 must be commenced and prosecuted by the district attorney. However, we are not analyzing this case in a vacuum devoid of case law. As noted, prior judicial construction of a statute is an important part of its context, for such a construction by the Supreme Court becomes a part of the statute as if it were written therein. So we turn to the case law.
To put it bluntly, we are faced with over 140 years of muddled case law. We will discuss the details of the most important cases later in the opinion, but we begin with an overview of the patterns in the case law. With two anomalies, the cases fit into four categories. 4 The first category consists *348 of cases where the district attorney commenced and prosecuted the case. 5 Our research revealed 45 of those cases. The second category consists of cases where the court acknowledged that the district attorney’s absence might be problematic but decided the case on other grounds. We found three such cases. The third category consists of cases in which there is no evidence that the district attorney commenced and prosecuted the action, and the court was silent as to whether the district attorney was essential. We found 10 of those cases. 6 Finally, the fourth category consists of cases in *349 which the district attorney did not commence the action and the court dismissed the case on that ground. We found two of those cases.
The apparent conflict between the third and fourth categories of cases initially gives us pause about whether it is plain that the statutes require the district attorney to commence and prosecute actions under ORS 30.510. Half of the cases in which there was no evidence of participation by the district attorney and the court said nothing about that absence were decided between 1971 and 2000. 7 Between 1917 and 1970, a span of 53 years, every reported action under ORS 30.510 was commenced or prosecuted by the district attorney. If that were the end of the demarcation, it would be easy to explain: The modern court simply forgot the rule. However, the cases between 1861 and 1916 are quite mixed.
In 1901, and again in 1912, as we will discuss in more detail below, the Supreme Court held that the district attorney must commence or prosecute actions under the predecessors of ORS 30.510. However, in 1861, 1880, 1911, 1914, and 1916, the Supreme Court decided actions in which there is no evidence in the reported decision that the district attorney had participated in any way. In those cases, the court was silent on the matter. Thus, while in 1901 and 1912 the court appeared to require participation by the district attorney, before, between, and after those dates, the court nonetheless decided cases in which the district attorney may not have participated.
The two pre-1901 cases can be explained: At that point, the court had not yet explicitly addressed whether the action must be commenced by the district attorney.
8
In fact,
*350
the court essentially acknowledged in 1896 in
State ex rel. v. Stevens,
But in 1901 the Supreme Court decided that open question. In
State ex rel. v. Cook,
“The legislative intendment, as gathered from these sections of the statute, would seem to be that, whether the purpose of the action be to oust the intruder only, or to go further, and to instate the person entitled to the office, the action should be brought in the name of the state, either *351 upon the information of the prosecuting attorney of the district where it is triable, or on the relation of a private party. In either case, it is made the duty of the prosecuting attorney to commence and prosecute the action. * * * To ‘commence and prosecute’ has a larger significance, therefore, than merely to give assent to the bringing of an action by a private party who may become associated with the state in the prosecution of the intruder. The prosecuting attorney himself must set it in motion, and be responsible for its conduct and prosecution; and in doing this he could not do less than to sign the complaint in his official capacity, which has been held sufficient where the action is instituted in the name of the state upon the relation of a private party * * *. But unless there is some showing, either by appropriate allegations or by the official signature, indicating that the action has been commenced and is being prosecuted by the state officer, the complaint can not be held sufficient. Whether, in any case, the action may be prosecuted by the relator without the instrumentality of the state’s attorney, is a question with which we are not concerned at this time.”
Id. at 381-82 (citation omitted). Thus, the court gave to the predecessor of ORS 30.610 its plain meaning and held that an action under the predecessor of ORS 30.510 must be commenced and prosecuted by the district attorney. The final sentence of the excerpt simply emphasizes that the court was leaving open the question of the degree of the district attorney’s involvement once the case has been commenced.
Despite the apparently clear statement of the law in
Cook,
in 1911 the Supreme Court nonetheless addressed the merits of a
quo warranto
action in a case in which there is no evidence in the opinion or the briefs of district attorney participation. In
State ex rel. v. Swigert,
It is quite possible that Swigert can be distinguished from Cook because Swigert was an original proceeding in the Supreme Court under Article VII (Amended), section 2, of the Oregon Constitution. Under that provision, the Supreme Court “may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.” In Swigert, the court described the action as “in the nature of quo warranto.” Id. at 132. Although the predecessor of ORS 34.810 — codified in 1911 at Lord’s Oregon Laws, title V, chapter V, section 363 (1910) — abolished actions in the nature of quo warranto and replaced them with the statutory action, the court in Swigert may have understood the constitutional grant of original jurisdiction over quo warranto proceedings to reinvigorate the common-law doctrine notwithstanding the statutes. Hence, the constitutional grant of original Supreme Court jurisdiction may explain the apparent inconsistency between Swigert and Cook. But most importantly, Swigert did not expressly overrule the holding in Cook that a district attorney must commence and prosecute the statutory equivalent of quo warranto actions.
Furthermore, any erosion caused by
Swigert
to the rule in
Cook
was repaired by
In re State v. Millis,
On appeal, the Supreme Court held that, because the statute required actions to be “commenced” by district attorneys, and because the statute setting forth the duties of the Attorney General did not empower him to “commence” actions in which the state is a party or interested, the Attorney General was not empowered to commence actions under the statute. Thus, for the second time the Supreme Court held that the language of the predecessor of ORS 30.610 meant *353 what it said — that actions like those created by ORS 30.510 must be commenced and prosecuted by the district attorney.
But just two years later, and again in an original proceeding, the Supreme Court heard “an action in the nature of
quo warranto”
in which there is no evidence in the opinion of participation by the district attorney.
9
State v. Harris,
Two years later, the Supreme Court again heard an action in which there is no evidence in the opinion or the briefs of participation by the district attorney. In
State v. Evans,
*354 In sum, having reviewed the prior judicial constructions of ORS 30.510 and ORS 30.610 and their predecessors, we are persuaded that the rule of Cook and Millis survives, notwithstanding the occasional case that appears to lack the involvement of the district attorney. In those cases, no matter the reason the court in fact heard the case, the court never overruled Cook and Millis.
Our contextual analysis now turns to a review of the prior-enacted versions of the same statute. That review farther supports ora: conclusion that the statutory actions must be commenced and prosecuted by the district attorney.
Oregon borrowed its statutory substitute for the writ of
quo warranto
from New York.
Everding v. McGinn,
“An action may be brought by the attorney general in the name of the people of this state, upon his own information, or upon the complaint of a private party, against the party offending in the following cases:
“1. When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state [.]”
The Code of Civil Procedure of the State of New York, title XI, ch IX, § 1048 (Field et al 1850) (emphasis added).
That language mirrors the language found in the Oregon version of the statute, enacted by the territorial legislature in 1853 and codified in the Oregon Statutes of 1855. The territorial law provided, in part:
“An action may be brought by the prosecuting attorney of the district, in the name of the territory, upon his own information, or upon the complaint of a private party against the party offending, in the following cases:
*355 “1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this territory, or any office in a corporation created by the authority of this territory [,]” 10
An Act Regulating Proceedings to Vacate Charters and Letters Patent, and to Prevent the Usurpation of an Office or Franchise, ch I, § 5 (1854), in The Statutes of Oregon Enacted and Continued in Force by the Legislative Assembly 160 (1855) (emphasis added). In fact, the four sections of the territorial statute that created the four actions now codified at ORS 30.510, ORS 30.570, ORS 30.580, and ORS 30.600 each separately required that the action be “brought by the prosecuting attorney of the district, in the name of the territory.”
Thus, both the Field Code and the territorial law first identified who may bring an action to try title to public office and then specified the manner in which he could do so — i.e., upon either his own information or the complaint of a private party. The early statutes unquestionably required a state officer to bring the action even if it was “upon the complaint of a private party.”
The current version of ORS 30.510 provides, “An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party * * *.” As discussed above, at first blush the text of ORS 30.510 could lead one to conclude that the statute is disjunctive as to who may bring the action, i.e., either the district attorney or a private party. However, the Field Code and the territorial statute make it clear that the remaining disjunction in ORS 30.510 speaks to the manner in which the action may be brought. ORS 30.510 no longer addresses who must bring the action. Instead, ORS 30.610— which finds its genesis in the Deady Code of Civil Procedure of 1862 — now answers that question.
*356
The Deady Code deleted the four separate references to the prosecuting attorney in the territorial statute and compiled them in section 356 of the Deady Code — the predecessor of ORS 30.610 and a statute found in neither the Field Code nor the territorial law. Section 356 provided, in part, that “[t]he actions provided for in this title, shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable.” General Laws of Oregon, Civ Code, ch IV, title V, § 356, p 238 (
The version of the statute adopted by the Deady Code is, without substantive change, the same version codified today in the Oregon Revised Statutes. The legislature has made minor linguistic changes over the years. In 1953, when the Oregon Revised Statutes were adopted, the outdated reference to the “prosecuting attorney” was replaced with the modem “district attorney.” Further, in 1979 the legislature made the language of ORS 30.610 gender neutral and modernized the procedural aspects of the statute. Or Laws 1979, ch 284, § 66. But none of the changes affects the requirement that the district attorney commence and prosecute all actions that are brought under ORS 30.510.
Nothing in our survey of the prior-enacted versions of the Oregon statutes raises doubt about our initial conclusion that actions under ORS 30.510 must be commenced and prosecuted by the district attorney. Thus, having completed our contextual review of the statutes, we remain convinced that a private party may not bring an action under the statute unless the action is commenced and prosecuted by the district attorney, as required by ORS 30.610. Having concluded that the applicable statutes are unambiguous on that issue, we do not consider legislative history or maxims of construction.
The only remaining question is the effect of the absence of the district attorney in an action under ORS 30.510. Millis resolves that question.
*357 As discussed above, in Millis the court held that the Attorney General may not commence and prosecute an action under the predecessor of ORS 30.510. The court treated that defect as jurisdictional. The court stated:
“The matter of jurisdiction involves two elements: First, jurisdiction over the person of the defendant; and, second, jurisdiction over the subject matter or the right to try the particular case presented to the court. Here by their general appearance the defendants have submitted their persons to the jurisdiction of the court, but the court has no power to try the case presented; it being defective for want of proper authority of the officer undertaking to commence it. In other words, the condition and situation disclosed by the complaint are not those in which the power of the court may be called into action.”
Millis,
The statutes creating the action that substitutes for the common-law quo warranto action expressly require such actions to be commenced and prosecuted by the district attorney. The district attorney neither commenced nor prosecuted the action before us. The power of the court to hear an action under ORS 30.510 can be called into action only by the district attorney; no private person has that ability. In the absence of the district attorney, the trial court lacked jurisdiction over this case. Hence, the court did not err in dismissing it.
Affirmed.
Notes
Article VII (Original), section 21, provides:
“Every judge of the Supreme Court before entering upon the duties of his office shall take, subscribe, and transmit to the Secretary of State the following oath.—
“I_do solemnly swear (or affirm) that I will support the Constitution of the United States, and the constitution of the State of Oregon, and that I will faithfully, and impartially discharge the duties of a Judge of the Supreme, and Circuits Courts of said State according to the best of my ability, and that I will not accept any other office, except Judicial offices during the term for which I have been elected. —”
The oath subscribed by defendant states:
“I, Janice R. Wilson, do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of Oregon, and that I will faithfully and impartially discharge the duties of a Judge of the Circuit Court of this State, according to the best of my ability, and that I will not accept any other office, except judicial offices, during the term for which I have been elected.”
Plaintiff complains that defendant “did not take the required, qualified, original, identical, exact, true, correct, certain, and complete Oath as required by the Oregon Constitution, Article VII, (Original) [sic] section 21, and continues as a bias [sic], prejudiced, usurper and intruder.” Specifically, plaintiff points to the difference between the constitutional language “said State according” and the language used in defendant’s oath, “this state, according.” Hence, plaintiff makes a strict textualist argument. The most interesting question presented by such an argument is whether defendant was required to take the oath set forth in Article VII (Original), section 21, at all. A strict textual interpretation of that provision would require only “judges of the Supreme Court” to take the oath, and defendant is a circuit court judge and not a Supreme Court judge. Plaintiff’s textual argument would seem to leave him hoisted by his own petard. However, we need not address that question in light of our resolution of this case.
The existence of that issue has been acknowledged twice by the Supreme Court and once by us in recent cases.
See State ex rel Lincoln Loan Co. v. Court of Appeals,
The scope of the district attorney’s duties under ORS 30.620 is an interesting question. In
Everding v. McGinn,
The first anomaly is a case in which the relator and the defendant were contesting the title to the office of district attorney.
State v. Dillard,
The second anomaly is a case in which the action, a proceeding to try the rights of the defendants to hold office in a private corporation, was dismissed on the motion of the Attorney General.
State ex rel. Sealy v. Stolz,
One of those cases was
State ex rel. v. School District No. 9,
Strictly speaking, we found 12 reported decisions in this category, but two of those were Court of Appeals decisions that were reviewed by the Supreme Court.
State ex rel Eckles v. Livermore,
In chronological order, those five cases are
State ex rel Mullican v. Parsons,
State of Oregon v. McKinnon,
The records of the State of Oregon Law Library indicate that no briefs from the case are available. The records do not specify whether briefs were filed.
The territorial law required the prosecuting attorney to bring the action, rather than the Attorney General, because, at the time the statute was enacted, the Oregon Territory had no Attorney General. In fact, Oregon did not have an Attorney General until the legislature established the office in 1891.
Millis,