State v. Hodgin

| Or. | Feb 9, 1915

Mr. Justice Benson

delivered the opinion of the court.

Plaintiff contends that, after the act of 1913 became effective, he still held the office of district attorney for Union County by virtue of his election in 1910, and that Section 1 of Article XV of the Constitution of Oregon prevents the legislature from declaring a vacancy which may be filled by appointment. This section reads:

“All officers, except members of the legislative assembly, shall hold their offices until their successors are elected and qualified. ’ ’

Defendant contends that the act of 1913, providing for a district attorney for each county, “abolished every then existing judicial district in the state and created new ones, of one county each, so far as the election of district attorneys is concerned.” Defendant also contends that, after the act of 1913 became effective, plaintiff held the office, not by virtue of his election in 1910, but by virtue of a legislative appointment.

1. The case has been presented both in the briefs and the oral argument, from various points of view; but we are of opinion that the sole question for determination is this: Did plaintiff, after the act of 1913 became effective, hold the office by virtue of his election in 1910, or did he hold by virtue of a legislative appointment? If he held by virtue of the election, the constitutional provision (Article XV, Section 1), controls, and the legislature had no power to declare a vacancy. In, the case of Stocking v. State, 7 Ind. 326, Mr. Justice Stuart says:

In Banc. Statement by Mr. Justice Burnett.

This was an action at law in the nature of quo ivarranlo, commenced in this court, in which a judgment of ouster was rendered February 9, 1915, excluding the defendant from the office of district attorney for Union County, and charging him with the costs and disbursements of the action, taxed at $60. ' The plaintiff has filed a praecipe for execution to the sheriff of that county on the money judgment. By direction of the court the parties filed briefs for and against the motion, which have had our consideration.

“We lay no stress on the declaration of the legislature that there was a vacancy’ in the office of circuit judge of the new circuit. If there was a vacancy, it existed independent of that declaration. If there was no vacancy, that body could not create one by a declaratory enactment. ’ ’

This language was quoted with approval by Mr. Justice Lord of this court, in the case of Cline v. Greenwood, 10 Or. 238, and this view is sustained by the language of Article XY, Section 1, of the Constitution, supra.

2. We come, then, to the act of 1913 relating to the office of district attorney, and, after a careful consideration of its several provisions, we are convinced that the legislature never intended to abrogate the office tenure of the district attorneys in office at the time when the act became effective, but merely to reduce the area of each one’s district to the county of which he was then a resident. The plaintiff held his office, then, not by virtue of a legislative appointment, but because he had been elected thereto, and since no election of a successor was had in Union County, in November, 1914, there was no vacancy in January, 1915, which the Governor was authorized to fill.

It follows that the judgment must be entered for plaintiff. Writ Allowed. Rehearing Denied.

Order for execution to issue June 15, 1915.

On Praecipe for Execution.

(149 Pac. 530.)

Execution to Issue.

For the plaintiff there was a brief over the name of Messrs. Crawford & Eakin. For defendant there was a brief submitted by Mr. John S. Hodgin. Mr. Justice Burnett

delivered the opinion of the court.

3. The defendant charges that, because no preliminary notice thereof was given, the proceeding was violated ab initio of Rule 33 of this court, reading thus:

“No writ of habeas corpus, or other writ of original jurisdiction will issue from this court when the applicant has a full, speedy, and adequate remedy in the Circuit Court, except by permission of the court, or a justice thereof, on notice to the adverse party.”

In our judgment this objection was waived by the defendant’s answering to the merits of the action. In respect to his complaint that the matter could have been heard at his home in Union County before the Circuit Court there, we cannot now indulge in balancing the relative convenience of an initial hearing in the Circuit Court, plus a very probable appeal, as against an original proceeding in the first instance in this court.

4. Article VII, Section 2, of the Constitution of this state, in its amended form, declares:

“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. But the Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.”

It is by virtue of the last clause of this section that this court entertained the prosecution of this action as an original proceeding here. The meaning and effect of that constitutional precept is to ingraft upon the authority of this court the procedure in such cases as defined in the Code to be exercised here in like manner as in-the Circuit Court: Phy v. Wright, 75 Or. 428" court="Or." date_filed="1915-02-09" href="https://app.midpage.ai/document/phy-v-wright-6904616?utm_source=webapp" opinion_id="6904616">75 Or. 428 (147 Pac. 381). One of the incidents accompanying cases of this kind is the matter of costs as defined in Section 562, L. O. L., where it is said that such charges are allowed, of course, to the plaintiff upon a judgment in his favor in an action provided for in Chapters 4 and 5 of Title V of the Code, which include the very kind of action here under consideration. All the features of the original procedure as defined in the Code passed to this court with the constitutional grant of power to which reference has been made. Ve conclude that we had authority to render judgment for costs and disbursements in favor of the prevailing party.

5. Some question is made for the first time as to the amount of the items, but the opportunity to urge such opposition is past, because Section 569, L. O. L., says that the losing party must file his objections within five days from the expiration of the time allowed to file the original statement of costs and disbursements. The period thus limited has long since elapsed.

6. Having shown onr authority to render the judgment we pass to the consideration of the means of enforcing it. The following provisions of the Code apply here:

Section 213, L. O. L.:

“The party in whose favor a judgment is given, which requires the payment of money, the delivery of real or personal property, or either of them, may at any time after the entry thereof have a writ of execution issued for its enforcement, as provided in this chapter.”

Section 215, L. O. L.:

“The writ of execution shall be issued by the cleric and directed to the sheriff. It shall contain the name of the court, the names of the parties to the action, and the title thereof; it shall substantially describe the judgment, and if it be for money, shall state the amount actually due thereon, and shall require the sheriff substantially as follows: (1) * * Otherwise, it shall require the sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of the real property belonging to him. * * ”

In Section 216, L. O. L., it is said:

“When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county in this state. ’ ’

It will be observed that the right to issue execution is not confined to any particular judicial tribunal. The plain deduction is that any court having authority to render judgment is necessarily vested with power to enforce its decision. Moreover, it is said in Section 983, L. O. L.:

“When jurisdiction is, by the organic law of this state, or by this Code, or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the. jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

This fortifies and more particularly enunciates the principle that the right to enforce its decree is inherent in any court of original jurisdiction. Such power having been vested in this court as to the. proceeding named, the authority to enforce the same is necessarily included. The means adapted to that end are pointed out in the Code, and it is not only within the spirit, but also within the letter, of the statute to hold that execution directed to the sheriff of any county in the state is an appropriate exercise of the prerogative of this court in a case of original jurisdiction.

Let the execution issue to the sheriff of Union County, as requested in the praecipe.

Execution to Issue.