§ 8. Qualifications of County Officers.

No person shall be elected or appointed to a county office who shall not be an elector of the county; and all county, township, precinct, and city officers shall keep their respective offices at such places therein, and perform such duties as may be prescribed by law.

A woman not being an elector of a county is not eligible to the office of county school superintendent: State v. Stevens, 29 Or. 473, 44 Pac. 898.

§ 9. Vacancies, how Filled.

Vacancies in county, township, precinct, and city offices shall be filled in such manner as may be prescribed by law.

ARTICLE VII.

JUDICIAL DEPARTMENT.

§ 1. Judicial Power of State, in Whom Vested.

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.

JURISDICTION OF COUNTY COURTS.See post, Art. VII, § 12, and note.

County courts are courts of general and superior jurisdiction as to matters over which the statutes under this section have vested in them original and exclusive jurisdiction, and as to such matters the records of the county court are entitled to all the legal presumptions that belong to those of other courts of general and superior jurisdiction: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Holmes v. O. & C. R. R. Co., 6 Saw. 262, 9 Fed, 229; Gager v. Henry, 6 Saw. 237.

But in the exercise of its jurisdiction over the subject of laying out and opening roads it is a court of special and limited jurisdiction: Thompson v. Multnomah County, 2 Or. 40; Johns v. Marion County, 4 Or. 46; State v. Officer, 4 Or. 180.

§ 2. Supreme Court.

JURISDICTION OF JUSTICES COURT. -See §§ 926, 927, code. A municipal court may be invested with the jurisdiction of a justice of the peace within the municipality. See note to Art IV, § 23, subdiv. 1, ante.

In prescribing the limit of the amount or value over which justices courts have jurisdiction, the legislature is not restricted to the amount to which such jurisdiction extended at the time of the adoption of the constitution. The constitution by authorizing the legislature to invest justices of the peace "with limited jurisdiction" without defining what that limitation should be left it entirely to the discretion of the legislature: Noland v. Costello, 2 Or. 56.

MUNICIPAL COURT. - See preceding

note.

The right to trial by jury does not apply to a municipal court: Wong v. Astoria, 13 Or. 545, 11 Pac. 295.

Where the legislature has established a city court to try offenses against the charter and ordinances of a municipality, the jurisdiction of such a court is exclusive in the first instance, and the circuit court can only review the proceedings: State v. Haines, 35 Or. 382, 58 Pac. 39.

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.

$ 3. Term of Office.

The judges first chosen under this constitution shall allot among themselves their terms of office, so that the term of one of them shall expire in two years, one in four years, and two in six years, and thereafter one or more shall be chosen every two years, to serve for the term of six years.

See note to Art VII, § 10.

§ 4. Vacancy.

Every vacancy in the office of judge of the supreme court shall be filled by election for the remainder of the vacant term, unless it would expire at the next election, and until so filed, or when it would so expire, the governor shall fill the vacancy by appointment.

§ 5. Who to be Chief Justice.

The judge who has the shortest term to serve, or the oldest of several having such shortest term, and not holding by appointment, shall be the chief justice.

§ 6. Jurisdiction.

The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts; and every cause shall be tried, and every decision shall be made by those judges only, or a majority of them, who did not try the cause or make the decision in the circuit court.

See § 547, code, and note, as to what are final decisions within this provision.

The supreme court has jurisdiction only to revise final decisions of the circuit court. Finality must therefore be put to the suit by the circuit court before it can be reviewed in the supreme court: Shirley v. Burch, 16 Or. 4, 18 Pac. 351; Conrad v. Packing Co., 34 Or. 339, 49 Pac. 659.

Until the circuit court has acted upon a question the supreme court cannot: O'Brien v. O'Brien, 36 Or. 93, 57 Pac. 374.

This section is construed to confer jurisdiction upon the supreme court to revise all final decisions of the circuit court: In re N. P. P. B. M. v. Ah Wan, 18 Or. 344, 22 Pac. 1105; Mitchell v. Powers, 16 Or. 492,

§ 7. Terms of Supreme Court.

19 Pac. 647, 17 Or. 492, 21 Pac. 451.

The jurisdiction of the supreme court being revisory only, a judgment in the circuit court is binding until reversed: Day v. Holland, 15 Or. 466, 15 Pac. 855. The provision that the supreme court shall have jurisdiction to revise the final decisions of the circuit court is not self-executing, and the cases that may be appealed and the manner in which appeals may be taken must be prescribed by some proper authority. Where the legislature has enacted that an appeal may or may not be taken in a given case or class of cases, such determination is conclusive: Portland v. Gaston, 38 Or. 535, 63 Pac. 1051.

The terms of the supreme court shall be appointed by law; but there shall be one term at the seat of government annually. And at the close of each term the judges shall file with the secretary of state concise written statements of the decisions made at that term.

TERMS TO BE APPOINTED BY LAW. -This does not mean that the legislature shall specifically designate the time for each term of the supreme court. A term appointed by an order of court and entered

in the journal thereof in term time by authority of a statute authorizing such an order, is a term appointed by law: Moore v. Packwood, 5 Or. 325.

The circuit court shall be held twice, at least, in each year, in each county organized for judicial purposes, by one of the justices of the supreme court, at times to be appointed by law; and at such other times as may be appointed by the judges severally, in pursuance of law.

All judicial power, authority, and jurisdiction not vested by this constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the circuit courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals.

§ 10. When Supreme and Circuit Judges may be Elected in Distinct Classes Duties of Judges.

When the white population of the state shall amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty, and the other class shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as the supreme judges.

$ 11. County Judges and Terms of County Court.

There shall be elected in each county, for the term of four years, a county judge, who shall hold the county court at times to be regulated by law.

COUNTY JUDGE'S TERM OF OFFICE. -Under this section the term attaches to the person and any one elected a county judge is chosen for the full period of four

years and not merely to fill an unexpired portion of the four years for which a predecessor may have been chosen: State v. Johns, 3 Or. 538.

$12. Jurisdiction of County Courts - County Commissioners.

The county court shall have the jurisdiction pertaining to probate courts, and boards of county commissioners, and such other powers and duties, and such civil jurisdiction not exceeding the amount of value of five hundred dollars, and such criminal jurisdiction not extending to death or imprisonment in the penitentiary, as may be prescribed by law. But the legislative assembly may provide for the election of two commissioners to sit with the county judge whilst transacting county business in any or all the counties, or may provide a separate board for transacting such business.

See § 911, code, as to probate jurisdiction. The county court in probate matters is a court of general and superior jurisdiction. See note to Art VII, § 1, ante.

The appointment of guardians for infants and insane persons is the exercise of jurisdiction pertaining to probate courts: Monastes v. Catlin, 6 Or. 119.

In determining what is jurisdiction pertaining to probate courts under the constitution it is necessary to consider what jurisdiction probate courts had at the time the constitution was framed, as it is presumed the phrase "pertaining to probate courts" was used in that instrument in the sense in which it was accepted in Oregon at that time. The common law furnishes no definition of this jurisdiction and its nature and extent as understood in the United States are to be ascertained in each state separately and to some extent historically. The rule is that, unless the contrary appears, the language of the constitution is to be construed in the sense in which it is understood by the country at the time the constitution was adopted. Probate jurisdiction, as understood in the territory at that time, included the power to decree the specific performance by the administrator of

contracts made by the deceased person for the conveyance of land. A statute, therefore, providing for the exercise of such power by the court of probate is not unconstitutional: Adams v. Lewis, 5 Saw. 229. By providing for a separate tribunal to transact county business as authorized by this section, the legislature did not exhaust its power in this regard. It may change such tribunal leaving the county court to transact such business alone, or associate with him two county commissioners: State v. Steel, 39 Or. 419, 65 Pac. 516.

The county court not being invested with equitable jurisdiction, it has no power to set aside on ground of fraud a settlement between guardian and ward authorized by law: Butterick v. Richardson, 39 Or. —, 64 Pac. 390.

There is no such tribunal known to the constitution or laws as the "board of county commissioners." The county judge sitting with the two commissioners for the transaction of county business is still the county court. The provision of the code providing that certain things shall be done by the "board of county commissioners" is void: Pacific Bridge Co. v. Clackamas County, 45 Fed. 219.

13. Writs Granted by County Judge - Habeas Corpus.

The county judge may grant preliminary injunctions and such other writs as the legislative assembly may authorize him to grant, returnable to the circuit court, or otherwise, as may be provided by law; and may hear and decide questions arising upon habeas corpus: Provided, Such decision be not against the authority or proceedings of a court or judge of equal or higher jurisdiction.

$ 14. Expenses of Court in Certain Counties.

The counties having less than ten thousand white inhabitants shall be reimbursed, wholly or in part, for the salary and expenses of the county court, by fees, percentage, and other equitable taxation of the business done in said court, and in the office of the county clerk.

§ 15. County Clerk, etc.— Legislature may Divide Duties of County Clerk.

A county clerk shall be elected in each county for the term of two years, who shall keep all the public records, books, and papers of the county, record conveyances, and perform the duties of clerk of the circuit and county courts, and such other duties as may be prescribed by law; but whenever the number of voters in any county shall exceed twelve hundred, the legislative assembly may authorize the election of one person as clerk of the circuit court, one person as clerk of the county court, and one person recorder of conveyances.

§ 16. Sheriff.

A sheriff shall be elected in each county for the term of two years, who shall be the ministerial officer of the circuit and county courts, and shall perform such other duties as may be prescribed by law.

See Art. VI, § 6, ante. The duties of sheriffs are not confined to those functions which were accustomed to be performed by sheriffs, such as executing

17. Prosecuting Attorneys.

the orders, judgments and processes of courts and matters connected therewith. Other duties may be prescribed by law: Lane v. Coos County, 10 Or. 123.

There shall be elected by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the state, and of the counties within their respective districts, and shall perform such duties pertaining to the administration of law and general police as the legislative assembly may direct.

The powers of the district attorney in the absence of statutory regulations are those of the attorney-general at common law: State v. Douglas County Road Co., 10 Or. 201; State v. Lord, 28 Or. 528, 43 Pac. 471. The duties of the offices of prosecuting attorney and United States district

§ 18. Jurors.

attorney are incompatible and the acceptance of the latter by a person holding the former will be deemed a resignation thereof: State v. Gibbs, Oregon supreme court, January term, 1873. (This case does not appear in the Oregon reports.)

The legislative assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors; and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. But the legislative assembly may modify or abolish grand juries.

DRAWING OF GRAND JURORS.-An act which provides that the clerk shall draw a grand jury from the body of the jurors prior to the term of court is void, being in conflict with the provision that the grand jury shall be drawn "out of the whole number in attendance at the court," and an indictment by a grand jury so drawn is invalid: State v. Lawrence, 12 Or. 297, 7 Pac. 116.

Where, however, a grand jury was drawn under a valid law an irregularity in the choice of one of its number will not render its proceedings void: State v. Witt, 33 Or. 595. 56 Pac. 1053.

$1258, permitting a district attorney to file information charging crimes in place of

presentment by grand juries, is not obnoxious to this section: State v. Tucker, 36 Or. 297, 61 Pac. 894.

§ 965 of the code, imposing upon the court the duty of ascertaining whether a person drawn as a juror is a citizen of the United States and of the county, of sound mind, etc., is constitutional within this section of the constitution, since this section does not prescribe the method of determining who are the most competent of the permanent citizens, nor grant the right to challenge the array or individual juror, and it was therefore proper for the legislature to provide the exclusive method of determining their qualifications: State v. Carlson, 62 Pac. 1016.