Feb. 14, 1859. Term of office. 13 Or. 389. Vacancy. Who to be chief justice. Jurisdiction. 15 Or. 466. 16 Or. 4. 16 Or. 492. 17 Or. 492. 18 Or. 344. Terms of supreme court. spective 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. 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. § 4. Every vacancy in the office of judge of the su preme 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. 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. 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. § 7. 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, 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. § 8. The circuit court shall be held twice, at least, in Feb. 14, 1859. each year, in each county organized for judicial purposes, Circuit courts. 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. 5 Or. 373. § 9. All judicial power, authority, and jurisdiction not Jurisdiction. vested by this constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the 12 Or. 208. circuit courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals. shall be the final judge of the elec- 14 Or. 344. 16 Or. 209. and circuit judges may be elected in dis City council may be made final judge of election of mayor. This section of the constitution is not violated by a provision in the charter of a city that the common council § 10. When the white population of the state shall when supreme amount to two hundred thousand, the legislative assembly may provide for the election of supreme and circuit tinct classes. judges in distinct classes, one of which classes shall con- 13 Or. 398. sist 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 Duties of. full terms without allotment, and who shall take the same oath as the supreme judges. Election of judges. In an act providing for the election of supreme and circuit judges in distinct classes, a provision for the appointment by the governor of judges to fill the offi ces thus created, until the next gen- § 11. 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 County judges county court. and terms of county courts. 12. The county court shall have the jurisdiction Jurisdiction of pertaining to probate courts, and boards of county commissioners, and such other powers and duties, and such 19 Or. 183. civil jurisdiction not exceeding the amount of value of 17 Or. 599. Feb. 14, 1859. missioners. 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 County com 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. Writs granted by county judge. Habeas corpus. Expenses of court in cer Jurisdiction pertaining to probate courts. 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 was understood in the country at the time the constitution was adopted. And probate jurisdiction, as understood in the territory at that time, included the power to decree 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. County court in probate is a court of general and superior juris diction: See note to § 1 of art. 8. § 13. 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. The counties having less than ten thousand tain counties. white inhabitants shall be reimbursed, wholly or in part, for the salary and expenses of the county court, by fees, per centage, and other equitable taxation of the business done in said court, and in the office of the county clerk. § 15. 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 pre County clerk, etc. scribed by law; but whenever the number of voters in Feb. 14, 1859. any county shall exceed twelve hundred, the legislative Legislature assembly may authorize the election of one person as the duties of clerk of the circuit court, one person as clerk of the county court, and one person recorder of conveyances. may divide county clerk 10 Or. 123. § 16. A sheriff shall be elected in each county for Sheriff. 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. attorneys. § 17. There shall be elected by districts comprised of Prosecuting 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. Prosecuting attorney cannot be United States district attor ney. The duties of the offices of prosecuting attorney and United States district attorney are incompatible, and the acceptance of the latter by a person holding the former § 18. The legislative assembly shall so provide that Jurors. 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 quencies. § 19. Public officers shall not be impeached; but in- omcial delincompetency, corruption, malfeasance, or delinquency in office may be tried in the same manner as criminal offenses, and judgment may be given of dismissal from office, and such further punishment as may have been prescribed by law. Feb. 14, 1859. § 20. The governor may remove from office a judge of Removal of the supreme court, or prosecuting attorney, upon the judges.. Oath of office. 13 Or. 390. joint resolution of the legislative assembly, in which two thirds of the members elected to each house shall concur, for incompetency, corruption, malfeasance, or delinquency in office, or other sufficient cause stated in such resolution. § 21. Every judge of the supreme court, before entering upon the duties of his office, shall take and 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 circuit 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." Superintendent of public instruction. Common school fund. ARTICLE VIII. EDUCATION AND SCHOOL LANDS. § 1. The governor shall be superintendent of public instruction, and his powers and duties in that capacity shall be such as may be prescribed by law; but after the term of five years from the adoption of this constitution, it shall be competent for the legislative assembly to provide by law for the election of a superintendent, to provide for his compensation, and prescribe his powers and duties. § 2. The proceeds of all the lands which have been, or hereafter may be, granted to this state, for educational purposes (excepting the lands heretofore granted to and (aid) in the establishment of a university), all the moneys and clear proceeds of all property which may accrue to the state by escheat or forfeiture; all moneys which may be paid as exemption from military duty; the proceeds |