State ex rel. Carson v. Kozer
State ex rel. Carson v. Kozer
Opinion of the Court
The legislative assembly of the state at its thirty-third session enacted a law regulating the control and sale of certain tobacco products, providing for assessment and collection of an excise tax on sales, of the disposal of license fees and taxes, and other purposes not necessary to mention. Cer
As part of the amendment of Article VII of the Constitution, adopted by the people in 1910, it is laid down in Section 2-b of that article as follows:
“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.”
Under this section it is clear that the only original jurisdiction awarded this court by the fundamental law is in the proceedings last above named. It has no authority to entertain an original proceeding in the matter of review. Moreover, it is provided in Section 603, Or. L., as follows:
The following section reads thus:
“The writ shall be allowed by the circuit court or judge thereof, or by the county court or judge of the county wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff, describing the same with convenient certainty, and setting forth the errors alleged to have been committed therein. Such petition shall be signed by the plaintiff or his attorney, and verified by the certificate of an attorney of the court, to the effect that he has examined the process or proceeding and the decision or determination therein, and that the same is erroneous as alleged in said petition.”
Under the old system embodied in the Constitution, it was said in Section 9 of Article VII that:
“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.”
This section has not been modified by subsequent legislation, as might have been done under Section 2-b of the same article. The Circuit Court, therefore, is not a court of inferior jurisdiction within the meaning of the statute on writ of review. This must be true because only by the Circuit Court or judge thereof, or the County Court or judge of the county, can a writ of review be allowed. The mention of mandamtts, quo ivarranto and habeas corpus pro
The legislative power of the state had authority, and it has thus expressed it, to put a limit on the meticulous rigmarole which has been built up around the initiative and referendum system. Neither appeal nor review is an inalienable right but merely a privilege which can be exercised only in cases clearly awarding either remedy.
The motion to quash the writ is allowed and the proceeding dismissed.
Dismissed.
Reference
- Full Case Name
- STATE ex Rel. JOHN H. CARSON v. SAM A. KOZER
- Cited By
- 2 cases
- Status
- Published