Ex parte Jerman

112 P. 416, 57 Or. 387, 1910 Ore. LEXIS 56

• Court: Oregon Supreme Court
• Decided: December 20, 1910
• Status: Published

Opinions

Mr. Justice McBride

delivered the opinion of the court.

1. This is the first application for the exercise of the original jurisdiction of this court conferred by the constitutional amendment, adopted at the last general election. Counsel for petitioners in the able brief filed by him has, with a fairness as commendable as it is rare, cited the leading authorities both for and against the position contended for by him.

Under the provisions of the original constitution cited in the statement of the case, we think there can be little question that this court had no power to issue the writ; that power being vested exclusively in the circuit and county courts. It is also apparent that, since the amendment, while such power may be exercised by this court in its discretion, the authority of the circuit and county courts in that respect is in no manner taken away or abridged. Until future legislation shall change them, the circuit and county courts continue to exist and to exercise the same powers and jurisdiction in respect to writs of this character which they exercised before the adoption of the amendment. Section 2, above quoted, is clear and distinct on this point, while Section 5 distinctly recognizes the continued existence and authority of the circuit court by providing that “no person shall be charged in any circuit court with the commission of any crime, except by indictment.”

Such being the condition, we are now called upon to determine whether the discretion given us by the late amendment should be exercised in this case. It is evident from the nature of the language used, “the supreme court may, in its own discretion, take jurisdiction,” that it was the intention of the framers of this amendment to allow to this court the widest latitude consistent with law and justice in determining whether it would act in any given case. It does not, in terms, invest the court with positive jurisdiction. It permits them to take it, and invests the court with a peculiar discretion to do so or refrain from so doing. It does not stop with the usual formula, “in their discretion,” but goes further and is more emphatic, using the term “in their own discretion.”

2. “Discretion” is defined as the discernment of what is right and proper, “as deliberate judgment.” Citizens’ St. R. Co. v. Heath, 29 Ind. App. 395 (62 N. E. 107)! “Discretion does mean and can mean nothing else but exercising the best of the court’s judgment upon the occasion that calls for it.” Tompkins v. Sands, 8 Wend. (N. Y.) 462 (24 Am. Dec. 46). “Discretion, when vested in an officer, does not mean absolute or arbitrary power. The discretion must be exercised in a reasonable manner, and not maliciously, wantonly, and arbitrarily, to the wrong or injury of another.” Nicklaus v. Goodspeed, 56 Or. 184 (108 Pac. 135.) See, also, “Adjudged Words and Phrases,” title “Discretion.”

We are of the opinion that it was not the intention of the framers of the late amendment to thrust upon this court the burden of hearing, considering, and deciding in the first instance every application for quo warranto, mandamus, and habeas corpus which should be presented to it. Such a construction would overwhelm us with a mass of original business, including the examination of witnesses, hearing arguments of counsel, and considering the merits of the causes presented, which would interfere seriously with those duties for which this court was primarily constituted, namely, the hearing and decision of cases coming here in the usual manner upon appeal. And we are also of the opinion that, before taking jurisdiction in' any of the cases enumerated, we should carefully consider, first, the condition of the business of this court; second, the hardships to the petitioner incident to a denial of the writ; third, whether the petitioner has any plain, speedy, adequate remedy in the circuit court; and, fourth, whether he has a remedy by appeal.

As to the first, it is well known that, at the present time, the docket of this court is greatly congested, and it follows that, if we take jurisdiction of this matter and proceed with a hearing, other criminal cases equally meritorious, some involving the question of life and death, and nearly all involving the present imprisonment of the parties concerned, will have to be postponed to the consideration of the case of these petitioners who are confessedly guilty of some crime,- the particulars of which do not appear.

It does appear from the imperfect record that they appeared in court, pleaded guilty to an offense against the laws of this State, and craved the immediate sentence of the court therefor, and that thereupon the court sentenced them to an indeterminate term in the penitentiary. So far the proceedings seem to have been regular, but the law makes it the duty of the clerk to enter in the judgment the crime for which the defendant was sentenced, and this he has failed to do, so that Roberto and Martinez are in danger of remaining indefinitely in the bastile, unless this inadvertence is corrected. But these gentlemen have several plain, speedy, and adequate remedies. An obvious one is to apply to the court to require the clerk to correct the judgment entry to correspond with the facts. Another is to appeal to this court in the regular way and have the judgment of the circuit court reversed or amended. And a third is to apply for a. writ of habeas corpus before a judge of the circuit court, and find their redress. With all these remedies in other courts open to them, we do not think this is a case wherein this court should exercise the extraordinary jurisdiction conferred by the recent amendment to the detriment of other and more meritorious business.

The petition is denied. Denied.