In re Clark

154 P. 748, 79 Or. 325, 1916 Ore. LEXIS 165

• Court: Oregon Supreme Court
• Decided: February 1, 1916
• Status: Published

Opinions

Mr. Justice Benson

delivered the opinion of the court.

On April 29, 1915, the petitioner was indicted for the crime of willfully and fraudulently altering and destroying white ballots cast at an election. Thereafter lie entered a plea of not guilty, and on May 17, 1915, a trial was had in which the jury was discharged for inability to agree upon a verdict. Another trial was begun on May 25th of the same year, which resulted in a conviction, and thereafter the verdict was set aside for the reason that in the interval the official stenographer, who reported the trial, died, and it was therefore impossible to secure a record thereof. About December 10, 1915, the district attorney moved to dismiss the indictment under Section 1704, L. O. L., and tendered a written order reciting the reasons for the signature of Judge Kavanaugh, to whom the motion was presented, and it was by him denied. The record discloses that a like motion had previously been presented to and denied by two other circuit judges of Multnomah County. Thereupon the petitioner applied to this court for a peremptory writ of mandamus requiring Judge Kavanaugh to sign the order of dismissal. In response to the petition an alternative writ was issued by this court, and an answer thereto was duly filed, to which the petitioner demurs. Section 1704, L. O. L., upon which this proceeding is based, reads as follows:

“The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed; hut in that case, the reasons of the dismissal must be set forth in the order, which must be entered in the journal.”

The petitioner contends that the word “may” in the above section means “must,” and that the lower court has' no discretion in the premises, but must sign the order of dismissal when requested by the district attorney. The law above quoted was Section 323 of Deady’s Code, and was a part of Chapter 31 thereof, as enacted in 1864. In this chapter there are seven sections, enacted at the same time, all being in relation to the “dismissal of actions after indictment for want of prosecution or otherwise.” . In the other sections of the chapter which provide for the dismissal, the word “must” is used. It seems clear that the legislature had the intention of differentiating them when in this section it used the word “may.” In fact, the language of the section itself, taken alone, can lead to but one conclusion, and that is that the court is expected to use judicial discretion in furtherance of justice.

“Mandamus will not lie to control the exercise of the discretion of any court when the act complained of is either judicial or quasi judicial, and while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in any particular way”: 26 Cyc. 158; Croasman v. Kincaid, 31 Or. 445 (49 Pac. 764); Irwin v. Kincaid, 31 Or. 478 (49 Pac. 765).

It follows that the demurrer to the answer must be overruled and the writ dismissed, and it is so ordered.

Demurrer Overruled. Writ Dismissed.