In re Shaw

171 P. 896, 88 Or. 174, 1918 Ore. LEXIS 21

• Court: Oregon Supreme Court
• Decided: April 2, 1918
• Status: Published

Opinion

BENSON, J.

1. Considering petitioner’s contentions in the order in which he presents them, it may be said that in 1903 the legislature enacted a charter for the City of Portland of which Section 329, in part, reads as follows:

“Said municipal court shall have jurisdiction of all crimes defined by ordinances of the City of Portland # * and shall likewise have, within the City of Portland, the jurisdiction and.authority of a justice of the peace and committing magistrate, and shall be subject to all the general laws of the state prescribing the duties of a justice of the peace and the mode of performing them, except as herein otherwise provided.”

The jurisdiction thus conferred has never been withdrawn and whatever may be the effect of the act of 1913 as to the abolition of Justice Courts, eo nomine, there is nothing in the act which is inconsistent with this grant of jurisdiction and petitioner’s contention utterly fails.

As to the proposition that the complaint does not state facts constituting a crime, it suffices to say that in Ex parte Stacey, 45 Or. 85, 88 (75 Pac. 1060), this court speaking through Mr. Justice Moore, says:

“The question whether the facts averred in the information render it vulnerable to a demurrer cannot be considered except on appeal, and, if any error was committed in this respect, the judgment was only voidable, and not void, and, this being so, habeas corpus will not lie to correct it.”

The rule as here announced was reiterated in Ex parte Foster, 69 Or. 319 (138 Pac. 849). The judgment is therefore reversed' and the cause remanded for such further proceedings as may be deemed necessary and not inconsistent with this opinion.

Reversed and Remanded.

McBride, 0. J., Moore and McCamant, JJ., concur.