Oregon State Grange v. McKay

239 P.2d 834, 238 P.2d 778, 193 Or. 627, 1951 Ore. LEXIS 319

• Court: Oregon Supreme Court
• Decided: December 12, 1951
• Status: Published

Opinions

PER CURIAM.

This is a proceeding in mandamus. The Circuit Court sustained a demurrer to the alternative writ and, the relators having refused to plead further, entered judgment for the defendant. Relators appeal.

The purpose of the action, which was commenced by the Oregon State Grange and others, was to compel the defendant, Douglas McKay, governor of the state of Oregon, to rescind a proclamation issued by him April 5, 1951, putting into effect what is popularly known as “daylight saving time.” Chapter 373, Oregon Laws, 1949, which was approved by the voters on referendum at the general election held November 7, 1950 (Oregon Laws 1051, p. 12), authorizes the governor, after having made a formal finding of fact that “the economy and general welfare of this state are placed at material disadvantage by lack of uniformity between standard Oregon time as herein established and the time in general use in the states bordering on Oregon” to “by proclamation published throughout the state vary standard Oregon time as herein established by not more than one hour and for such period as may be necessary to eliminate such condition.” Pursuant to the statute the governor proclaimed that ‘ ‘ Oregon standard time shall be advanced one hour throughout the State of Oregon during a period to begin at 12:01 a. m., Sunday, April 29, 1951, and to end at 12:00 p. m., Sunday, September 30,1951, after which Oregon standard time shall be and exist.”

It is the contention of the relators that the governor exceeded his authority because, as they assert, the condition stated in the statute had not arisen, and the proclamation, therefore, was, in the language of the alternative writ, “illegal and unlawful and contrary to the laws of the State of Oregon.”

The period of daylight saving time proclaimed by the governor expired on September 30,1951, at 12:00 p. m. The proclamation is functus officio, and no judgment of this court would be effective to grant the relief which the relators seek. This has become a moot case by the passage of time. The rule governing appellate courts in such circumstances is clearly stated by Chief Justice Robert S. Bean in State ex rel. v. Grand Jury, 37 Or. 542, 62 P. 208. The opinion is brief and we copy it in full :

“This is a mandamus proceeding, commenced in April, 1897, to compel the then grand jury of Multnomah County to inquire into a criminal charge against one Anderson, who had previously been committed to await its action. The grand jurors answered, setting up matters which they claimed constituted a defense to the alternative writ. A demurrer to the answer was overruled, and, the plaintiff declining to proceed or plead further, the writ was dismissed, and the plaintiff appeals.

“About the time the transcript was filed, or soon thereafter, the grand jury was discharged, so that it is now impossible for the court to enforce a judgment against it, if one should be rendered. A grand jury is temporary in its character, and, when discharged, becomes functus officio, and thus differs from a permanent office. An appellate court, like every other judicial tribunal, is empowered to decide actual controversies only, and not to give opinions upon mooted questions, or mere abstract propositions of law. The rule is general, therefore, that when an event occurs pending an appeal which renders it impossible for the court to grant the relief sought, it will not proceed to final judgment, but will dismiss the appeal (Jacksonville School Dist. v. Crowell, 33 Or 11, 52 Pac. 693; Moores v. Moores, 36 Or. 261, 59 Pac. 327; California v. San Pablo & T. R. Co., 149 U. S. 308, 13 Sup. Ct. 876; Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132; People ex rel. v. Common Council of City of Troy, 82 N. Y. 575); and, as said by the Supreme Court of the United States, in California v. San Pablo & T. R. Co., 149 U. S. 308, 13 Sup. Ct. 876, ‘no stipulation of parties or counsel, whether in the case before the court or in any other case can enlarge the power or affect the duty of the court in this regard.’ The appeal will therefore be dismissed.”

Among numerous other Oregon cases applying these principles see Francis v. Schuman, 74 Or. 454, 145 P. 668; Dimick v. Latourette, 72 Or. 231, 143 P. 896; Portland v. Investment Company, 59 Or. 598, 117 P. 991; State ex rel. v. Webster, 58 Or. 376, 114 P. 932; State ex rel. v. Fields, 53 Or. 453, 101 P. 218. For a full review of the authorities from other jurisdictions see State ex rel. v. Jones, 61 Wyo. 350, 157 P. 2d 993. See, also, 3 Am. Jur., Appeal and Error, 314, § 737; 4 C.J.S., Appeal and Error, 1967, § 1362.

The appeal is dismissed.

Kell & Hamilton, of Portland, for the petition. George Kewner, Attorney General, and E. G. Foxley, Deputy Attorney General, of Salem, contra.