Pearson v. Oregon-Washington Railroad & Nav. Co.

296 P. 50, 295 P. 201, 135 Or. 336, 1931 Ore. LEXIS 27

• Court: Oregon Supreme Court
• Decided: January 6, 1931
• Status: Published

Opinions

BROWN, J.

The single question presented for determination in this cause arises out of the plaintiff’s objection to the order of the court directing a reference of the case for trial, which he asserts has resulted in the denial to him of “both the constitutional and common-law right to a jury trial.”

Oregon Code 1930, § 2-602, provides:

“When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

“(1) When the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein. * * *”

For a full discussion of this question by our court, see the early case of Tribou v. Strowbridge, 7 Or. 156. The opinion in that case was written by Mr. Justice Boise and concurred in by Kelly, C. J., and Prim, J., all being members of the Constitutional Convention. In that case it was insisted by the appellants that the trial court had no authority to refer the case to a referee, for the reason that it was an action at law. In determining the case the court, basing its ruling upon a statute identical in its provisions to the section of our code above set out, held that, when necessary to determine material issues of a cause involving the examination of accounts of either party, it was proper to appoint a referee whether the parties had consented or not. But the appellants asserted that the statute under which the referee was appointed was void, in that it was in conflict with section 17, article 1 of the Oregon Constitution providing that “in civil eases the right of trial by jury shall remain inviolate. ’ ’ Answering that contention, the court said:

“This language of the Constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the Constitution. * * * (Citations).

“The statute in question was passed by the legislature of the late Territory of Oregon in 1854, and has been copied into the present code; so that this statute has been in force since that time, and was the law of the territory at the time the Constitution was adopted, and, therefore, does not abridge the right of trial by jury as it existed when we became a state. Under this statute, cases like this have been referred and tried by a referee, without question as to the authority of the court to order the reference, for a quarter of a century; and was there doubt as to the constitutionality of tins statute, it would, under the circumstances and the sanction of long usage, have to be solved in favor of the statute. Cooley’s' Constitutional Limitations, 74; 6 Cranch, 128; 10 Wharton, 53; 3 Peters, 433.”

To similar effect, see McDonald v. American Mtge. Co., 17 Or. 626 (21 P. 883); Trummer v. Konrad, 32 Or. 54 (51 P. 447); Mitchell v. Oregon Women’s Flax-Fiber Ass’n, 38 Or. 503 (63 P. 881); Salem Traction Co. v. Anson, 41 Or. 562 (67 P. 1015, 69 P. 675); Kaston v. Paxton, 46 Or. 308 (80 P. 209, 114 Am. St. Rep. 871).

It is unnecessary to go abroad to find authority for the action of the circuit court in making the reference in the case at bar. The order appointing the referee is based wholly upon statutory authority. Moreover, the opinion rendered in the Tribou case hereinbefore discussed is plain and understandable, and has never been overturned. The plaintiff’s complaint discloses that, to determine the amount he should receive in accordance with his own averments, would require extensive examination and analysis of long and complicated accounts. It is difficult to understand how the sum of money saved to the defendant by adopting the plaintiff’s invention could be determined without a comparison of the cost of repairing the bridge under the ordinary method as represented by plaintiff with the cost under the method employed. And, to make this finding, it would be necessary to analyze all items required by each plan. We are satisfied that the procedure of the court in appointing a referee to determine the accuracy of the accounts involved herein was proper, and was not an abuse of discretion.

This case should be affirmed. It is so ordered.

Bean, C. J., and Kelly and Campbell, JJ., concur.