"This is an original proceeding by Quo Warranto... challenging the right of the defendant .James W. Crawford, a duly elected, qualified, and acting circuit judge of the state of Oregon for the fourth judicial district (Multnomah county), to sit temporarily as a member ofty), to sit temporarily as a member of the Supreme Court of Oregon"
"The question is an important and delicate one, because the decision will
directly affect the problem of this
court which gave rise to the enactment of the legislation involved.
cannot, however, take into account considerations of expediency
in making our decision; our sole duty is to determine whether the
statute squares with the Constitution and render judgement accordingly.
ORS 30.510, in part provides:
"An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relationthe relation of a private party against the person offending, in the following cases:
"(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, ..." state; or, ..."
&nnbsp; (Italics Ours (the Or Sup Ct's))
This enactment is the statutory equivalent of the common-law writ of quo
warranto, and an action commenced under it is generally referred to
as a proceeding in quo warranto. ... It is the remedy or proceeding
by which is determined the legality of a claim which a party assertsarty asserts to
the use or exercise of an office or franchise and ousts the holder from
its enjoyment, if the claim is not well founded. 44 Am Jur
94, Quo Warranto ss 8; 44 Am Jur 100, Quo Warranto ss 22. In 74 CJS 197,
Quo Warranto ss 4, the rule is stated thus:
"In the absence of constitutional or statutory regulations providing otherwise, quo warranto
proceedings are the only proper remedy in cases in which they are available. Thus quo warranto, or a proceeding in the nature thereof, is the sole and exclusive remedy and method by which varius matters may be tried and determined, as for example, the right and title to office, ... " (Italics Ours (the Or Sup Ct's))
&nbnbsp; 9, 10. Having been appointed to sit as a member of this court pursuant to the provisions of ORS 2.060, defendant has become a defacto judge thereof; he acts under color of authority. Acts performed by him in that capacity are not invalid. A judge defacto is, to all intents and purposes, a judge dejure as to all persons except the state, and continues as such until he is properly ousted from offisted from office. He is not a usurper. His acts or his right to act, as a defacto judge, cannot be collaterally attacked. His title or right to the office can be determined only in quo warranto proceedings, brought by or in the name of the state. Here the attack is direct by quo warranto, and the question of the right of the defendant to sit as a member of this court is squarely presented. The color of authority (ORS 2.060) under which defendant assumes to act being unconstitutional and void, defendant is not entitled to occupy the position to which he was appointed by the Supreme Court. 30 Am Jur 806, Judges ss 102.
&nbs ss 102.
(Underlining & Bold added for emphis by Charles Bruce)