IN BANC.
PETITION AND WRIT DISMISSED. This is an original proceeding in this court against the judge of the Circuit Court for Deschutes County, wherein it is sought by mandamus to compel him to call in a circuit judge from some other court, or to apply to the Chief Justice of this court to send a judge to try a case then pending in the Circuit Court of that county. Sections 45 — 1 and 45 — 2 Oregon Laws read as follows:
"No judge of a Circuit Court of the State of Oregon shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the suit or action to another department of the same court, or call in a judge from some other court, or apply to the chief justice of (the) Supreme Court to send a judge to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court.
"Any party to or any attorney appearing in any action, suit or proceeding in a Circuit Court, may establish such prejudice by motion supported by affidavit that the judge before whom the action or suit is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair trial before such judge."
From the writ issued out of this court it appears that a civil action was pending in the Circuit Court *Page 9 which had been tried resulting in a verdict for the plaintiff and a consequent judgment which the Circuit Court set aside and ordered a new trial. At this stage of the proceedings, the plaintiff filed an affidavit of prejudice in conformity with the sections of the Code above set out. The writ has been answered and the cause heard, and much has been said for and against the constitutionality of the law.
In passing, it seems apropos to quote a comment by Mr. Justice VAN VALKENBURGH, in Conn v. Chadwick Co., 17 Fla. 428, concerning a similar statute:
"Until now it has been, as I supposed, universally conceded that the Constitution had vested the judicial power in the courts. Now, it seems to be claimed that the Legislature has the power to invest a party to a suit, or his attorney, with the judicial function to determine the disqualification of the Justices."
In that case however, the learned justice declined to pass upon the constitutionality of the statute and determined the issue on other grounds. Neither will we decide this case upon the constitutional question, for as said by Mr. Justice BROWN inDavis v. Smith, In re Roedler's Estate, 110 Or. 147 (22 P. 301):
"This court will not decide a case upon the question of the constitutionality of a legislative act, whenever there appear of record other grounds sufficient to sustain a proper disposition of the case in judgment. Elliott v. Oliver, 22 Or. 44 (29 P. 1). Also see Briedwell v. Henderson, 99 Or. 506 (195 P. 575), and the Oregon cases there cited."
State v. Stilwell, 100 Or. 637 (198 P. 559), cited by the petitioner, is authority for the principle that
"when a statute is copied from the laws of another state, it is usually assumed that it is taken with the *Page 10 construction placed upon it by the courts in which it originated."
In State ex rel. v. Clifford, 65 Wn. 313 (118 P. 40), the Supreme Court of that state held that the statute, which is almost word for word like ours and from which ours was taken, should be so construed that a party shall not be
"allowed to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question."
In that case, all the court had done before the affidavit of prejudice was filed was to deny an application for postponement; yet that was enough to prevent the operation of the affidavit. Much greater is the reason for a like ruling in this case, where the plaintiff waited until the cause had been once tried before the judge whose qualification was thus tardily attacked. And again in State ex rel. v. Superior Court, 114 Wn. 335 (195 P. 25), the same court reviews the precedents in that state and concludes that where any decision has been made by the trial court, it is too late to file an affidavit of the kind herein questioned. The precept is thus stated there:
"The point we wish to emphasize is that a motion for a change of judges supported by an affidavit of prejudice, is timely made if filed and called to the attention of the court before it has made any ruling whatsoever in the case, either on the motion of the party making the affidavit or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made."
In Harju v. Anderson, 114 Or. 352 (225 P. 1100), the late Mr. Justice McCOURT considering a *Page 11 similar situation, quoted the above excerpt and went on to say:
"The foregoing rule announced by the Washington court conforms to the accepted ideas of practice and fairness, and we approve the same for application in this state in respect to Circuit Courts in counties like Clatsop County, where there is no presiding judge who hears motions and demurrers, and assigns cases to the other departments of the Circuit Court for trial."
Here the petitioner for the writ seems to have experimented with the court presided over by Judge DUFFY and, having encountered an adverse ruling, has concluded to file his affidavit of prejudice, but according to the construction of an identical statute by the Supreme Court of Washington and adopted by this court in Harju v. Anderson, supra, his affidavit came too late and presented no question calling for the operation of the statute upon which the petitioner relies.
The petition and the writ are dismissed.
PETITION AND WRIT DISMISSED.