concurring.
I concur in the result reached in the court’s opinion and will state an alternative analysis on which I think the decision should be based.
At the crux of the majority opinion is the reliance on petitioner’s argument outlined in his brief that the police officer had “unbridled discretion” to determine the appeal route by checking one of two boxes on the uniform citation form indicating a violation of either a city ordinance or a state statute and designating the court in which the original trial would be held. However, at oral argument, petitioner abandoned this argument and conceded that the city police officer did not have unbridled discretion.
“I want to attempt to narrow the issues here a little bit so that we can focus on what the real issue is. I’ll concede of course that consistent policy can prevent the haphazard administration of the city ordinance; I’ll even concede that the City of Salem may have such a policy in this case. The reason, however, that the scheme of the ordinances and the statutes is a violation of Article I Section 20 in this case — is *272that the City of Salem’s policy did not cover and could not cover all citizens similarly situated. And this is the major distinction that takes it out of the similarity of reasoning that has gone on with Clark and Edmonson and Freeland. In those cases, the issue was whether a consistently applied policy of administration could create, even though there were two alternative routes of procedure, to create terms by which there would be an appropriate application of the State’s procedural rules to a similarly situated person.”
The focus of his argument thus shifted from “unbridled discretion” on the part of the officer to the fact that there were three overlapping jurisdictions — city police, county sheriff and state police — each of which could have a different, but consistent within each organization, citing policy. At oral argument, petitioner continued:
«* * * ii is a statutory scheme in relation to the ordinances and the statutes and the overlapping jurisdictions of the courts and of the statutes * * *. It is not so much a matter of undefined discretion as it is a matter of a person in a certain particular set of circumstances at a certain place and time being subject potentially to alternative courses of appeals merely because of which officer that happens to arrive at the scene. * *
The bottom line of his argument is as follows:
“I think that the defendant ought to be afforded the same opportunity to remove [from municipal court] and make his own election initially, to get himself to a court of record.”
For the following reasons, it is my opinion that the defendant has the right he prayed for but that he did not elect to fully pursue that right.
In State v. Freeland, 295 Or 367, 369, 665 P2d 509 (1983), we said that “[a] claim of impermissibly unequal use of authority, like other claims of illegality, must be tested first against the legal source of the authority and second against the state constitution * * *.” The source of authority for the Municipal Judge of Salem comes from Salem’s City Charter. The pertinent part of Section 8 of the City Charter entitled “Recorder, Municipal Court and Judge”, reads as follows:
“The municipal judge shall be the judge of the municipal court of the City of Salem, which is hereby established, and shall have jurisdiction over all violations of city ordinances, and may hold to bail, fine or commit persons found guilty *273thereof, and shall have jurisdiction and power like a justice of the peace within the limits of said city and the laws governing justices of the peace shall apply as far as applicable to all his proceedings.” (Emphasis added.)
Thus, the procedural rules governing justices of the peace would apply to the Salem Municipal Court because the city charter incorporated them into the municipal court system. See Ah Poo v. Stevenson, 83 Or 340, 345, 163 P 822 (1917). (Portland City Charter provision incorporated general laws of the state applicable to Justice Courts and this court looked to the general state laws to ascertain the procedure to be followed.) ORS 221.710 directs the court of the state to take judicial notice of city charters which have been duly certified and filed with the Librarian of the Supreme Court and reads in pertinent part as follows:
“(1) All incorporated cities shall file with the Librarian of the Supreme Court Library a duly certified copy of the charter and all amendments thereto of the city. * * *. When so filed all courts of the state shall take judicial notice thereof and the same may be referred to and pleaded as a public statute of the state. Future amendments shall be filed in like manner and with like effect.” (Emphasis added.)
The Salem City Charter has been properly filed with the librarian of the Supreme Court.
We must therefore look at the power and jurisdiction of the justice court. ORS 51.050(2) provides:
“(2) Any defendant charged with a misdemeanor in a justice court after entering a plea of not guilty, shall be immediately notified of his right to have the matter transferred to the district court for the county where the justice court is located, or if there is no district court in the county, then to the circuit court for the county where the justice court is located. The election shall be made within 10 days after the plea of not guilty is entered and the justice shall immediately transfer the case to the appropriate court.”
The power of the justice court, and therefore the Salem Municipal Court, is limited.
Salem’s charter states that the power and jurisdiction of the city court shall be the same as the justice courts. Therefore, the city judge does not have the power to refuse a *274transfer nor does the judge retain any jurisdiction once transfer is requested. ORS 46.040 gives district courts “concurrent jurisdiction with municipal courts of all violations of the charter and ordinances of any city wholly or in part within their respective counties, committed or triable within their respective counties.” If a defendant charged with a misdemeanor wants to remove the case to district court, the justice court, or in this case the Salem Municipal Court, does not have the power to retain jurisdiction but must allow removal and the district court has jurisdiction to hear the case.
The definitions pertinent to the meaning of misdemeanor are contained in ORS 161.505, 161.515 and 161.545. ORS 161.505 defines offense as follows:
“An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime or a violation or an infraction.” (Emphasis added.)
ORS 161.515 defines crime as:
“(1) A crime is an offense for which a sentence of imprisonment is authorized.
“(2) A crime is either a felony or a misdemeanor.”
ORS 161.545 defines misdemeanor as:
“A crime is a misdemeanor if it is so designated in any statute of this state or if a person convicted thereof may be sentenced to a maximum term of imprisonment of not more than one year.”
When the City of Salem adopted the state’s major traffic offenses, it also adopted the penalties provided for by state statute. See footnote 1, supra. A conviction under Salem Revised Code, section 100.330(2) allows for a jail sentence of up to one year and a fine of up to $2,500. Thus under Oregon Statutes, conviction of a violation of Salem Revised Code, section 100.330(2) would be a conviction of a misdemeanor.
In Henderson v. Smith, 282 Or 109, 557 P2d 504 (1978), this court determined that when a municipal court tries a state offense, the municipal judge is exercising authority as a justice court, citing ORS 484.010(2) and ORS 484.030(2) (renumbered 153.55(2)). We proceeded to interpret ORS 51.050(2) as follows:
*275“We hold that a person charged in a municipal court with a state traffic offense has a right to be notified of his option to remove the case to district court; that the municipal judge had no discretion in this regard; and that mandamus is appropriate to enforce this right.”
In that decision, the court stated that it need not decide the issue based on whether the city charter provisions allowed removal because state statutes 484.010(2) and former ORS 484.030(2) (renumbered 153.55(2)) controlled. In this case, the state statutes are not applicable because defendant was charged with violation of a city ordinance and not a state statute. Therefore, Salem’s City Charter, which incorporates the power and jurisdiction of the justice courts, governs and allows the defendant removal of misdemeanor cases to district court if he so chooses. The remedy when the Municipal Judge refused to allow removal was mandamus. Removal would not be to Polk County District Court but to Marion County District Court.1 The defendant therefore had the right that he prayed for, the right of removal with the corresponding right to appeal on any legal issue to the Court of Appeals. Under either of his theories raised as constitutional arguments, he had the relief he sought. He chose not to attack the validity of the Municipal Court Judge’s refusal to allow removal, but rather waited to attack ORS 221.360 on constitutional grounds. By failing to pursue his rights to remove, defendant in essence has made an election. He has foreclosed Court of Appeals review by his own conduct.
This court has held that constitutional issues should not be reached when there is an adequate statutory basis for making a decision. Webb v. Highway Division, 293 Or 645, 648, 562 P2d 783 (1982); Douglas County v. Briggs, 286 Or 151, 156, 593 P2d 1115 (1979). Petitioner did not raise the constitutional issue until he appealed to the Court of Appeals. Had *276petitioner asserted his rights under the city charter and state statutes, he would have obtained the relief he wanted. It was not an action by the state which precluded Court of Appeals review of defendant’s case but defendant’s own conduct. His failure to pursue removal from municipal court to district court operated as an election and confined his appeal to a trial de novo in the circuit court. Under the facts in this case there is no constitutional issue.
ORS 51.050(2) allows for transfer “to the district court for the county where the justice court is located.” ORS 221.720 defines legal situs of the city and therefore which district court would have jurisdiction.
“(1) For the purpose of the administration of all laws relating to incorporated cities, other than ORS 221.090, every city shall be deemed to have its legal situs in the county in which the seat of the city government is situated.
“(2) Notwithstanding any other provision of law the jurisdiction and application of government of cities shall be coextensive with the exterior boundaries of such cities, regardless of county lines.