dissenting.
I dissent from the majority opinion and, in so doing, wish to reaffirm what was said in our original opinion. When that opinion was handed down, I was firmly convinced that the constitution and applicable statutes meant precisely what we then said they meant, and, in my judgment, they still have the same meaning. *551I find nothing whatever in the present majority opinion that persuades me to believe to the contrary. The constitutional rights of an individual are a priceless heritage; they are fundamental. I like to look upon them as permanent and unchangeable. They should not be one thing today and something entirely different tomorrow.
Our original opinion was not the result of hasty and careless consideration. Its conclusions were deliberately arrived at and stated, but only after careful attention had been given thereto by all members of the court. In fact, in the course of its preparation, it was rewritten several times to accord with valuable suggestions made by, and to incorporate the views and represent the convictions of, each of the members of this court who subscribed to its final draft. Every proposition upon which the present opinion is based was then thoroughly considered and fully answered.
Three of my associates dissented from the original opinion. An examination of that dissenting opinion will disclose that it was based upon the sole contention that the matter before us involved a collateral, rather than a direct, attack upon the orders of the trial court, and, for that reason only, the objections raised by defendant could not be considered or sustained. No question was raised in that dissenting opinion as to the soundness of the conclusions reached by the then majority upon the merits. It is noteworthy, therefore, that in the present prevailing opinion the theory of the former dissenting opinion that we are here confronted with a collateral, instead of a direct, attack, is expressly repudiated; and it is correctly held, as we held in our original opinion, that this appeal does involve a direct attack upon the orders of the trial court.
*552In this case we are establishing law for the future guidance of district attorneys and the courts. Unfortunately, perhaps, we are here dealing with the constitutional and statutory rights of a defendant who has been found guilty by a jury. That finding of guilt is stressed somewhat in the majority opinion. But the fact of guilt, if it be a fact, should never deter us from correctly interpreting the constitution and statutes adopted pursuant thereto. We should not change the law merely to fit the facts of a particular case, no matter how revolting those facts might be. The constitution protects all alike, and the application of constitutional protections to individual rights is never made dependent upon the guilt or innocence of an accused. As we said in State v. Bouse, 199 Or. 676, 264 P2d 800, 805:
“* * * As an appellate court, we are concerned only with questions of law in a case such as this; we do not retry the facts. The guilt or innocence of an accused person is a matter exclusively for jury determination. * * * In 16 CJS 579, Constitutional Law, §199, it is stated:
“ ‘The courts must ever be watchful to protect the personal rights guaranteed by state and federal constitutions. Constitutional rights cannot be made dependent on the favor of the court, but may be asserted as a matter of right.
(c 6 * * m # *
“ ‘Constitutional guaranties pertaining to personal rights are available to all alike and should not be withheld in the slightest degree even from those under suspicion of violating the law.’ ”
It must be remembered that we are here establishing a precedent, and what we may say today to meet the exigencies of this case may rise tomorrow to smite us in the face when a more meritorious factual situation is presented.
*553In my opinion, the present majority of this court is announcing as the law certain rules which do not meet the demands of the constitution and statutes of this state, and which may, in their practical operation, prove dangerous to the established rights of individuals.
Stripped of its extensive argument, the prevailing opinion, as I interpret it, establishes the following rules:
1. That insofar as the time element is concerned, the constitutional right to a speedy trial applies with equal force to both civil and criminal cases, with neither having any right of preference over the other, and that the existence of civil cases upon a trial docket constitutes “good cause” for delaying the trial of a criminal case beyond the time fixed therefor by statute;
2. That the continuance of a criminal trial beyond the term of court in which the statute prescribes it should be tried, is solely a matter of judicial discretion, a discretion subject to being exercised upon the court’s own motion, and that such continuance cannot be reviewed except for an abuse of discretion; and
3. That general and ex parte orders continuing the trial of all cases, civil and criminal, beyond the term in which the statute directs that a criminal case must be tried unless “good cause” exists for not so trying it, import verity as to the existence of such cause, and are valid and binding, even though the accused has not been afforded an opportunity to be heard as to such continuance by himself or counsel.
The rule first above stated constitutes the principal foundation for the prevailing opinion; its ultimate conclusion is dependent entirely thereon. The other rules are more or less subsidiary thereto.
*554The record reveals that defendant was arrested on January 18, 1952, and lodged in jail. She was jointly indicted with Williams on January 24. Her codefendant filed a demurrer to the indictment, which was sustained. In passing, I note that the majority attaches some importance to the delay caused by the filing of this demurrer (some 26 days), but it is obvious that defendant was in no way responsible therefor, nor did such delay, in fact, play any important part in this case.
The case was at issue on February 25, when defendant entered her plea of “not guilty”. At that time, 34 days remained of the January term of court. On March 4, the district attorney requested that a trial date be set for the trial of the two defendants. It appears, therefore, that on March 4, the state was prepared for trial. It is assumed that defendants also were ready for trial, because at no time did either take any steps to delay the trial, except as defendant Kuhnhausen’s motion for a separate trial, filed March 14, might be considered such a step. The statute gave her the right to file such a motion. When the April term of court commenced, the cases were at issue as to both defendant and Williams, as was know by the trial judge. The defendants were to be tried separately. The trial court also knew that both defendants were confined in jail upon a nonbailable offense, and had been so confined continuously since January 18. He knew that under the express provisions of the statute both were entitled to be tried during the April term of court. The state elected to try Williams first, and the court readily found a date for his trial during the month of April. That trial consumed approximately three days and terminated on April 20. At that time 71 days remained of the April *555term, and although defendant languished in jail, she was not brought to trial because, it is claimed, there were civil cases set on the trial docket; no contention has ever been made that there were any criminal cases on the docket for trial.
Vitally important, however, is the fact that on May 1, according to the statement of the trial judge (made at the time of the hearing upon defendant’s motion to dismiss the indictment), the court set its calendar of cases for trial, and all of the cases so set were civil cases! He did not set defendant’s case for trial at that time, nor, indeed, did he do so until early in July, after the April term had expired. It taxes one’s credulity to accept the proposition that no time could reasonably be found for the trial of defendant during the months of May and June, when approximately three days only were required therefor.
In the majority opinion, it is stated:
“* * * However, there is nothing in the statute which forbids a trial court, in the exercise of sound discretion, from finding that an accumulation of civil a/)id criminal cases already set (as appears in this case) constitutes good cause for continuance of a criminal case. The trial courts are certainly entitled to take notice of the condition of their own dockets.”
If the foregoing statement refers to cases where the district attorney applies, or the defendant moves, for a continuance, as provided in the statutes, I am in complete accord therewith. However, from a factual standpoint as applied to the instant case, the above statement is decidedly misleading. In the case at bar, there was no accumlation of “civil and criminal” cases already set for trial; there was an accumulation only of civil cases—cases which were evidently set for trial *556on May 1, long after the ease against defendant was at issue and ready for trial. Other than the Williams trial, no criminal case was tried to a jury during the April term of court (in fact, neither during the January or April terms of court), although during the January and April terms some 33 criminal matters were disposed of upon pleas. It is a matter of common knowledge (and to most members of this court, who have had extensive experience as trial judges, a matter of personal knowledge) that the disposal of criminal matters upon pleas, and without jury trial, does not seriously delay nor interfere with the orderly progress of the trials of civil or criminal cases then being heard; only a slight interruption occurs.
Defendant’s case was finally set for trial for August 18, approximately seven months after she was first indicted. And the only reason assigned for this delay when the matter was before the trial court upon defendant’s motion to dismiss, was the existence of the civil cases upon the trial docket!
The foregoing record squarely presented to us the question whether the existence of civil cases only on the trial docket constituted “good cause” for the delay within the meaning of the statute. We emphatically answered that question in the negative. That was the principal issue then; it is the principal issue now. To uphold the present majority opinion, it is necessary to reverse our former position. I have discovered no sound reason for so doing.
In our original opinion we pointed out that under the constitution guaranteeing to an accused a speedy trial (Art 1, §10, Const of Oregon), and §26-2002, OCLA (OES 134.120), which gives effect to the constitutional provision (and the present majority opin*557ion concedes that much, quoting from decisions which so state), the trial of criminal cases does have some preference over the trial of civil cases. We noted the fact that there is no similar statute in this state applicable to civil actions. I do not intend to repeat all that was said upon that subject in our original opinion, but, for the sake of emphasis, I do wish to quote two statements contained therein. At page 703 of 266 P2d, it is stated:
“A defendant in a criminal action is, by this constitutional provision, guaranteed a speedy trial. [Citing cases decided by this court.]
“From the very earliest times the right of an accused person to a speedy trial has been recognized. In the United' States it is guaranteed by constitutional and statutory provisions. It is a fundamental right, and one not subject to judicial discretion. It extends to all persons accused of crime, to the guilty as well as to the innocent.” (Italics added.)
At page 705 of 266 P2d, we said:
“* * * There is sound reason for this preference. Civil cases usually have to do with problems of money, property, or status, whereas criminal cases involve the personal liberty, freedom, and often, life of the individual. Since Magna Charta the protection of life, liberty, and freedom of the individual has ever been the primary concern of the English-speaking world, the basis for and substance of the Bill of Eights incorporated into the federal and several state constitutions.”
I am sure that my worthy associates who comprise the present majority in this case would not intentionally deny those fundamental truths. Yet that is exactly the effect of what they are doing when they hold that an accumulation of civil cases (not criminal, nor civil *558and criminal) upon the trial docket was “good canse” for continuing the trial of defendant for a period of approximately six months after her case was at issue and ready for trial, and, particularly, for continuing it beyond the term in which the statute specifically directs that it should have been tried.
In our original opinion we did not intend to, nor did we, say that the preference given to the trial of criminal cases, was under all conditions absolute,' nor that this right of preference should be exercised in total disregard of the trial of civil eases. We did intend to say, and, in effect, did say that in the light of the record in this case, this criminal proceeding did have a right of preference as to trial during the April term of court over the list of civil eases on the trial docket, and that “in order to afford the defendant a speedy trial in this case, and to thus preserve and protect her constitutional right, it was the duty of the court, if necessary, to take one or more of the civil cases off the docket”. We also said: “The fact that a number of civil cases has been set for trial is no valid excuse for the failure to set promptly a criminal case that is at issue, if necessary to comply with the mandatory provisions of the statute(Italics added.) To that extent only did we apply the rule of preference. Although much more was said in our original opinion, the foregoing constituted the sole basis for our ultimate conclusion. The present majority opinion necessarily rejects that holding; otherwise, it would have no foundation upon which to build. In taking that position, I think the majority has erred.
Considerable attention is given by the majority to the case of State v. Lee, 110 Or 682, 224 P 627. In our original opinion we noted certain general statements *559contained in State v. Lee: 266 P2d 705. Onr discussion of that case followed immediately after we had made the statements above quoted. We said:
“We are not unmindful of what this court said in State v. Lee, 110 Or 682, 684, 224 P 627. * * *
ÍÍ * * * # #
“We acknowledge the fact that the unequivocal statement that ‘The law does not give criminal cases the “right of way” ’, and the further statement that ‘the right guaranteed by our fundamental law for a “speedy” hearing applies alike to civil and criminal causes’, might well be misunderstood and create some confusion.”
In my opinion the present majority holding clearly demonstrates such misunderstanding and confusion. As abstract propositions, it is true that neither the constitution nor any statute expressly gives the “right of way” to criminal cases; and it also is true that “the right guaranteed by our fundamental law for a ‘speedy’ hearing applies alike to civil and criminal causes”. If all we had to consider was the single constitutional provision that “every man” has the right to have “justice * * * administered openly and without purchase, completely and without delay”, and there was no statute applying to criminal trials such as §26-2002, OCLA (OES 134.120), we might well accept the statements in State v. Lee literally, and so apply them. But we cannot take and apply those statements in a literal sense without doing violence to basic purposes of the Bill of Rights, and, specifically, to the mandatory provisions of the statute.
The interpretation we placed upon the constitutional and statutory rights of the defendant in our original opinion was in keeping with natural right; it *560carried out the established public policy of this state. Section 2-223, OCLA (OKS 174.030) provides:
“Where a statute is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to prevail.”
When all is said and done, it is manifest that in our former opinion we simply weighed the relative rights of the private litigant in a civil case as against those of an accused in a criminal proceeding (one involving a nonbailable offense), and gave preference as to the right of a speedy trial to the accused insofar as that was necessary to comply with the constitution and the statute. The effect of the present majority opinion is to completely reverse that concept of the administration of justice. In lieu of the rule of preference as to the trial of a criminal case as we originally stated it, the majority is, in a real and practical sense, substituting a rule which, under the facts in the instant case, and in its operation, actually gives preference to the trial of civil cases, notwithstanding the plain demand and effect of the statute to the contrary. § 26-2002, OCLA (OES 134.120).
I note the following statement in the majority opinion:
“Turning now to the provisions of the statute [§ 26-2002, OCLA], we all agree that if. a court, without cause, fails to bring an imprisoned defendant to trial at the next term of court after the indictment, he loses all discretion to continue the case. Such is the purport of State v. Clark, supra, cited by the defendant.”
Of course, the statute does not speak of “cause”, but of “good cause”. If “good cause” for the continuance does not exist, the court does not “lose” any *561discretion, because it has no discretion to lose; but it does have a mandatory duty to perform; that is, to dismiss the indictment.
The holding in State v. Clark, 86 Or 464, 470, 168 P 944, referred to above, is particularly apropos to the problems confronting us in the instant case. After quoting Art 1, § 10, Const of Oregon, and what are now §§ 26-2001, OCLA (OES 134.110) (referring to the prompt return of indictments) and 26-2002, OCLA (OES 134.120), this court, speaking through Mr. Justice Moore, said:
_ “In spealdng of the right of a defendant in a criminal action to a prompt hearing, which is guaranteed by organic law and statutory enactment, a text-writer remarks:
“ ‘In theory, at least, the right to a speedy trial may be said to have been recognized at common law in very early times. * * This constitutional provision, adopted .from the old common law, is intended to prevent the oppression of the citizen by holding criminal prosecutions suspended over him for an indefinite time; and to prevent delays in the administration of justice, by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations’: 8 E.C.L. 70. See, also, 12 Cyc. 498.
“The clause of our Constitution hereinbefore quoted, evidently applies to the trial ‘without delay’ of all causes and not particularly to criminal actions. Article I, Section 11, of the Constitution of Oregon, declares, however, that ‘In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed.’ Though a ‘speedy trial’ is not expressly assured by our fundamental law, the command therein that justice shall be administered ‘without delay’ is so nearly synonymous, that the later phrase, when *562construed in connection with, the statutes herein-before quoted, will be treated as guaranteeing the right to a speedy trial. Such an examination by a judicial tribunal is a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays, created by the ministers of justice: 6 Am. & Eng. Enc. Law (2 ed.), 993; Nixon v. State, 2 Smedes & M. (10 Miss.) 497 (41 Am. Dec. 601); State v. Keefe, 17 Wyo. 227 (98 Pac. 122, 17 Ann. Cas. 161, 22 L.R.A. (N.S.) 896).
“The constitutional and legislative guarantee of a speedy trial to a party formally charged with the commission of a crime, necessarily deprives a court of all discretion in delaying, without cause, a hearing, and before such right can legally be denied it must affirmatively appear from an inspection of the record made by the court that a reasonable cause for a continuation of the trial existed: 12 Cyc. 499; In re Begerow, 133 Cal. 349 (165 Pac. 828, 85 Am. St. Rep., 178, 56 L.R.A. 513, 528); State v. Rosenberg, 71 Or. 389 (142 Pac. 624); State v. Hellala, 71 Or. 391 (142 Pac. 624).” (Italics mine.)
It will be noted that the court made a statement quite similar to that later made in State v. Lee, supra, but it immediately qualified it. It also will be observed that Justice Moore did not speak of the court “losing” discretion; he said that “the constitutional and legislative guarantee * * * necessarily deprives a court of all discretion in delaying, without cause, a hearing”. (Italics mine.) In other words, it has no discretion in the matter; a strict rule of constitutional and statutory law governs.
The plain import of the above discussion by the court is to establish the proposition that much greater importance must be and is attached to the right of a speedy trial in a criminal case than to such right in a civil proceeding.
*563Let us briefly consider tbe effect of an established rule that the trial of a criminal case (particularly one involving a nonbailable offense) does not take precedence over the trial of civil cases.
Under this rule a court with hundreds of civil cases at issue and ready for trial (and this situation actually prevails at times in Multnomah county), could set them for trial in order, and try all of them, as set, without regard to the criminal cases later brought to issue, but which are pending. The trial of the criminal cases could thus be continued indefinitely because of the congested trial docket. To justify this continuance of the criminal trials, all that the court need do is to enter a general and ex parte order of continuance at the end of each term, reciting the congested condition of the trial docket—an order made without affording defendant or his counsel in the criminal proceeding an opportunity to be heard. Such an order will import “verity”, and, according to some of our decisions, “absolute verity”; this truly creates an “iron curtain”.
And during all this time, what becomes of the constitutional and statutory rights of an accused person to a speedy trial, and, specifically, of an accused person confined in jail upon a nonbailable offense; an accused who may in truth be innocent, but whether guilty or innocent, one who supposedly was protected by the fundamental law?
It may be said that the supposed situation is not likely to happen; but under the rule being established by the majority opinion, it could happen. The soundness of a rule is never tested by what is likely to occur; it is tested by what might occur. It was to provide against just such a possibility that the legislature adopted the mandatory provisions of § 26-2002, OCLA *564(ORS 134.120). The legislature did not intend to leave the question of the enforcement of an accused’s constitutional right to a speedy trial to rest upon the shifting sands of judicial discretion. I again quote the statute:
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.” (Italics mine.)
It is evident that when a motion to dismiss an indictment for lack of prosecution is filed, the burden, under the statute, is placed upon the state affirmatively to show good cause for the continuance beyond the term; the burden is not upon the defendant to establish the absence of good cause. This court has so held: State v. Bateham, 94 Or 524, 527, 186 P 5. If “good cause” is not, in fact, established, the indictment must be dismissed. The court has no discretion in the matter.
The complete record of the state’s attempt to show good cause for not trying defendant during the April term of court, as the statute directed, is before us in the bill of exceptions. By no process of sound reasoning or rule of justice could we be denied the privilege of examining that record and determining therefrom whether “good cause”, in fact and in law, existed. We cannot be blindfolded by some fine-spun theory of judicial discretion or collateral attack. Most of our prior decisions in which it was stated that the general orders of continuance imported verity, qualified them by giving effect thereto only “in the absence of any showing to the contrary”. Here the record before us *565affirmatively shows the absence of “good canse”, unless, as the majority now seemingly holds, the presence of civil cases exclusively upon the trial docket constituted such a cause.
Section 26-2002, OCLA (OES 134.120), supra, deals only with a maximum time limit for bringing a criminal case to trial; it has nothing whatever to do v/ith a minimum time limit. As to a minimum time limit under the constitutional guaranty of a speedy trial, each case must necessarily be decided upon its own peculiar facts and circumstances, in the light of the applicable law and wholly apart from the statute. In my opinion, it is only in those cases where the maximum time limit under the statute is not involved that the question of an exercise of judicial discretion might arise.
However, in aE cases where there is a strict rule of law applicable, as there is under § 26-2002, OCLA (OES 134.120), the courts are bound to enforce the rule, and discretion is at an end. “Discretion” is defined in State v. Lewis, 113 Or 359, 364, 232 P 1013, as foEows:
“Discretion is the power exercised by courts to determine questions to which no strict rule of law is applicable, but which from their nature and the circumstances of the case are controlled by the personal judgment of the court: Bouvier’s Law Diet. It cannot be exercised where a strict rule of law is applicable as the term ‘discretion’ implies the absence of any such rule. Where there is a clearly defined and well-settled applicable rule of law the courts are bound to enforce the rule and discretion is at an end.” (Italics mine.)
See also State ex rel. Ricco v. Biggs, 198 Or 413, 422, 255 P2d 1055; State ex rel. Bethke v. Bain, 193 Or 688, 702, 240 P2d 958.
*566Much is said by the majority about “discretion” and “abuse of discretion” in connection with the continuance of criminal trials. It is claimed that the finding of “good cause” by the trial judge was a proper exercise of judicial discretion, and his determination cannot be disturbed except for an abuse of such discretion.
All will agree, I am certain, that an exercise of judicial discretion is involved in all cases where an application is made by the district attorney or a motion is filed by an accused, for the postponement of a criminal trial pursuant to the provisions of § 26-905, OCLA (OES 136.070). The action of a trial court upon such an application or motion cannot be disturbed except for an abuse of discretion. That is what is held in State v. Breaw, 45 Or 568, 78 P 896, and State v. O’Neil, 13 Or 183, 9 P 284, quoted from by the majority. In Johnston v. Circuit Court, Mult. Co., 140 Or 100, 12 P2d 1027, and State v. Barrett et al., 121 Or 57, 254 P 198, also quoted from by the majority, the issues were somewhat different from those present in this case.
It is conceded that upon the hearing of a motion to dismiss an indictment for lack of prosecution, if the facts are in dispute, a finding of “good cause” by the trial court, based upon the evidence, involves an exercise of judicial discretion, and such finding cannot be disturbed except for an abuse of discretion. That is what we held in State v. Barrett et al., supra. It also is the effect of our decision in State v. Bateham, supra.
In State v. Barrett et al., the defendant was convicted and he appealed. Prior to his trial he moved for a dismissal of the indictment for lack of prosecu*567tion, basing Ms motion upon what is now § 26-2002, OCLA (ORS 134.120), supra. His motion was supported by affidavits tending to show that the trial had not been postponed on his application or with his consent. Contrary affidavits were filed on behalf of the state, tending to show that he had expressly requested and consented to the postponement. A disputed issue of fact was there presented to the court for decision. The court denied the motion, but in doing so, it necessarily found that defendant did consent to the postponement. In disposing of this matter, Mr. Justice Rand, speaking for the court (page 59 of 121 Or), said:
“* * * In passing upon motions preliminary to trial where questions of fact are involved, the trial court is in a better position to determine the fact than an appellate court, and for that reason, such questions of fact are not open for review upon appeal unless the error is palpable and there has been a clear abuse of discretion.” (Italics mine.)
In State v. Bateham, supra, defendant appealed from a conviction for an offense committed in Multnomah county. He was indicted on July 30, 1918, and tried on December 20 of that year. He entered his plea to the indictment, and the case was at issue in August. The June term of the Multnomah county circuit court extended to the first Monday in September. He was not tried in the next succeeding term (October), nor in the November term. His trial was set for December 3. At that time he moved to dismiss the indictment for lack of prosecution, pursuant to the provisions of what is now § 26-2002, OCLA (ORS 134.120). He supported his motion by affidavit to the effect that the delay of the trial was not due to his application or with his consent. It was also *568made to appear “that only seventy criminal cases were tried in the Multnomah county circuit court during the period mentioned in the affidavit on that subject”. The state opposed the motion by affidavits disclosing in substance that the trial docket of the circuit court was so crowded with cases at issue and for trial that it was impossible to reach the defendant’s case earlier; “that at the end of each term the court had made a general order continuing all unfinished business to the next following term for the want of time to dispose of it; and that owing to the prevalence of influenza and in deference to the requirements of the board of health no jury had been summoned for the November term.” (Italics mine.) On the appeal, this court dealt first with the alleged error in the denial of the motion to dismiss the indictment. In discussing that question, Mr. Justice Burnett, in part, said (page 527 of 94 Or):
“The crucial question is whether the state has brought itself within the exception embodied in the last clause of Section 1701, L.O.L. [§ 26-2002, OCLA], ‘unless good cause to the contrary be shown. ’ If no cause is shown by the state, the defendant is entitled to have the indictment dismissed as of course. * * * We cannot draw a conclusion favorable to the defendant from the fact that only seventy criminal cases were tried in the Multnomah Circuit Court during the period mentioned in the affidavit on that subject. To aid the Fabian policy of the defense, the showing of the state ought to be combated by sworn statements disclosing that there were times during the terms succeeding the return of the indictment when the court could have heard this case. The case made by the state of ‘good cause to the contrary’ appeals largely to the discretion of the trial court and we are not prepared to say from the record before us that the discretion was abused in this instance.” (Italics mine.)
*569Here again the trial court, in passing upon the motion to dismiss, was required to consider and decide upon the facts. It is obvious that the facts set forth in the affidavits filed by the state, if accepted as true by the trial court, established “good cause to the contrary”. In passing upon those facts as a preliminary to the order denying the dismissal, the trial court necessarily exercised a judicial discretion.
But in the instant case, the facts are undisputed! There are no conflicts in the evidence. It follows, therefore, that the only question for determination is whether those undisputed facts constitute “good cause to the contrary” as a matter of law. The finding of the trial court that they did constitute “good cause” for the continuance beyond the statutory limit, is a legal conclusion; it is not a finding of fact based upon disputed testimony. Hence, in the light of the undisputed facts, no occasion arose for an exercise of judicial discretion. With a strict rule of law applicable to the undisputed facts (§26-2002, OCLA, supra), the trial court was bound to apply the rule; it had no discretion to do otherwise. This principle of law is axiomatic in this state. See State ex rel. Bethke v. Bain, supra, and State ex rel. Ricco v. Biggs, supra, and the authorities therein cited. The applicable rule is succinctly stated in State ex rel. Bethke v. Bain, supra, at page 703, as follows:
“However, where the facts are not in dispute, and there exists a strict rule of law that is applicable, no question of ‘judicial discretion’ arises. The trial judge is under the positive duty of correctly applying the applicable rule of law.”
In quoting from the record of proceedings occurring upon the hearing of the motion to dismiss the indictment, the majority has quoted those portions *570only which, it apparently believes are necessary to support its position. It overlooks some very important parts of that record. I deem those portions of the record now to be referred to far more important to a determination of the basic issue in this case than what is quoted by the majority. I now quote from the record:
“ME. JACOBS [Defendant’s attorney]: Now, as to the reason I have set forth in the affidavit, and probably it is my own opinion as to why the case wasn’t brought to trial in the last term of Court, was, we know that Mr. Lindas [then district attorney] was conducting a campaign for attorney general which took a lot of his time and, likewise, he had the right to do that, but the defendant should not be penalized because of that, and we are contending that she has been here without bail, your Honor, since January 18 in the County jail and will be here until this case is tried on August 18, and I think that is an unreasonable time and that the defendant should be discharged from custody.
“ME. BEAD SHAW [Present district attorney] : * * * Mr. Jacobs made a statement in regard to the thirty-three other cases that the District Attorney’s office has taken through the courts. I wish to point out to the Court that none of those cases involved were tried. These two cases [Williams and Kuhnhausen], I think, are the only cases outside of one other case, the Kruger case, that we have requested trial dates for in the past two terms.” (Italics mine.)
The trial court itself called and interrogated a deputy county clerk as a witness. The following testimony was given:
“Q (By the court) Mr. Santos, are you aware since the first of the year, 1952, approximately how long a period of time has elapsed between the trial dates and the actual setting of those cases by me *571down for trial on the average ? In other words, how far have I been setting them in advance?
“A Oh, it has averaged about two or three months.
"THE COURT: I usually set cases on the first of each month and normally that case would have been set for trial the first of June. As I recall, there was one period when I was set so far in advance that I did not set on the first of the month, but I waited for a two months’ period to elapse, and I am not sure, but I believe that was the time, so I don’t believe I set this until the first of July. Mr. Santos, do you have any recollection or record when that letter dated May 19 was delivered by me to you?
"THE WITNESS: No, I don’t.
“THE COURT: Other than the fact that you believe it must have been immediately prior to the notice which was sent out on State Exhibit 3 which is July 3, which would bear me out in my belief that I did not set cases on the first of June because I was set so far in advance, and I waited for two months to elapse. My recollection is, Mr. Jacobs, that I didn’t set cases on the first of June. I set them on the first of May, and I was set so far in advance that I waited until the first of July because, as I recall, I was set for close to three months in advance at that time.” (Italics mine.)
Mr. Jacob’s statement (in his affidavit, and in open court) about the political campaign of the then district attorney being the cause for the failure of trying defendant during the April term was not disputed by the trial judge nor by the present district attorney. It will be a sorry day, indeed, when we recognize the political activity of a prosecuting official as “good cause” or any part of “good cause” for not promptly bringing an imprisoned defendant to trial. Notwith*572standing, that is not the really important thing developed by the foregoing record.
That record conclusively shows, and I wish to emphasize the fact again, that on May 1, when the court states it set cases for trial three months in advance (accounting for the court’s failure to follow its usual practice and set cases on June 1), the defendant’s case had long been at issue and ready for trial; her codefendant had already been tried. Why was it that her case was not set for trial on May 1 when the trials of the civil cases were set? No explanation whatever appears in the record for its not having been set at that time! A demand by the district attorney that it be set was not required by any statute of this state. Section 26-2002, OCLA, supra, itself made the demand, and it was a continuing demand. State v. Chadwick, 150 Or 645, 47 P2d 232. It was the court’? positive duty to see that the mandatory requirements of the statute were met; it was not a matter of judicial discretion. But, in evident disregard of defendant’s constitutional and statutory guaranty of a trial during the April term (two months of which remained on May 1), the trial court, on May 1, set the trials of civil eases exclusively for a period of three months in advance and into the next term of court. Hence, on May 1 the court created its own congested docket of civil cases, which, it is now claimed, constituted “good cause” for the continuance of defendant’s trial. Are the constitutional and statutory rights of an accused to be so easily evaded and denied, and, particularly, the rights of a defendant who had for months been continuously confined in jail? Under no reasonable theory could that be deemed an exercise of judicial discretion. It was simply the failure to perform an absolute duty. In re Von Klein, 67 Or 298, 135 P 870.
*573As before observed, no good reason, nor, in fact, any reason whatever, is assigned for not including defendant’s case in the list of cases set for trial on May 1, unless the political activities of the then district attorney be considered some sort of reason. On May 1 no other criminal case was pending and awaiting trial. Despite this record, it is now calmly announced in the prevailing opinion that the trial court properly exercised a judicial discretion in continuing defendant’s trial beyond the term fixed therefor by positive rule of law. Judicial discretion! Is there no limit to the excusable errors that may be committed in thy name?
The rule we established in our original opinion, but which the majority now rejects, to-wit: that the trials of criminal cases do take precedence over the trials of civil cases to the extent necessary to comply with the constitution and statute, is not exactly a one-way proposition. As was recently stated in Portland by a noted U. S. District Judge of the Eastern District of Michigan: “The public has the right to demand that an accused person shall have a speedy trial * * *. Certainty of prosecution and prompt punishment are more effective deterrents than heavy sentences.” It is manifest that the public has no such direct interest in the speedy trial of civil cases in general. To further the interests of the public in the speedy trial of criminal cases is the principal purpose of the restrictions placed upon the postponement of such trials by the provisions of §26-905, OCLA (OES 136.070).
I deem it unnecessary to further discuss this point. In my opinion, the rule sought to be established in the prevailing opinion, which denies any right of priority for the trials of criminal cases over those of civil cases, is fraught with danger to the rights and liberty *574of individuals; it is a rule which I believe will prove to be inimical to the public’s best interests, a rule that cannot be justified in the light of the plain meaning of the constitution and statutes.
The ex parte order for continuance in this case, and upon which the majority so strongly relies, has for its sole ground of “good cause” therefor the presence on the trial docket of civil cases only, cases set for trial on May 1. The prevailing opinion must stand or fall upon the premise that such is “good cause”, as a matter of law. That is the issue.
I have before me the published comment of a distinguished member of the legislative assembly of this state concerning our original opinion. It is so pertinent to what I have in mind that I adopt it as my own. I quote:
“Such a provision [for speedy trial] was included in the original bill of rights as amendment VI to the United States Constitution and was founded on historical background. In totalitarian countries, where the citizen has no such protection, accused persons have been known to languish days, months and years without being brought to trial. Once the principle of speedy trial in criminal cases is qualified or modified even indirectly, the protection has lost its meaning, and if a person can be held three months without trial, his case could be postponed six months, or longer, depending upon the whim or other activities of local officials. The principle must stand or fall as such, and its application cannot depend merely upon the degree of the violation.” (Italics mine.)
The prevailing opinion devotes much space to a discussion of the relationship between the constitutional provision and § 26-2002, OCLA. It seeks to establish the proposition that we were in error in our original opinion when we said that the statute con*575stituted the legislative construction and definition of the constitutional provision, and that, having been adopted contemporaneously with the adoption of the constitution, it must be read into and considered a part of the constitutional guaranty. That, in effect is substantially what was said in State v. Clark, supra. I abstain from discussing that proposition in this opinion, because, whether right or wrong, it has nothing to do with the basic issue in this case. However, by not discussing it, I do not wish to be understood as subscribing to the views now announced.
I have frequently mentioned the ex parte orders of the trial court continuing the trials of cases. By so doing, I have not intended to concede their validity for any purpose connected with this case. In my opinion, the ex parte order entered by the trial court at the end of the April term, under which it is contended defendant’s trial was properly continued, and which order was made without first affording the accused or her counsel an opportunity to be present or heard, directly affected a substantial right of the accused and constituted a denial of her constitutional right to be heard by herself and counsel (Art 1, § 11, Const, of Oregon), and is, as to her, absolutely void and of no effect. I refrain from giving my detailed reasons and authorities for this conclusion simply because I am advised that one of my associates proposes to discuss that phase of the problem, and he and I are in complete accord upon the question.
I adhere to our former opinion.
Rossman and Perry, JJ., concur in this opinion.