dissenting.
The majority holds in effect that ORS 132.110(3) and ORS 132.360 are unconstitutional, because they provide that a grand jury consisting of five persons or more may return an indictment. It reasons that Article VII (amended), section 5(2), requires a deliberative process by all seven grand jurors “that permits expression and consideration of minority viewpoints, thereby insulating an accused from biased or overzealous prosecution.” 116 Or App at 283. Therefore, according to the majority, it follows that ORS 132.360 and ORS 132.110(3) violate section 5(2), because the use of five grand jurors does not promote a balanced view that the deliberative process requires.
To reach its result, the majority makes a policy judgment reserved for the framers of the Constitution and writes a requirement into section 5(2) that is not there. That section provides that a grand jury shall “consist” of seven jurors, “five of whom must concur.” Those requirements prescribe the number of jurors to make up a grand jury and the number that must concur in deciding whether to render a “true” or “not true” bill. Section 5(2) is silent as to the number of jurors that constitute a quorum in order to return a bill. Although an argument can be made on the basis of the *285discussion at the Constitutional Convention1 that the framers of the constitution intended to require a seven juror quorum, the language that they adopted does not impose that requirement.2 The constitutional authority of this court is limited to the interpretation and enforcement of the law as it is written. Wilder v. Haworth, 187 Or 688, 213 P2d 797 (1950), overruled on other grounds Frohs v. Greene, 253 Or 1, 4, 452 P2d 564 (1969). The majority’s result is not an interpretation of an existing provision but adds language that is not there, thereby usurping the provisions of the constitution. Moreover, the majority’s result will have the effect of making void countless convictions. The majority’s holding is not only unauthorized but ill-conceived in the absence of *286compelling evidence that the framers of the constitution intended its result.
In the trial court, petitioner argued that he was entitled to post-conviction relief, because the district attorney excused a grand juror rather than making application to the court under ORS 132.110(3) to have the juror excused. The trial court held that, because ORS 132.110(3) was never invoked by the district attorney, the indictment was void. The state argues that the non-compliance with ORS 132.110(3) was of non-constitutional proportions and therefore, post-conviction relief is not available. Because five grand jurors “concurred” in the indictment as provided by ORS 132.360, it is not void. See State v. Witt, 33 Or 594, 55 P 1053 (1899). Although a statutory violation occurred under ORS 132.110(3), the state is correct when it says that the violation is not cognizable under ORS 138.530.3 The trial court erred when it held to the contrary.
For these reasons, I dissent.
Joseph, C. J., Richardson and Rossman, JJ., join in this dissent.The legislative commentary to the Proposed Oregon Criminal Procedure Code, 39-40, notes:
“ORS 132.010, accordingly, states that a grand jury is a body of seven persons. The statute, like the Constitution, is silent, however, as to the number of jurors that constitute a quorum to conduct the business of the grand jury. ORS 132.100 provides for the swearing of witnesses in the absence of the foreman. Therefore, by inference from this provision, a number of jurors less than seven, but made up of five or six, could hear testimony and indict, so long as five voted to indict.
“However, the opposite inference occurs in ORS 132.110. This section provides various methods of obtaining additional jurors when a juror is sick, related to the accused or is otherwise unable to continue in the discharge of his duties. Here, there is apparently adequate provision for maintaining a grand jury at the full number of seven.
“Another argument for a full jury with a quorum of seven is the small number of grand jurors. Many states require 23 members and some state 16 members. Much discussion occurred at the Constitutional Convention in 1857 concerning the number of grand jurors with proposals varying from five to 12. Seven was a compromise that was finally agreed upon by the Convention and later approved by the people. One can argue that Oregon opted for a small grand jury and therefore providing for a quorum of less than the full number was unnecessary. The states with larger grand juries needed quorum figure because of the large size of the grand jury.”
The language used in the original constitutional provision provided:
“The Legislative Assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors; and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find indictment: But the Legislative Assembly may modify or abolish grand juries.” Oregon Constitution, Article VII, § 18 (1857). (Emphasis supplied.)
That provision did not impose a quorum requirement. In addition, the final sentence indicates that the framers did not hold the grand jury requirements to be of critical constitutional importance. That is borne out by the extensive debate as to whether the grand jury system should exist in Oregon at all. Carey, The Oregon Constitution, 212-14 (1926).
ORS 138.530(1) provides:
“Post-conviction relief pursuant to ORS 138.510 to 128.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resultingin petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.
“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
“(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.”