Page:Oregon Historical Quarterly volume 11.djvu/113

 On Power to Increase Supreme Court 107 that all circuit judges since the separation of the court into distinct classes under section 10, are also supreme judges, is based upon a misconception, as it seems to me, of the several sections of article VII. on this subject, and upon the peculiar language of section 21, as it now stands. But a study of these various sections and of section 20 (now section 21), as it was from time to time amended, and amendments refused by the convention, makes it clear that, since the act of the legislative assembly passed pursuant to section 10, providing "For the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the Supreme Court who shall not perform circuit duty; and the other class shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as the supreme judges," circuit judges are no longer entitled to sit as supreme justices. They never, in fact, did sit as supreme justices, but the supreme justices by virtue of their office, sat as circuit judges. Originally, by section 2, the Supreme Court as created by the constitution, consisted of four justices chosen in districts by the electors of each separate district, and the number of justices could not be increased beyond five until the white population amounted to 100,000, and should never exceed seven. It thus appears that while the supreme justices were performing circuit court duty they were ex-officio circuit judges of the respective dis- tricts or circuits, and circuit judges as such were not author- ized to be elected, and the office was not designated or created as a distinct office until the creation of the two classes under section 10, supra. At that time these circuit judges were required to take the same oath as the supreme justices, and section 20 (now section 21) did not need any of the amend- ments offered or adopted or rejected making the oath therein provided applicable to circuit judges. But when section 20 (now section 21) was finally adopted, section 10 had not been adopted either by the committee on judicial department or the convention. It had been drafted by Mr. Olney and ordered