Page:Oregon Historical Quarterly volume 11.djvu/108

102 Opinion of Wm. D. Fenton an opinion reversing the judgment of conviction, holding the ordinance valid, and that the town of St. Johns, under its charter, had authority to pass the same, notwithstanding the local option law under which Cochran was convicted. Mr. Justices Moore and Eakin, who are duly elected justices of the Supreme Court, dissented, holding for affirmance of the judgment. The motion is intended to present the contention that inasmuch as Justices Moore, Eakin and McBride are the duly elected and qualified justices of the Supreme Court, three in number, and Justices Slater and King are appointees under Chapter 50 aforesaid, that the opinion of Justices Moore and Eakin express the judgment of the court, instead of being a dissenting opinion, it in fact and in law controls, and the opinion written by Mr. Justice: King, concurred in by Mr. Justices McBride and Slater, is the opinion of a minority of the court, thereby intending to present the claim and conten- tion that the act (Chapter 50, supra) under which Justices Slater and King were appointed is unconstitutional and void, claiming that under Section 10, Article VII. of the constitu- tion, the number of justices constituting the court cannot be constitutionally increased beyond three. Carefully prepared briefs have been submitted by Attorney General A. M. Craw- ford, District Attorney George J. Cameron, Deputy District Attorney J. H. Page and A. King Wilson, upholding this contention; and an able brief submitted by Judge Thomas O'Day, attorney for Cochran, concurred in by Martin L. Pipes as amicus curiae, strongly urges the constitutionality of the act in question. A like brief sustaining the act has been signed and submitted by many prominent attorneys who appear as amici curiae. The question has attracted great attention, and is of great interest to the public. It is more important that the constitution should be correctly interpreted than that the motion under consideration should be allowed or denied. Naturally the two justices whose right to sit as members of the court has been questioned find themselves greatly embar- rassed, and will doubtless decline to pass upon or consider