Under the 1857 Constitution, the Supreme Court consisted of four justices, who also served individually as the judges of the four circuit courts.1 (Although the Supreme Court had four members, only three would hear each case; one justice would be disqualified because he had heard the case as circuit court judge.2 ) Each Supreme Court justice/circuit court judge was elected by the individual district in which he served.3 As originally constituted, the first district consisted of Jackson, Josephine, and Douglas Counties; the second district, of Umpqua, Coos, Curry, Lane, and Benton Counties; the third district, of Linn, Marion, Polk, Yamhill, and Washington Counties; and the fourth district, of Clackamas, Multnomah, Wasco, Columbia, Clatsop, and Tillamook Counties.4
The Framers of the Oregon Constitution had an eye to the future, however. First, the Constitution authorized the Legislature to expand the number of judicial districts (and the number of Supreme Court justices) to as many as five; once certain population requirements were met, the Constitution permitted the Legislature to expand the number of districts (and justices) to as many as seven.5 Second, the Constitution authorized the 5 Legislature to have Supreme Court justices elected separately from circuit court judges, once the state's population had reached a certain figure.6
In 1862, the Legislature added a fifth justice to the Supreme Court, and a fifth judicial district to the state.7 The new fifth district consisted of Wasco, Umatilla, and Baker Counties.8 Joseph Gardner Wilson was appointed as the fifth justice.9
The Legislature enacted legislation splitting Supreme Court justices and circuit courts judges into different classes in 1878.10 In doing so, the Legislature reduced the number of Supreme Court justices from five to three -- possibly out of concern that the Constitution mandated a three-justice Supreme Court after the split.11 In splitting the 11 classes, the Legislature also ended the election of Supreme Court justices by district.12 The 1878 act created what was functionally a new Supreme Court, as the Court itself would note just a few years later:
"Although invested with the same supreme judicial power, it is not the same supreme court which existed prior to the act of the legislature. It differs in its composition, in the number of its offices and officers, their election and duties. The fact is that the offices of the former supreme court, like the officers of that court, went out in the re-organization which the act effected."13
The split between the Supreme Court and the circuit courts became effective with the elections in the summer of 1880.14Nevertheless, the December 1877 term was the last in which the court consisted of five justices -- P.P. Prim, R.P. Boise, E.D. Shattuck, L.L. McArthur, and J.F. Watson.15 The three justices who ended the term of the old Supreme Court were James K. Kelly, R.P. Boise, and P.P. Prim.16 The three justices of the new Supreme Court elected in 1880 were William P. Lord, E.B. Watson, and John B. Waldo.17
FN1. Or Const, Art VII (Original), §§ 2, 8; see Cline & Newsome v. Greenwood & Smith, 10 Or 230, 1 232 (1882) (so noting). The first four justices were Aaron E. Wait, Chief Justice, and Reuben P. Boise, Riley E. Stratton, and Paine P. Prim, Associate Justices. See 1 Or 241 (1853-62) (listing justices for first term of Oregon Supreme Court after statehood). Matthew P. Deady had been elected to the Court in 1859, but he declined to qualify for the position, instead becoming United States District Judge for the District of Oregon. Sidney Teiser, A Pioneer Judge of Oregon: Matthew P. Deady, 44 Or Hist Q 61, 80-81 (1943).
FN2. Or Const, Art VII (Original), § 6; see State v. Cochran, 55 Or 157, 185, 104 P 419, 105 P 884 (1909) ("Section 2 provided the minimum number as four [justices], of which, under Section 6, on account of one of the number having tried the case appealed, but three justices could sit on an appeal").
FN7. "An act to create a fifth judicial district, and increase the number of justices of the supreme court" dated October 11, 1862, General Laws of Oregon 89-90 (1862) (fifth district consisted of Wasco County, "together with all the counties and territory east of the summit of the Cascade mountains").
FN8. See "An act to provide the times for holding circuit and county courts" dated October 17, 1862, General Laws of Oregon 68-70 (1862) (setting terms of court for those counties in the fifth judicial district).
FN11. See id. at §§ 2, 10 (specifically providing for three justices). The constitutional provision was Article VII (Original), section 10. In authorizing the Legislature to split Supreme Court justices and circuit court judges into different classes, that provision specifically stated that "one of which classes shall consist of three justices of the Supreme Court." Please see the discussion of the 1909 expansion of the Supreme Court, discussed below, for more information.
FN12. See "An act to provide for the election of Supreme and Circuit Judges i[n] distinct classes" dated 12 October 17, 1878, § 2, Laws of Oregon 31-33 (1878) (providing for election of Supreme Court justices; no reference is made to district); Cline & Newsome, 10 Or at 234 (adoption of legislation necessarily ended "[t]he former system by which supreme judges were elected by districts").
FN14. See "An act to provide for the election of Supreme and Circuit Judges i[n] distinct classes" dated 14 October 17, 1878, § 2, Laws of Oregon 31-33 (1878) (providing that elections would take place in 1880).
FN15. Justices of the Supreme Court, 6 Or at (iii) (1876-77) (through the December term, 1877). By the January term of 1879 -- the next term of the court -- there were only three justices: James K. Kelly, R.P. Boise, and P.P. Prim. Justices of the Supreme Court, 7 Or at (v) (1879).