In the very early years of the 20th Century, the three justices of the Supreme Court had become overloaded with work.1 So the 1907 Legislature stepped in, authorizing the appointment of two Commissioners to the Supreme Court to "assist [the Court] in the performance of its duties and in the disposition of numerous causes now pending and which may hereafter be pending in said court."2 The two commissioners, William R. King and Woodson T. Slater,3 were not limited to ruling on motions; my research shows 103 published opinions authored by the two commissioners, beginning with Pickett's Will, 49 Or 127, 89 P 377 (1907) (Slater, Commissioner), and ending with Elwert v. Marley, 53 Or 591, 99 P 887, 101 P 671 (1909) (Slater, Commissioner).
Even the two commissioners were not enough to solve the congested docket, however. The terms of the commissioners would expire in early 1909, but "additional cases are being filed...faster than three Justices, unaided, can speedily hear and determine them."4 So in 1909, just over 30 years after the Legislature had reduced the Supreme Court from five to three, the Legislature passed legislation again authorizing five justices on the Supreme Court.5 Commissioners King and Slater were appointed to 5 the two new justiceships.6
It was not clear, however, whether a five-justice Supreme Court was constitutional. The provision of the Constitution that allowed Supreme Court justices to be elected separately from circuit court judges, Article VII (Original), section 10, stated that "one of which classes shall consist of three justices of the Supreme Court." (Emphasis added.) The issue was presented to the Supreme Court on reconsideration in State v. Cochran, 55 Or 157, 104 P 419, 105 P 884 (1909). The Supreme Court, dividing 3-2, had reversed a defendant's conviction for selling liquor.7 The state sought reconsideration, arguing that the 1909 act was unconstitutional, and so the votes of the two new justices were invalid.8 Because both of the new justices had been part of the three-justice majority, the state's argument would have turned its 3-2 loss into a 2-1 win.9 The Court rejected that argument, however, concluding that the Constitution established three as the minimum number of Supreme Court justices, while permitting the Legislature to expand the court to at least seven justices.10
FN1. General Laws of Oregon, ch 50, § 4 (1909); General Laws of Oregon, ch 88, § 2 (1907) (both noting congestion in Court's docket).
FN2. General Laws of Oregon, ch 88, § 1 (1907).
FN3. See Officers of the Supreme Court, 49 Or [iii] (1907) (identifying commissioners).
FN4. General Laws of Oregon, ch 50, § 4 (1909).
FN5. Id. § 1.
FN6. See Officers of the Supreme Court, 53 Or ii (1908-09) (so noting).
FN7. State v. Cochran, 55 Or 157, 160-68, 104 P 419, 105 P 84 (1909).
FN8. Id. at 172-73.
FN10. Id. at 194, 197-98. The Court did not decide whether the Legislature could expand the court beyond seven members. Id. at 198.