The opinion
ROSSMAN, J.,
concurring.
I concur in the opinion written by Mr. Justice Lusk.
The original majority opinion stated that § 13-715, OCLA, is a part of our civil code and that it does not empower courts to formulate rules governing the trial of criminal charges. The specially concurring opinion of the Chief Justice cited State v. Chase, 106 Or 263 , 211 P 920 , as a precedent, showing that the power conferred by § 13-715 can be employed in criminal cases.
The power given to the courts by § 13-715 was not exercised in the Chase case in the making of a rule applicable to criminal cases only, but in its routine operation for bringing to the court needed veniremen. In that case, the defendant had been indicted for having had unlawful sexual intercourse with a child only nine years of age, and a statute required that in such instances at least one half of the trial jury must consist of women. By the time that the names of six men and five women had been drawn from the jury box, the latter contained the names of no more women. The presiding judge, at that juncture, instructed the sheriff to *76 draw from the regular jury list the names of ten women and order them to appear the next day. In sustaining the validity of the trial judge’s order in so doing, this court’s opinion expressed the belief that the statute, which directed that the trial jury should include at least six women, authorized the challenged order. It added that if the statute did not go that far, the section of our laws which is now § 13-715, OCLA, conferred the necessary power. It will be noticed that the power which was exercised by the trial judge in that instance was not concerned with criminal cases only, nor with any precept of criminal law; its concern was the veniremen. Although it was possibly unnecessary in that case to cite § 13-715, OCLA, it was not improper.
Apart from § 13-715, OCLA, I am satisfied that a court, which possesses jurisdiction in either criminal or civil matters, has inherent power to prescribe the rules necessary to enable it to perform its function of administering justice; provided, of course, that the rules which it makes are not at variance with legislation. Such has been the point of view of this court since its beginning. In Carney v. Barrett, 4 Or 171 , the court said:
* * Under our system all Courts have certain inherent powers to be exercised for the purpose of methodically disposing of all cases brought before them. They can establish such rules in relation to the details of business as shall best serve this purpose, having proper regard for the rights of parties litigant as guaranteed and recognized by the Constitution and the laws. This principle is recognized in 3 Binney, 417, and 2 Sergeant & Rawle, 253, the decisions in which cases are approvingly referred to in 2 Reed’s Blackstone, 439-40. We cannot discover that it conflicts with any provision of our Code.”
*77 In Coyote G. & S. M. Co. v. Ruble, 9 Or 121 , it is said:
“It may, then, he safely affirmed, in the absence of any legislative authority, that the supreme court has the inherent right to prescribe rules for the orderly conduct of its business not contrary to law. But if this were questionable, the authority of£ every court of justice to provide for the orderly conduct of proceedings before it,’ is expressly conferred by the statute. (Civil Code, sec. 884, sub. 3.)
“The rule under consideration is one of practice, is not unreasonable, nor repugnant to law, and is within the legitimate and unquestioned power of the court to establish. Like all other rules, it has been entered upon the records of this court and published in the Oregon Reports, that every one may read and know them.
“The question then occurs, what effect is to be given to this rule? Does it have the force of law, and is it equally binding on the courts and litigants?
* # #
“It is not material whether the power of the court, to make rules for the orderly conduct of its business, is derived from the statute, or from the inherent power which the courts possess for that purpose, as in either case, the rule, to be valid, must not be in conflict with any constitutional provision or legislative enactment. But when deliberately made and promulgated, and not repugnant to law, the decisions are uniform- that such rules have the force and effect of law, and are equally binding upon the court and litigants. The court may modify, change, or rescind any of its rules, or it may reserve the exercise of discretion for particular cases,- but while they are in force, and without any such qualification reserved, they must be applied to all cases coming within their provisions. As none of these petitions were filed within the time prescribed by the rule, it follows that the rehearing cannot be granted.”
*78 Since those early pronouncements, this court has many times spoken in similar vein. State v. Roy, 41 NM 397 , 60 P2d 646 , 110 ALR. 1, is an example of the decisions which hold that when a court has the power to prescribe by rule regulations governing trials, its rules are valid, even in criminal cases. The reprint of the decision in ALP is succeeded, at page 22, with an extensive annotation.
In this state, where no provision has been adopted conferring upon the courts general rule-making power, the regulations which they write, as in the- Chase case, generally go no further than to fill in the interstices-found in legislation governing judicial procedure.
In concurring in the majority opinion, and in the present opinion which denies a rehearing, I subscribe to no view which weakens the authority of State v. Chase, supra, or construes its holding as lessening a trial judge’s inherent powers to prescribe all needed rules and regulations.