« PreviousContinue »
G. G. Gammans, for appellant. Dell Stu knowledge, but rather an expression of an art, for respondent.
opinion from information equally accessible
to both parties, and upon which plaintiff, PER CURIAM. This is a suit too restrain under the circumstances, had no right to an action at law, and compel the reformation rely. He was as equally able to form his of the note upon which the action is found own opinion, and to come to a correct judged. Briefly the facts are that in September, ment as to the amount unpaid on the bond,
90, the plaintiff purchased of his brother, as the defendant, and cannot justly claim to
TRANSP, & LOCKS CO.
Under Hill's Code, $ 102, providing that suit for $600. At the time of the sale the the court may relieve a party from a judg. bond was in the possession of the defendant, ment taken against him through his mistake, and he represented or stated to the plaintiff
only a plain abuse of discretion in refusing te
lief will be reviewed. that there was $600, "may be a little more or a little less," due thereon, be supposing
Appeal from circuit court, Multnomah counand believing such to be the case, and with
ty; E. D. Shattuck, Judge. out having or pretending to have any ac
Petition of Amos L. Lovejoy and others for tual knowledge on the subject. In fact, it is
relief from a judgment rendered against admitted that he did not pretend to have
them in an action by them against the made any definite calculation as to the
Willamette Transportation & Locks Comamount unpaid, nor was he content to do
pany. · Petition denied, and petitioners apSoon after the pu use the pond was
peal. Affirmed. assigned to plaintiff, and at the time of exe J. W. Whalley and Dell Stuart, for appelcuting the note, and for some three or four lants. J. C. Moreland, for respondent. weeks prior thereto, was in his possession; but without making any attempt to ascer PER CURIAM. This is an appeal from an tain the actual amount unpaid thereon, al order of the circuit court denying the petithough the data for so doing appeared on the tion of plaintiffs for relief from an original face of the bond, he executed and delivered judgment of the court against them. The the note in suit for $600. More than a year petition is brought under section 102, Hill's afterwards, and after he had paid 15 or 16 Code, which provides that the court may installments of the purchase price, and after "relieve a party from a judgment, order or he had been sued on the note, he discovered other pro eding taken against him through for the first time, as he claims, that, instead his mistake, inadvertence, surprise or exof $600 being unpaid on the bond, there was cusable neglect." The record shows that the in fact $660 unpaid on the principal, and plaintiffs had commenced an action to recover $154 accumulated interest; whereupon he certain real property described therein, and commenced this suit to have the note re that the court had found against them, and formed by reducing the amount thereof to adjudged the defendant entitled to the prop$341.40, instead of $600, the amount for erty as the owner thereof. The petition is which it was originally given, claiming that based on the fact that the judgment was obhe was induced to execute the note by the tained against the plaintiffs by mistake as misrepresentation of the defendant as to the to the locus in quo, in this: that they were amount unpaid on the bond.
claiming in such action an island in the While we concur with counsel for plaintiff Willamette river other and different from the that in equity, whenever a positive repre island claimed by the defendant. There are sentation of facts is made which are or may numerous affidavits filed in support of the be assumed to be within the knowledge of petition and against it. It is admitted that the party making it, the receiving party is, a petition for relief from a judgment under in general, entitled to rely and act upon it, section 102, supra, is addressed to the disand is not bound to verify the truth of the cretion of the court, and, conceding, without representation by an independent investiga- deciding, that an order granting or denying tion, yet we see no room for the application such a petition is appealable, the question is, of the doctrine in this case. The amount was the order of the court denying such petunpaid on the bond was a simple matter of tion an abuse of its discretion? The judge calculation, which it is admitted defendant who denied the petition tried the cause. was not competent to make, nor did he pre He is able and experienced, and familiar teod to have any definite information thereon; with the place aud its surroundings where and his representation cannot be considered the alleged sland or land in dispute lies, as a positive declaration of a fact within his While the motion was pending and under
consideration, la order to better quality him. amended by mere reference to Its title, but self to understand and apply the facts al the act revised or section amended, shall be leged in the affidavits pro and con, he visited set forth and published at full length.” The the place where the land in dispute lies, and general act-passed at the last session of the made a careful investigation of the facts legislature-is entitled "An act to secure a as to its location, and, after mature considera
convenient mode of making assesstion, refused to allow the relief asked. In ments and of collecting and paying taxes," view of these facts, the nisi prius judge was etc.,' and consists of nine distinct sections, well qualified to pass an intelligent judg. which, in substance, provide as follows: Secment upon the matter submitted, and it is tion 1 provides for four additional columns to not enough that we might reach a different the assessment and tax rolls, to be headed conclusion to justify an interference with thic “Cities," "School Districts," "Amt. City exercise of his discretion. There must be Tax," and "Amt. School District Tax," and not merely error of judgment, but sich an for inserting the name of the city or school exercise of it as amounts to a plain abuse of. district in which each item of property is discretion. Our examination of the record assessable. Section 2 provides for listing the has not satisfied us that the order should cities and school districts in the several be disturbed, and it is therefore affirmed.
counties in alphabetical and numerical order
erty in each city and district set opposite the
name or number thereof. Section 3 provides
for taxing property in cities and school dis(Supreme Court of Oregon. Nov. 8, 1893.)
tricts according to its valuation by the counCONSTITUTIONAL LAW-STATUTES--AMENDMENT BY REFERENCE TO TITLE-REPEAL BY IMPLICATION.
ty assessors, and for furnishing the proper 1. Const. art. 4, § 22, which provides that
officers of such cities and districts with state"no act shall ever be revised or section amend ments of the aggregate valuation of the ased by mere reference to its title, but the act sessable property in their respective cities revised or section amended, shall be set forth
and districts. Section 4 provides for annual and published at full length," does not inhibit the enactment of a general law which is com
notice to the clerks of the several county plete and perfect in itself, and not amendatory courts of the rate per cent of the tax levy or revisory in its character, though such law in each city and school district in the reby implication amends other statutes on the
spective counties. Section 5 provides for same subject. State v. Wright, 12 Pac. Rep. 708, 14 Or. 370, overruled.
computing the tax upon the property of each 2. Laws 1893, p. 116, “An act to secure a individual by the several clerks of the counmore convenient mode of making assessments
ty courts, and extending the same so as to and of collecting and paying taxes,” etc., which by section 9 eliminates from the special
show the aggregate tax of each individual act incorporating the city of Astoria the pro upon his property in the respective cities and visions conferring on such city power to as districts. Sections 6 and 7 provide for the sess, levy, and collect all taxes, is not invalid
collection of such taxes, and the payment because it amends such special act without setting forth in full the section as amended.
thereof to the respective cities and school
districts for which they were collected. SecAppeal from circuit court, Clatsop county;
tion 9 provides “that all laws providing for T. A. McBride, Judge.
assessors in, or assessments of property by Action by M. S. Warren against M. G. Cros
any school district, incorporated town or city by, mayor of the city of Astoria, Or., and
and all laws in conflict herewith, be and the others, to enjoin such city from incurring
same are hereby repealed." By this act the further expense in assessing and collecting
power to assess and collect taxes, conferred the city taxes for the year 1893. From a
on the different cities of the state by their judgment in favor of plaintiff, defendants ap
charters, and also upon the different school peal. Affirmed.
districts, as well as the duties connected J. F. Hamilton, for appellants. George No therewith, is transferred to the county offiland, for respondent
cers designated therein. Section 38 of the
special act incorporating the city of Astoria LORD, O. J. This is a suit brought by a provides that its common council shall hare taxpayer of the city of Astoria to enjoin power "to assess, levy and collect taxes for the city from incurring any further expense
general municipal purposes, upon all propin assessing and collecting a city tax for the erty, real and personal, which is taxable by year 1893. The question sought to be raised law for state and county purposes.” It will is the right of the city of Astoria to assess
be observed that the effect of the general and collect a city tax for said year, in dis act is to eliminate from section 38 of the regard of the general law of the state. The special act the power conferred on the comcontention is that the general act is amenda mon council to assess and collect taxes for tory of section 38 of the special act incorpo- | municipal purposes, and to transfer it and rating the city of Astoria, in violation of sec the duties connected therewith to the officers tion 22, art. 4, of the constitution, which provides that "no act shall ever be revised or * Laws 1893, p. 110.
of the county 80 designated. This, it is islature, not amendatory in character, but claimed, is such a change or alteration of original in form, and complete in itselt, ex. section 38 as, in effect, amends it without hibiting on its face what the law is to be, conforming to the requirements of section 22, its purpose and scope, is valid, notwithstandart. 4, of the constitution; and hence that ing it may, in effect, change or modify some such a change or alteration could not be other law upon the same subject. legally made without setting forth and pub As the general act under consideration de lishing at full length such section as changed prives the cities and school districts of the or modified. The question, therefore, to be state of the power to assess and collect determined is whether the general act comes taxes, which had been theretofore conferred within the scope of the constitutional prori. upon them by special and general laws, it sion invoked. The language of that provision is claimed that this is such a change or alis both prohibitory and mandatory. By its teration of those laws in that particular as terms it inhibits the revision or amendment is amendatory, and that, unless the general of an act by mere reference to its title, and law sets forth and republishes at length the requires that the act revised or section part or section thereof as amended, it direct. amended shall be inserted at length. It does ly falls within the constitutional inhibition, not purport to limit or restrict the power and is void. Hence, as the effect of the act of the legislature in the enactment of laws. is to take from the city of Astoria the power It relates only to the mode or form in which to assess and collect taxes, conferred upon it the legislative power shall be exercised. Its by section 38, supra, it is amendatory of that! prohibition is against legislation effected by section, and, for like reason, unconstitutional. modes not in conformity with its require This construction of the constitutional pro ments. The evil it sought to remedy was the vision in question is based on the assumpmode in wbich the legislative power was tion that any act of the legislature which sometimes exercised in the enactment of re in effect alters or changes an existing law, visory or amendatory laws. This evil, as is or part thereof, is an amendment of it, and well known, was the practice of amending void, unless it inserts the law at length, or or revising laws by additions or other altera such part as changed or amended. In suptions, which, without the presence of the port of this construction we are cited to the original law, were usually unintelligible. case of State v. Wright, 14 Or. 370, 12 Pac. Acts were passed, amending an existing stat Rep. 708, in which Strahan, J., said: "In leg. ute by substituting one phrase for another, islation an amendment means an alteration or by inserting a sentence, or by repealing a in the draft of a bill proposed, or in a law sentence, or a part of a sentence, in some already passed. Rap. & L. Law Dict. tit. portion or section thereof, which, as they 'Amendment.' So that, if this act alters the stood, often conveyed no meaning, and, with legal effect of the charter of the city of As out examination and comparison with the | toria in a particular already covered and prooriginal statute, failed to give notice of the vided for by the charter, then it is to be changes effected. By such means an oppor
taken as an amendment of the charter. tunity was afforded for incautious and fraud This is not a case where new and additional ulent legislation, and endless confusion was powers are added by way of supplement, but introduced into the law. Legislators were the change or alteration of an existing often deceived, and the public imposed upon power; and I think it is too plain for arguby such modes of legislation. To prevent ment that it is an amendatory statute." In these consequences, and to secure a fair and that case the act under consideration providintelligent exercise of the lawmaking power, ed, in substance, that "every person obtainwas the object of the constitutional provision ing a license to sell spirituous or vinous liqin question. This object it accomplished by uors shall pay into the treasury of the counimposing a limitation, not on the power of ty, city or town granting such license the the legislature to make laws, but upon the sum of three hundred dollars per annum, mode in which that power should be exer and in the same proportion for a less period, cised in the enactment of amendatory or re or two hundred dollars per annum, and in visory laws. If the act is in itself complete the same proportion for a less period, for a and perfect, and is not amendatory or re license to sell malt liquors only: provided, visory in its character, it is not interdicted that no license shall be granted for a less by this provision, although it amends by im period than six months: and be it further plication other legislation upon the same sub provided, that no license to sell spirituous. ject. Such an act, although it may operate malt or vinous liquors shall be granted by to change or modify prior acts, is not within any incorporated city or town for a less sum the mischief designed to be remedied by said than that hereinbefore specified," etc. The section 22. “Statutes," says Judge Cooley, effect of this act, if valid, was to amend the "that amend others by implication are not charter of every city and incorporated town within this provision, and it is not essential in the state. As the city of Astoria by its that they even refer to the acts or sections charter had the power conferred upon it which by implication they amend." Cooley, through its common council to license and Cunst. Lim. p. 152. Hence an act of the leg tax barrooms and drinking shops, and, in
form, and are its fa 2
emendatry at, pursuance thereof, had passed an ordinance sess and collect taxes; or, in other words, it
fixing the sum at $200 per annum, for which operated to amend such section by repealing,
of the act was to repeal such ordinance in But the act does not purport to be an amendPiet, teen so far as it fixed a different amount for the ment of any previous statute, special or gen
license than the sum prescribed by the act, eral. It is an independent aqt of legislaveral act anders
and to limit the power of the common coun tion, complete and perfect in itself. The ities and des
cil, under the charter, to grant licenses for power conferred, and the duties imposed, powe
sums less than those named in the act. and all matters connected therewith, are had been
While, therefore, the effect of the act was specified in the body of the act. It shows by special 2017
to alter or change to this extent an existing on its face what the law is to be. Neither
power, it was produced by such act repeal the legislators nor the public could fail to hose me
ing pro tanto, by implication, the section of discover its purpose and meaning, without
self is complete; its meaning and scope plain same subject. It is entitled "An act to se i ha and its
and apparent; nor is there anything on its cure a more convenient mode of making as
face to evince an amendatory character. It sessments and collecting and paying taxes," the ac
is an independent act of legislation, designed etc., and establishes a new policy of the to regulate the sale of liquor in the state. state in reference to the assessment and colWhen an act of this character so operates lection of taxes. Such an act does not fall as to modify or change prior acts of legis. within the constitutional provision or mislation, it does not fall within the mischief chief intended to be remedied. designed to be remedied by the constitution, The adjudications are numerous to the although the effect is to alter or amend by effect that an act which does not assume to implication some prior legislation upon the amend prior legislation, and is a complete same subject. To hold otherwise, and give and perfect act in itself,—its purpose and this constitutional provision the construction scope apparent on its face,-is not interclaimed, would be, in effect, to declare that dicted by the constitution, although it the legislature is powerless to pass any act amends by implication other statutes on the changing or altering in any respect the stat same subject. In People v. Mahaney, 13 ute law of this state without re-enacting and Mich. 496, where a similar provision of the republishing at length every section of all constitution of Michigan was under considprior statutes, general and special, that eration, it was held that an act establishing might be affected by the new statute. We a policy of government for an incorporated do not think that such construction is ten city, which did not assume in terms to reable, or sustained by the adjudications. vise, alter, or amend any section of the city Statutes which amend or repeal others by charter, was valid, although by the transfer implication are not obnoxious to the consti of the duties from one officer to another it tution. If, therefore, the general act now had an amendatory effect by implication on in question is complete in itself as an inde sections of the city charter which were not pendent act of legislation, although it may re-enacted and republished. Cooley, J., said: operate to change or modify some prior law, "It is next objected that the law is invalid it does not fall within the constitutional in because in conflict with section 25 of article hibition, and is valid. In form the act is 4 of the constitution, which provides that original, and not amendatory. It does not 'no law shall be revised, altered, or amended assume to amend or revise any prior general by reference to its title only; but the act or special act, or section thereof, but, by revised, and the section or sections of the conferring on the county officers the power act altered or amended, shall be re-enacted to assess and collect taxes for the cities and and published at length.' The act before us school districts of the state, it had an amend. does not assume, in terms, to revise, alter, atory effect by implication upon such prior or amend any prior act, or section of an legislation as conferred that power on such act, but by various transfers of duties it has cities and school districts, and by its last an amendatory effect by implication, and by section expressly repeals all laws providing its last section it repeals all inconsistent for assessors in or assessments of property acts. We are unable to see how this conin school districts, incorporated towns, or flicts with the provision referred to. If, cities. The city of Astoria having the power
whenever a new statute is passed, it is necconferred on it by section 38, supra, to as essary that all prior statutes modified by it sess, levy, and collect taxes for municipal by implication should be reenacted and pubpurposes, the effect of the general act in con lished at length as modified, then a large ferring upon the county officers the power to portion of the whole code of laws of the assess and collect taxes, but not to levy state would require to be republished at them. for cities and school districts of the every session, and parts of it several times state, was to deprive the city of the right over, until, from mere immensity of mateto exercise such power, and, as a Conse rial, it would be impossible to tell what the quence, the act operated to change or alter law was. If, because an act establishing a section 38 by striking out the power to as police government modifies the powers and
duties of sheriffs, constables, water and sew stances provisions of this kind aro contained er commissioners, marshals, mayors, and jus in long sections, in which it is usual to extices, and imposes new duties upon the ex press and define the general powers of corpo ecutive and the citizen, it has thereby be rations. Sometimes they are distributed in come necessary to re-enact and republish the appropriate places in different sections of various laws relating to them all as now the acts. If this constitutional provision has modified, we shall find, before the act is made it necessary to the validity of a Dew completed, that it not only embraces a large statute on the subject that every prior stat. · portion of the general laws of the state, but ute on the same subject which may be alalso that it has become obnoxious to the tered or modified should be inserted in it at other provisions referred to, because embra- length, it would be quite impossible to lez. cing a large number of objects, only one of islate at all on the subjects mentioned, or on which can be covered by its title. This con kindred subjects; for a statute which would stitutional provision must receive a reasona comply with such a requirement would prob ble construction, with a view to give it ef ably be obnoxious to that other provision fect. The mischief designed to be reme of the constitution that every law should emdied was the enactment of amendatory stat brace but one object, and that object should utes in terms so blind that legislators them. be expressed in its title." The same rule of selves were sometimes deceived in regard to construction has been applied in other states. their effect, and the public, from the dif Branham v. Lange, 16 Ind. 497; Lebman culty in making the necessary examination V. McBride, 15 Ohio St. 603; Ex parte Pol. and comparison, failed to become apprised lard, 40 Ala. 77; Bridge Co. v. Olmstead, of the changes made in the laws. An amend- 41 Ala. 9; Shields v. Bennett, 8 W. Va 75; atory act which purported only to insert cer Baum v. Raphael, 57 Cal. 361; Fleischner tain words, or to substitute one phrase for v. Chadwick, 5 Or. 155; Cooley, Const. Lim. another, in an act or section which was only 183. referred to, but not published, was well In coming to the conclusion reached in calculated to mislead the careless as to its this case we have not overlooked the princeffect, and was, perhaps, sometimes drawn ple that a general law will not be considered in that forin for that express purpose. End as modifying or repealing a special or local less confusion was thus introduced into the law, except by express words or necessary law, and the constitution wisely prohibited implication. “Laws special and local in such legislation. But an act complete in it their application,", says Allen, J., "are not self is not within the mischief designed to be deemed repealed by general legislation, exremedied by this provision, and cannot be cept upon the clearest manifestation of the held to be prolibited by it without violating legislature to effect such repeal, and ordiits plain intent." This construction of the narily an express repeal by some intelligtMichigan constitutional provision was reaf ble reference to the special act is necessary firmed in People v. Wands, 23 Mich. 385, and to accomplish that end." People v. Quiga, in Swartwout v. Railroad Co., 24 Mich. 389. 59 N. Y. 88. “But," as was said by Dixon, In Evernham v. Hulit, 45 N. J. Law, 53, J., "there is no rule of law which prohibits where a similar provision of the New Jersey the repeal of a special act by a general one; constitution was under consideration, Depue, nor is there any principle forbidding such reJ., said: “A construction of this constitu- | peal without the use of express words de tional provision which would sustain the con clarative of the legislative intent to repeal tention of the plaintiff would lead to the the entire statute." New Brunswick v. WImost embarrassing results. It would be liamson, 44 N. J. Law, 167. The question equivalent to holding that the legislature is one of intention, and the purpose of the can pass no act changing any part of the general act to modify or repeal the special statute law in force in this state without act must be clearly manifested-the confiict re-enacting at length every section in the must be irreconcilable in the absence of el. whole body of existing statutes that might be press words declarative of the legislative affected by the new legislation. Since the intent. Brown v. City of Lowell, 8 Metc. constitutional amendinents went into effect, a (Mass.) 172; Brown v. County Com'rs, 21 considerable number of acts have been pass Pa. St. 42; State v. Fitzporter, 17 Mo. App. ed designed to simplify and make more effica 273; Fosdick v. Village of Perrysburg, 14 cious the mode of making and collecting Ohio St. 485, 436; Sedg. St. Law, p. 123. assessments for local improvements in the In the case at bar the intent of the general municipalities of this state. These were sub. act to interfere with the power conferred jects specially provided for in sections con by section 38 of the charter is clearly madltained in their several acts of incorporation. fest, and the last section is expressly de General acts have also been passed provid clarative of that purpose. In State v. Wright, ing for the assessment, collection, and lien supra, the general and special act, in the of taxes,-subjects specially provided for in particular noted, are not only clearly in cotsections incorporating cities, towns, and sistent with each other, but the act also townships, as well as in several parts of the expressly declares that "no license to sell general tax law of this state. In many in spirituous, malt or vinous liquors shall be