Page images

unto annexed that said petition is duly signed in Polk county, Ore., on the 29th day of Noby three freeholders of the above-damed road vember, 1919, and we, the undersigned chairdistrict who are each resident taxpayers and man and secretary of said meeting, hereby cerduly qualified voters of said road district, and tify that the following is a true report of said that it is necessary and proper that a meeting meeting: should be called as therein prayed for, it is "That there were present at said meeting 17 therefore ordered that the said petition be, and resident taxpayers of said road district, a list the same is hereby, approved, and that a meet- of whom is hereunto attached and made a part ing of the legal voters of said district be called of the minutes of the meeting. for the purpose of levying a special road tax, at “At the time and place above mentioned the Lincoln Schoolhouse in said district, on Satur- said meeting was organized by the election of day, the 29th day of November, 1919, at the R. C. Shepard as chairman and W. Frank hour of 10 o'clock a. m. of said day, and that Crawford as secretary of the meeting, who due notice of said meeting be given as re- thereafter performed the duties of their respecquired by law.

tive offices. "And it further appearing that R. C. Shepard “The chairman then stated that the meeting is a competent person for the posting of the was called for the purpose of voting an addinotices of said meeting in said road district, it tional tax for road purposes, and be then read is therefore ordered that said R. C. Shepard be, the notice for the call of the meeting, and the and he is hereby, authorized, ordered, and di- proof of posting same in three public places in rected to post three notices in conspicuous said district, and on the bulletin board at the places in said road district.

county courthouse, in the city of Dallas, Polk "And it is further ordered that John W. Orr, county, Ore., and he also read a copy of said sheriff of Polk county, be, and he is hereby, notice published in the Polk County Observer, directed to post one copy of such notice on the together with the proof of publishing same. It bulletin board at the Polk county courthouse. was moved, and seconded, that the resident tax

"A. B. Robinson, Judge. payers present proceed by ballot to vote a tax

“T. J. Graves, Commissioner." of $4,000.00 to be levied on all the taxable prop“Thereafter, A, B. Robinson, county judge of erty in this road district as an additional tax to Polk county, Ore., issued the following notice: improve the roads of this district. The chair

man then stated that if this tax is levied it "Notice.

will be an increase of more than 6 per cent.

over the special tax of the previous year. The “Notice is hereby given that a road district majority of the resident taxpayers present votmeeting will be held at the Lincoln Schoolhouse, ed in favor of said tax, and said vote was as folin road district No. 4, in Polk county, Ore., on lows, to wit: Ayes, 16, Nays, 0. Saturday, the 29th day of November, 1919, at

"The chairman declared the said levy of addi10 o'clock a. m., for the purpose of levying an tional tax duly made by a majority vote of the additional tax for road purposes in said dis- taxpayers present at said meeting, and the trict. A. B. Robinson, County Judge.”

same was so levied.

“Xo further business appearing, the meeting, The complaint then recites:

on motion, was adjourned.

“Approved Saturday, the 29th day of Novem“A copy of which notice was posted on the

ber, 1919. R. C. Shepard, Chairman. bulletin board at the courthouse in Dallas,

"W. Frank Crawford, Secretary, Ore., 10 days prior to the 29th day of Novem

"Moved by W. F. Crawford tax be $3,000. ber, 1919, to wit, on the 12th day of November,

“Amended by Chas. Scott to be $4,000. Ser. 1919, by John W. Orr, sheriff, and a copy of enteen voted for amendment (names follow)." said notice was posted on November 12, 1919, in road district No. 4, by R. C. Shepard at the following places: On Zena Corner tree, on

The court sustained demurrer to the comLincoln Store Building front, and on Four plaint. The plaintiff's refusing to plead furCorners post, and an affidavit was filed with ther, a nunc pro tunc decree was entered, the county clerk by R. C. Shepard, alleging that dismissing the complaint as of the 15th day each of said notices was posted in a conspicu- of November, 1920. From that decree the ous place within road district No. 4, and an plaintiffs peal to this court. affidavit was filed by E. A. Koen, alleging that

Plaintiffs assert in their brief that the tax he was publisher and printer of the Polk Coun is void because sections 12, 13, 14, and 15, :y Obscrver, a weekly and semiweekly newspaper, and that a copy of said notice was publish- chapter 299, General Laws of 1917 (sections ed for once a week for three successive and 4588, 4591, Or. L.), are unconstitutional, as consecutive weeks, commencing with the issue failing to comply with article 4, section 20, of said newspaper dated and published Novem. Constitution, providing that "every act shall ber 13, 1919, and ending with the issue dated embrace but one subject, and matters propand published November 27, 1919; that on or erly connected therewith, which subject shall about November 30, 1919, there was filed in the be expressed in the title;” second, that the office of the county clerk minutes of taxpayers' meeting as follows, to wit:

tax is void because of the failure of the peti.

tion or notice to show an itemized budget; "Minutes of Taxpayers' Meeting. further, for the reason that the total levy "Be it remembered that a meeting of the was expressed in dollars and cents, and not resident taxpayers of road district No. 4, in the made in mills; again, because of the incounty of Polk, state of Oregon, was held at definiteness of the statute relating to the pubthe Lincoln Schoolhouse, in road district No. 4, lication of notice; and, finally, because of

[ocr errors]

(209 P.) the absence of budget as required by chapter | Richardson, 48 Or. 309, 85 Pac. 225, 8 L R. 106, Laws of 1919.

A. (N. S.) 362. George S. Shepherd, of Portland, for ap

[1] It is a well-established rule that before pellants.

the court can declare a law unconstitutional

on the grounds averred, the conflict must be BROWN, J. (after stating the facts as palpably plain, and all reasonable doubt must above). Article 4, section 20, of the Consti- be resolved in favor of the validity of the tution, providing that "every act shall em

law. State v. Shaw, 22 Or. 287, 29 Pac. 1028. brace but one subject, and matters properly It is held in Murphy v. Salem, 49 Or. 54, 87 connected therewith, which subject shall be Pac. 532, that this provision of the Constiexpressed in the title,

has been

tution does not require the "matters properly before the court many times for exposition, in the title. It was said in David v. Port

connected" with the subject to be expressed and the cases are in accord. In the early case of Simpson v. Bailey, 3 Or. 515, this section land Water Committee, 14 Or. 98, 12 Pac. of the Constitution received the court's atten- 174, that “An act to amend an act to incortion. In 1868 (Laws 1868, p. 59) the Legisla- porate the city of Portland, approved,” etc., tive Assembly passed an act entitled "An act sufficiently discloses its object. The title to change the location of the county seat of need not specify the object in all particuUmatilla county." Section 1 of that act lars; it may state the general subject, but provides for an election to locate the county need not particularize. seat, and, among other things, that

Constitutional provisions such as ours, re

lating to titles of statutes, are mandatory, yet "The present location, Umatilla landing, shall they are to be liberally construed. They be one candidate; and Upper Umatilla, somewhere between the mouths of Wild Horse and

were not designed to impede legislation. Birch creeks, the other candidate, to be voted State v. Shaw, supra; State v. Koshland, 25 upon at said election."

Or. 178, 35 Pac. 32; Escott v. Crescent Coal,

etc., Co., 56 Or. 190, 106 Pac. 452. This court Section 2 provides for the writing of the will not hold this statute unconstitutional, names of the candidates upon the poll books; even though it be of opinion that a better tisection 3, that the county court shall convene tle might have been written. As was said in within one month after the election and ap- State v. Morgan, 2 S. D. 32, 48 N. W. 314: point "three competent persons to locate the site for the erection of new county buildings,

"Whatever may be the scope of the act, it and shall immediately select some point be can embrace but one subject, and all its provitween the said mouths of Wild Horse and be parts of it, incident to it, or in some rea

sions must relate to that subject. They must Birch creeks on the Upper Umatilla as in sonable sense auxiliary to the object in view. their judgment shall best subserve the inter- This constitutional requirement is addressed ests of the whole county, and shall give an to the subject, not to the details, of the act. appropriate name to said new county seat.” That subject must be expressed in the title.

Section 4 provides for time of removal, and The subject must be single; the provisions to section 5, for expenses. The constitutional- accomplish the object involved in that subject

may be multifarious. It is not enough that the ity of the act was challenged because of sev

act embraces but one subject, and that all its eral alleged distinct subjects of legislation parts are germane; but the title must express embraced in the act. The court said: the subject, and comprehensively enough to in

"It is true that this act provides for the sub- clude all the provisions in the body of the act. mission of the question of the change of loca- The title need not index all the details of the tion to the voters, the selection of the new act. It is sufficient if the language used in the site and the removal of the county buildings; title, on a fair construction, indicates the purbut we apprehend that those are all matters pose of the Legislature, so that making every properly connected with the change of the lo- reasonable intendment in favor of the act it may cation, which is the subject expressed in the be said that the subject of the law is expressed title of the act.

The object of the in the title. As said by the Supreme Court of provision evidently was to prevent matters Illinois, in the case of Johnson v. People, 83 wholly foreign and disconnected from the sub- Ill. 436, 'The Constitution does not require that ject expressed in the title from being inserted the subject of the bill shall be specifically and in the body of the act. This restriction is a

exactly expressed in the title; hence we convery important one, and well calculated to pre- clude that any expression in the title which vent imposition being practiced upon unsuspect calls attention to the subject of the bill, aling members, by procuring their votes for bills though in general terms, is all that is required. with fair titles, which contain objectionable The Constitution authorizes one subject, and matters unconnected with the subject expressed any number of matters, provided they have any in the title."

natural or logical connection with each other in

legislation.'" This decision was followed in McWhirter v. Brainard, 5 Or. 426; cited and explained The writer is of opinion that what the in Singer Mfg. Co. v. Graham, 8 Or. 17, 34 court said in Commonwealth v. Broad St. Am. Rep. 572; cited in O'Keefe v. Weber, 14 Rapid Transit St. R. Co., 219 Pa. 11, 67 Or. 55, 57, 12 Pac. 74; in State ex rel. v. Atl. 958, is sometimes applicable to our own

209 P.-31

[ocr errors]


situation in the preparation of bills. The it of necessity contemplates the use of pub-
language follows:

lic moneys. Such funds are usually derived
“In the desire to conform to the constitution from taxation in some form. Hence the mat-
al requirement that the subject of an act must ter of levying a special tax for the construc-
be clearly expressed in the title it has become tion and maintenance of public roads is
quite usual to load the title with details that clearly germane to the title of the act pro-
have no proper place there, and produce certain viding for

constructing, improve
inconvenience and not improbable danger. Ex: ing, reconstructing, repairing and maintain-
pressio unius exclusio alterius.


ing public roads."
has always been held that the title of an act
need not be a complete index to its contents, sions are "indefinite and uncertain” in regard

[3] The act is attacked because its provi.
The time has come to say that it not only to the publication of notice of taxpayers'
need not but ought not."

meeting, this view being based upon Leffing-
[2] The title of chapter 299, Laws of Ore well v. Lane County, 64 Or. 144, 129 Pac. 538,
gon 1917, the act assailed, reads:

and Linn & Lane Timber Co. v. Linn County,
"To provide for surveying, opening, construct- 65 Or. 595, 133 Pac. 347. Neither of these
ing, improving, reconstructing, repairing and

cases applies to the present statute. Those
maintaining public roads, and repealing" certain

cases annulled section 6321, L 0. L., and
acts and parts of acts.

held that

"It is so indefinite as to be invalid, in that it
Plaintiffs aver that sections 12, 13, 14, and does not direct whether notice is 'to be given
15 of this chapter are unconstitutional be- before or after the meeting, does not expressly
cause of their alleged conflict with the pro authorize the taxpayers to call such a meet-
hibition contained in article 4, section 20, of ing, does not specify the length of time notice
the Constitution. We here set out the title shall be given, and does not prescribe a method
for the purpose of ascertaining whether the of proving that notice was given, or that the
words therein used are broad enough to in- persons participating in the meeting were tax.

clude the provisions of the sections of
statute referred to. The words "to provide

The defects in the old statute have been
for constructing public roads" convey much

removed by the new.
meaning. At the time the Legislature adopt-
ed this act the term “provide,” as used in lating to the giving of notices of special road

Section 15, chapter 299, Laws of 1917, re-
the title thereof, had been judicially deter district meetings, enacts that such notices
mined. In the case of Corvallis & Eastern
R. Co. v. Benson, 61 Or. 359, 368, 121 Pac. shall be prepared by the county court and
418, 421, this court, speaking through Mr. that they shall set forth the purposes of such

signed by the county judge or commissioner;
Justice Burnett, said:

meeting, and the time and place it is to be
"It is urged on the part of the defendants that held. In providing for the giving of notices,
to say in the title of the act of 1874 that it is the statute requires that—they be posted by
'to provide for the construction of the Willa certain persons therein named, or by other
mette Valley & Coast Railroad' does not indi-
cate that a grant of any state lands was to be

competent persons-
made to the company, and that such a grant, "at least ten days before the time stated there.
not being germane to the title, cannot stand. in for holding such meeting, in three conspie-
'Provide' means 'to obtain or make ready sup- uous places within such road district, and in the
plies or means for future use.' Standard Dic- customary place for posting notices at the
tionary. Also: "To look out for in advance; to courthouse in the county wherein such road dis-
procure beforehand; to prepare; to supply, af-trict lies, and, if such notices are for a meeting
ford, contribute; to furnish, procure things in called for the purpose of voting a special tax,
advance; to take measures in view of an ex- by also causing the same to be published once
pected or possible need.' Webster's New Inter- each week for two successive weeks in a news-
national Dictionary. Further: "To procure or paper of general circulation throughout said
furnish supplies;

to make ready, county. Proof of the posting of any such no-
prepare.' Century Dictionary. The act of 1874 tices shall be made by affidavit of the person
by its terms granted the tidelands in the then posting them, endorsed upon or attached to a
county of Benton to the Willamette Valley & certified copy of the notices posted, and filed
Coast Railroad Company, and authorized it to with the county clerk."
mortgage them, under certain conditions, for
the purpose of raising funds for the construc- It is true that while the statute provides
tion of the road. Within the meaning of the that the notices must be posted at least 10
definitions of the term 'provide,' as noted above, days before the time for holding the special
this was clearly germane to the title of the road meeting, it does not in terms directly
act. It was plainly notice to any legislator
voting upon the bill that the state intended in state that the notice published in the news-
some way to aid the construction of the road." paper is required to be so published for two

successive weeks prior to such meeting. But
It costs money to survey, lay out, grade, from the act as a whole, and from the lan-
rock, or to pave highways; and when the guage used in the section concerning the giv-
Legislature undertakes to provide for the es- ing of notice, the natural inference is that
tablishment and construction of public ways, it was the intent of the Legislative Assembly

[ocr errors]
[ocr errors]

(209 P.) and its intent, when ascertained, is the law compute and extend such tax levy on the --that the notice of the meeting published in assessment roll for that year. the newspaper, like the notice posted, should The statute is sufficient, and has been folappear before the date of the special meeting. lowed.

[4] It is a canon of construction that in This case is affirmed. the interpretation of statutes, the duty of the court is to ascertain and give effect to the BURNETT, C. J., took no part in this deintention of the Legislature. Another maxim cision, of construction is that, if reasonably possible, a statute should be so construed as to render it valid. This can be done without violence to the language of the statute.

MOCANN V. OREGON SCENIC TRIPS [5] We now come to the assignment relat

Co. et al. ing to the absence of budget. Section 4088, L. 0. L. (5139, Or. L.), is sections 43 and 44 (Supreme Court of Oregon. Oct. 3, 1922.) (page 41) Gen. Laws of Oregon 1901, which 1. Action am 22-Distinction between law and is an act "to further provide for the estab

equity still maintained. lishment of a uniform and general system of public schools in Oregon.


The distinction between actions at law and act was amended by chapter 56, Laws of suits in equity is still maintained in Oregon. Oregon 1915, again by chapter 206, Laws of 2. Courts em 17-Circuit court held to have Oregon 1917, and again by chapter 106, Laws jurisdiction of the subject-matter, whether of Oregon 1919. The act of 1915 amended the proceeding was action for goods sold or suit

to foreclose lien. statute by providing that, “No tax shall be levied at any meeting unless subject-matter of a proceeding, whether it was

The circuit court bad jurisdiction of the the call for such meeting shall contain an item. ized budget showing contemplated expenditures.” mobile accessories sold and delivered, or a

an action for the price of tires, tubes, and auto

su to foreclose a lien on the automobile truck This provision was carried into the later

for which they were supplied. amendments noted, and bad reference to tax. es levied under the act establishing a “uni. 3. Appearance em 19(1) - General appearance form and general system of public schools in gives jurisdiction of person, Oregon.

No attempt was made The circuit court had jurisdiction of deto include road districts. Chapter 222, Laws fendant's person where he appeared generally 1915, the budget law affecting road districts, in the case. was held to be unconstitutional in Martin v. 4. Judgment om 107-Demurror, though not Gilliam County, 89 Or. 394, 173 Pac. 938. well taken, sufficient to prevent judgment for The language of the road law, reading: want of answer.

"In all other regards, the law of this state A demurrer, though not well taken, amountgoverning school district meetings, shall con- ed to an answer preventing a judgment or detrol at all road district meetings to be held for cree for want of answer. that purpose"

5. Appeal and error om 193(9)-Insufficiency

of facts alleged to constitute cause of suit --was never intended to extend the budget

may be first urged on appeal, law of school districts to road districts.

A defendant angwering by demurrer not "The terms 'tax' and 'taxes' have been defined well taken, and appealing after the demurrer as a rate or sum of money assessed on the was overruled, may urge for the first time in person or property of a citizen by government the Supreme Court that the complaint does for the use of the nation or states; burdens not state facts sufficient to constitute a cause or charges imposed by the legislative power up- of action. on persons or property to raise money for public purposes.

37 Cyc. 706.

6. Livery stable and garage keepers Om8(4)

No personal decree against defendant when [6] Section 14 reads, in part:

there was no personal obligation for the debt. "The resident taxpayers of any road district

Under Or. L. 8 422, no personal decree in in any county of this state may vote an addi- equity could be rendered against defendant in tional tax not to exceed ten mills on the dollar a suit to foreclose a lien on an automobile on all taxable property of the road district" truck for the price of tires and accessories fur,

nished for use on such truck, where no prom-when authorized by the county court upon issory note or other personal obligation for the proper petition. If a majority of legal voters debt was shown. present favor such a tax and vote for it, the 7. Bailment en 18(2)-One who would enjoy chairman and secretary of the meeting shall benefit of statutory lien must bring himself cause to be filed with the county clerk a cer- within terms of statute. tified copy of the minutes of the meeting, Liens, such as that created by Or. L. 88 and the clerk shall furnish a certified copy 10272, 10273, giving a lien to one expending thereof to the county assessor, who shall ) labor, skill, or materials upon any chattel at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the owner's request, are creatures of the stat. / performed and rendered in and about said lastute which extend the common-law lien, and described automobile truck. That no part of one who would enjoy the benefit of the law the said $478.14 has been paid and that there must bring himself within its terms.

is now due and owing to this plaintiff from

said last-named defendant the said sum of 8. Livery stable and garage keepers 8(4),

$478.14. Complaint to enforce lien insufficient when it does not appear labor, skill, and materials Trips Company, was on the dates heretofore

“(4) That said defendant, Oregon Scenic supplied within county or state.

mentioned the owner or reputed owner of the In a suit to foreclose a lien under Or. L. said above-described automobile truck, and that 88 10272 and 10273, for labor, skill, or materials at the time said merchandise was so sold and expended upon an automobile, the complaint said services so performed the said last-named is insufficient to constitute a cause of suit defendant was in possession and control of said where neither the complaint nor the notice of last-described automobile truck. lien shows that the labor, skill, or materials

“(5) That the above-named plaintiff duly were expended within the county where the filed, as required by law, his claim for lien for notice was filed, or even within the state.

the amount due and owing him as aforesaid 9. Judgment 249_Not rendered as in action by said defendant in the office of the county

at law where case brought and tried as suit clerk in the county of Clatsop, state of Orein equity.

gon, on the 6th day of October, 1920, and withWhere the complaint was drawn, the cause nishing and delivering of said automobile tires

in 60 days from the date of the sale and furtried, and the issue raised by defendant's de- and accessories to said defendant, and the ren murrer for want of facts sufficient to constitute dering of said services to said defendant, which a cause of action was heard and determined, and a decree rendered on the theory that the claim for lien so filed was duly signed by claim. proceeding was a suit in equity to foreclose a ant, and contained the name of the owner, or lien, judgment will not be entered as in an reputed owner, of said automobile truck and action at law for goods sold and delivered until a description of said automobile sufficient for defendant is afforded an opportunity to try

identification, upon which and for which the said the controversy as an action at law,

plaintiff so sold and delivered said automobile

tires and accessories and services so performed, Burnett, C. J., dissenting in part.

and the amount for which the said lien was

claimed and the dates upon which said materiDepartment 1.

als and services was started to be so sold and Appeal from Circuit Court, Clatsop Coun- delivered, and which notice was verified by said ty; J. A. Eakin, Judge.

plaintiff, and contained all other material facts

in relation thereto, a copy of which notice of Action by J. P. McCann against the Oregon lien is hereto annexed and made a part of this Scenic Trips Company and others. From a complaint and marked Exhibit A. final order in favor of plaintiff, the defend- .“(6) That there is now due and owing said ant named appeals. Reversed and remanded. plaintiff for said automobile tires, tubes, and M. B. Meacham, of Portland (Norblad & fendant, Oregon Scenic Trips Company, and for

accessories so sold and delivered the said deHesse, of Astoria, on the brief), for appel said services performed, the said sum of $478.lant.

14, and that said last-named defendant has reJames L. Hope, of Astoria, for respondent. fused to pay the same, and said plaintiff has

a good and valid claim for lien upon the aboveBURNETT, C. J. After stating the corpo- described automobile truck.” rate entity of the defendant, the complaint proceeds as follows:

The pleading closes with the general asser

tion that the defendants Henry and Rose “(2) That heretofore, and between the 8th have some claim against the automobile in day of August, 1920, and the 27th day of August, 1920, the said plaintiff sold and delivered question in the nature of a chattel mortgage, to the above-Damed defendant, Oregon Scenic and that $100 is a reasonable amount to be Trips Company, certain goods, wares, and allowed the plaintiff for attorney's fees in merchandise, consisting of automobile tires and the foreclosure of the lien. Another count as accessories of various descriptions, and per- to another automobile is inserted in the comformed certain services in and about the herein- plaint in identical terms except as to amount after described automobile, all at the agreed and description. and reasonable price of $478.14.

The defendant demurred to the complaint "(3) That the said tires, tubes, and automo- on the following grounds: bile accessories so sold and delivered to the said defendant, Oregon Scenic Trips Company,

"That the court has no jurisdiction of the by said plaintiff were so sold and so furnished person of these defendants, or either of them, the said defendant to be used, and which to or of the subject of the action. plaintiff's information and belief were used, on

"That the complaint does not state facts sufthat certain United States automobile truck ficient to constitute a cause of action." bearing Oregon license for the year 1920 No. 80087, and bearing motor No. 3781-20, and The court overruled the demurrer, and that said services so rendered by said plaintiff afterwards, the defendant refusing to plead for said last above-mentioned defendant were further, rendered a personal decree against

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« PreviousContinue »