« ΠροηγούμενηΣυνέχεια »
are merely imposed, by fair : implication, their officer, but acted only in his behalf (citing performance may be coitpeHed by mandamus, Words and Phrases, “Deputy'). and the remedy, extends' to enforcement of con- (Ed. Note.--For other cases, see Mandamus, tracts involving official duties, though not to Cent. Dig. 88 291, 292; Dec. Dig. 151.] wholly•Pritate contracts. Ed: Nöte. For other cases, see_Mandamus,
& STATUTES 64, 181-CONSTRUCTION-RE.: Cerit. 'Dig. 88 37, 180-183; Dec. Dig. Omw10, 1
| PUGNANCY-PARTIAL INVALIDITY. • 84.]
Statutes must be so construed as to effectu
ate the intention of the Legislature, and where 3. HIGHWAYS 96–CONSTRUCTION-DUTIES
part of a statute is valid and conforms to the obOF STATE ENGINEER—"PERSONS INTERESTED."
vious intent, but a later section is repugnant and Under Laws 1913, p. 664, § 6, requiring the
void, the statute is void only as to that section. state highway engineer to collect data and fur
1 (Ed. Note.-For other cases, see Statutes, nish the same to all persons interested in road
Cent. Dig. $8 58-66, 195, 259, 263; Dec. Dig. building, the contractor building a county road
64, 181.) is an "interested person," and entitled to the information.
9. CONSTITUTIONAL LAW C62_LEGISLATIVE Ed. Note.-For other cases, see Highways, POWER-DELEGATION. Cent. Dig. $8 313, 314, 316, 317, 319-322, 356; | An order of the state highway commission Dec. Dig. Cm96.'
attempting to vary the duties imposed by statFor other definitions, see Words and Phrases, |
ute on the state engineer is void, since under First and Second Series, Interest.]
Const. art. 4, § 1, legislative power cannot be
delegated to such a commission, being reposed 4. HIGHWAYS On96-CONSTRUCTION-DUTIES in the Legislature. OF STATE ENGINEER.
[Ed. Note. For other cases, see ConstitutionLaws 1913, p. 664, § 6, requiring the state highway engineer to collect data on road build
| al Law, Cent. Dig. 88 94-102 ; Dec. Dig. Om62.] ing and advise county officers in charge of roads 10. HIGHWAYS Om 112CONSTRUCTION-STATrelative to road construction, requires active UTES-EXECUTION. co-operation, and not casual advice and aid to be Under statutes providing for highway congiven by the engineer.
struction, the determination of completion ar [Ed. Note.--For other cases, see Highways, the amount due for the work, is a part of the Cent. Dig. $8 313, 314, 316, 317, 319-322, 356; construction. Dec. Dig. 96.)
[Ed. Note.-For other cases, see Highways, 5. MANDAMUS 93–SUBJECTS OF RELIEF
Cent. Dig. 88 346, 347, 351-355 ; Dec. Dig. Ons
112.) OFFICIAL DUTIES.
The duties imposed by Laws 1913, p. 663, In Bane requiring the state highway engineer to provide
In Banc. Mandamus by Andrew Peterson information for the contractor and render assist- and another against John H. Lewis, State ance to the county authorities by furnishing a Engineer of the State of Oregon. Heard on final estimate of the amount of the work done demurrer to the alternative writ. Demurrer under road contracts, may be enforced by mandamus.
overruled. [Ed. Note.-For other cases, see Mandamus,
This is an original proceeding in mandaCent. Dig. $ 195; Dec. Dig. Om 93.]
mus brought by the plaintiffs Peterson and 6. STATUTES O 125—VALIDITY - TITLE AND Johnson against John H. Lewis, state engiSUBJECT-MATTER. Laws 1913, p. 663, created and prescribed
neer, to require defendant as such officer to the duties of the office of state highway engineer.
make and deliver to the petitioners and to Petitioners contracted with a county to build the county court of Clatsop county, Or., a certain roads, and did build them, the contract
final estimate of the work done by them, and providing that the state highway engineer should make a final estimate of all work done there
the value thereof, under their contract with under, and the value of the work, and that the the county of December 18, 1914, for the county should then, after approving his esti construction of a certain county road theremate, pay the contractor. After making the
in extending from the city of Astoria to the contract, but before completion of the work, Laws 1915, p. 537, was enacted, being entitled west line of Columbia county. The alterna"An act abolishing the office of state highway tive writ asserts the following facts: The engineer," etc., and transferring his duties to
contract provided that the work should be the state engineer, and providing for the appointment of a deputy state engineer, and providing
done according to the plans, specifications, that the office of state highway engineer should and schedule of rates, prices, and maps of be abolished and the duties thereof be placed the road which were prepared by the state under the state engineer, and that a chief deputy state engineer should be appointed, who
highway engineer, and that all the work should perform all the duties of the former state
thereunder should be done under the superhighway engineer. Held, that the last pro- vision of the field engineer selected by the vision, operating only to change the title of the
state highway engineer; the work, however, state highway engineer, was void under Const. art. 4, § 20, as being repugnant to the title of
to be approved and accepted by the latter. the act.
The contract further provided that payment [Ed. Note.-For other cases, see Statutes, for the work done by the contractors should Cent. Dig. 88 187–191 ; Dec. Dig. @ 125.]
be by warrants of Clatsop county issued up 7. MANDAMUS 151–PARTIES–PROPER OF on vouchers of the state highway engineer FICER—“DEPUTY.”
approved by the county court, out of any Under Laws 1913, p. 663, creating and prescribing the duties of the office of the state high
money on hand from the sale of its permaway engineer, as amended by Laws 1915, p. 537, | nent road bonds, or after January 1, 1915, transferring those duties to the state engineer | by warrants drawn on the general fund of and requiring the duties to be performed by his that county. Further provision was made deputy, a performance of the duties could be enforced by mandamus against the state engi- for the making of partial payments during neer, since his deputy was not an independent | the progress of the work upon estimates of
the engineer in immediate charge thereof,, work, the state engineer has failed and reand the contract contained the following: fused to make or deliver to the contractors,
“The state highway engineer shall, as soon or to the county court of Clatsop county, the as practicable after the completion of this con- | final estimate made necessary by the contract tract, make a final estimate of the amount of
before the contractors can enforce any claim work done thereunder, and the value of such work, and Clatsop county shall, at the expira- for final settlement against the county. The tion of 35 days from and after such estimate is defendant demurred to the writ upon the so made, and is approved by the county court of I ground that it does not state facts sufficient Clatsop county, pay the entire sum so found to be due hereunder after deducting therefrom to constitute à cause of action. all previous payments and all amounts to be
Harrison Allen and Griffith, Leiter & Alretained under the provisions of this contract. All prior partial estimates and payments shall eu, au o
ali len, all of Portland, for plaintiffs. G. W. Albe subject to correction in the final estimate len, of Portland, for defendant. C. L. Mcand payment."
Nary and John H. McNary, both of Salem, The road referred to is one which was con- amici curiæ. structed by the county mentioned with funds derived from the issue and sale of its bonds BEAN, J. (after stating the facts as above). under chapter 103, General Laws of Oregon  It is claimed by defendant that the highfor 1913, pursuant to the vote of the tax- way commission by an order relieved the payers of the county. The county court re- state engineer of all duties and responsibilquested the assistance of the state highway ities in connection with the highway work, engineer in the matter of the construction and provided that it should be done by I. E. of the road under the terms of chapter 339, Cantine, chief deputy state engineer. On acGeneral Laws of 1913, p. 663, providing for count of the action taken by the commission, the appointment and prescribing the duties the state engineer endeavors to assume a of the state highway engineer. The contract neutral attitude in the premises. Counsel was executed pursuant to such arrangement. have appeared as amici curiæ, made oral The contractors began the work thereunder argument in the interest of the highway comsoon after its execution, and, except for tem- mission, and also filed a brief. The interest porary suspensions, prosecuted the same un- of the commission should be considered to til September 4, 1914, when it was finished. the same extent as though it were a party According to the terms of the contract, the to this cause. It is contended by the petitionfield engineer in charge of the work fur-ers that under chapter 339, Laws of 1913, nished the contractors with preliminary es- the duties to be performed by the state entimates from time to time during the prog- gineer are separate and distinct from those ress of the work. Based upon these esti- which that act requires him to perform in mates, the contractors were paid installments connection with the state highway commisfrom time to time; the theory of the con- sion; that he is authorized and required by tract being that, after the completion of the law to act for the various counties of the work, the state highway engineer himself state in the capacity of an engineer in the should give to the contractors a final esti- matter of road construction; that he, having mate showing the amount of work done and been substituted for the state highway enthe value thereof, correcting all errors in the gineer, is the only officer recognized by the preliminary computations in order to deter- law or the contract to perform these funcmine the balance due the contractors. The tions. It is suggested on behalf of the destate highway engineer performed the duties fense that the plaintiffs are not entitled to of the engineer under the terms of the con- the benefit of the writ for the reason that the tract, which were requested by the county duty, if it exists, is a contractual one and court, until May 22, 1915. Thereafter they not imposed by law. were performed by a chief deputy state en-  The writ lies to compel the performgineer until August 27, 1915, when the high- ance of an act which the law imposes as a way commission passed an order purporting duty resulting from an office, trust, or stato relieve the defendant of all duties and tion. Whenever the law gives power to or responsibilities in connection with the high- imposes an obligation on a particular person way work of the state of Oregon. There- to do some particular act or duty, and proupon the appointment of the chief deputy vides no other specific remedy for the perstate engineer was revoked by the state en formance thereof, the writ will issue. Dugineer.
ties of this kind need not be specifically statThe petition for the writ alleges that chap-ed in the law. If they are imposed by imter 337 of the General Laws of 1915 imposed plication from a fair, reasonable construcupon the state engineer, an elective officer, tion of the law, it is sufficient. It is not necthe duties previously performed under the essary that they be imposed by law on the contract and law by the state highway en- individual in question, provided he has put gineer by virtue of chapter 339, General Laws himself in the position from which by law of 1913, and that the former is the only offi- the duties accrue. Merrill, Mandamus, & 13. cer or person authorized by law or the con. By the same authority (section 16), since the tract to make such final estimate; further, object of the writ is to enforce duties creatthat although more than 80 days have elapsed by law, it will not lie to enforce private by statutory enactment. Where, however, as such specifications; and such specifications shall contract involves an official duty, the rule is be so furnished free of all costs to such county." otherwise, since that is one of the grounds The latter part of section 6 is as follows: for the issuance of the writ.
“Said engineer may be consulted at all rea[3-5] It is maintained by counsel in behalf sonable times by the county officers having care
+ the chief and authority over highways, culverts and bridgof the highway commission that the chief
es, and shall advise such officers relative to the deputy state engineer is an independent offi- construction, repair, alteration or maintenance cer, upon whom, if any one, the alleged duty of the same, and shall furnish such other inrests. These questions require a construc
formation and advice as may be requested by
persons interested in the construction or maintion of the statutes of 1913 and 1915. First. I tenance of public highways, and he shall at all What were the duties of the highway en-| times lend his aid in encouraging and promoting gineer in the premises. under the provisions I highway improvements throughout the state. of the act of 1913? As we go along it will be officers, and shall assist county authorities in
Said engineer shall co-operate with all highway well, in the same connection, to note to some all matters pertaining to the construction of extent the general purpose and scope of the roads when called upon to do so by the county act in order to keep in mind the legislative court. object and intent. The title indicates that 1 Separate and apart from the duties of the its objects and purposes are: (1) To create engineer relating to the construction of state a state highway commission, defining the du- roads, and the like, as prescribed by the state ties thereof, and making provision for the highway commission, it is plain that the Legpayment of expenses while engaged in the islature imposed upon that officer the duty performance of such duties; (2) to create of furnishing plans and specifications for the office of state highway engineer, provide proposed road construction, upon the request for the appointment of such officer, prescribe of the proper county court, and necessary inhis duties, fix his salary, provide for the con- formation and data therefor. Such plans, duct of subordinates in, and payment of ex- etc., are to be kept on file in his office. By penses of, his office; (3) to prescribe the the terms of the statute this assistance is to duties of the county courts and other county be rendered "free of all costs to such counofficials in relation to the purposes of the ty.” The engineer is directed by law to adact; (4) to provide for the creation of a vise such officers relative to the construction state highway fund, the levying of a tax to or maintenance of highways and bridges create the same, and the use and disburse and to furnish such other information and ments thereof; (5) to provide for the em- advice as may be requested by "persons inployment of convicts on roads; and (6) to terested” in such work. It would seem that make an appropriation for carrying out the persons constructing a highway pursuant to purposes of the act. By this chapter the a contract with a county would certainly be state highway commission is created, and interested in such undertaking within the provision is made for the appointment of a meaning of the statute. Evidently the lawstate highway engineer who shall be versed makers believed that the information and adin scientific road construction. Viewing this vice provided for would avail nothing unless statute from a general standpoint, it appears in case of road contracts it were extended that a scheme was inaugurated for the con- to the contractor and carried out in the construction of roads by the state and its coun-struction of the thoroughfare. Not only is ties working in unison, in order that state the engineer to advise, but section 6 immeand county roads may eventually connect and diately specifies that he shall co-operate with form a continuous highway. In order to ac- and assist, county authorities in such matcomplish this, the act provides that the ters when called upon to do so, following the state highway engineer shall render assist-policy initiated by the federal government ance to the several county courts and high-l in superintending the construction of certain way officers in promoting highways and in
county roads as samples. The law does not the improvement and construction of roads.
contemplate mere casual advice by the engiAs a matter of reciprocity, it enjoins upon
neer, but rather that he shall on appropriate the latter and other county highway officers
occasions act in an advisory capacity in the duty of furnishing the former, upon building public county roads to an extent his written request, with all available in- sufficient to carry into execution the plan formation in connection with the building
which he has made. It provides for renderand maintenance of public highways and
ing valuable aid to counties in the improvebridges in their respective localities. See sec
spective localities. See sec- ment of public roads with the apparent obtion 7. Section 4 of the act directs that the ject of attaining a symmetrical system of engineer shall act in an advisory capacity to highways. An annual tax is ordained to be the county courts of the different counties in levied and an appropriation made to effect the matter of road construction and mainte
| the purpose of the law. In consonance with nance whenever requested so to do. This
the spirit and letter of the statute, the bighsection further specifically provides:
way engineer made plans, specifications, and · "Upon request of the county court of any l estimates for the work which were embraced county said engineer shall furnish specifications in and
ns in and made part of the contract with the for any piece of proposed road construction in such county upon being furnished the necessary plaintiffs, by the terms of which under the
work in the first instance. In short, pursuant engineer shall be under the direct superviston to the statute, he assumed the duties of engi- of said chief deputy state engineer; and such
additional deputies and assistants as the state neer in the construction of the highway.
highway commission shall deem necessary in said In the furtherance of the contract and the road department, shall be appointed by said carrying out of the purpose of the act, that chief deputy state engineer subject to the aplaw imposes the duty upon the engineer to pro
the engineer to proval of the chairman of the state highway
commission." provide information for the contractor and
It is the contention of the plaintiffs: (1) render assistance to the county authorities by
That the state engineer is the only officer furnishing a final estimate of the amount of
recognized by the law or the contract to perthe work done by the petitioners under the
form the duties mentioned; (2) that all that contract; therefore the writ is an appropri
portion of the act of 1915 which attempts to ate remedy to require the proper officer to
impose upon the chief deputy state engineer perform such function. Wren v. Indianapo
the work in the department formerly done lis, 96 Ind. 206; Conn y. Bd. County Com’rs,
by the state highway engineer is void under 151 Ind. 517, 51 N. E. 1062; People ex rel.
section 20 of article 4 of the Constitution, in Peck v. Buffalo State Asylum, 8 N. Y. Supp.
that the act embraces a subject which is not 396:1 State v. Holliday, 8 N. J. Law, 205.
included in the title, namely, that having [6, 7] This brings us to the difficult prob
reference to the performance of the work in lem of ascertaining upon whom the duty men
question by the chief deputy, who was detioned rests. In 1915, the Legislature, adopt
signed as a deputy for the state engineer to ing a policy of consolidation of commissions
be answerable to him in the true sense of and offices, enacted chapter 337 of the Gener
that term. On behalf of the commission it al Laws of Oregon, p. 537. The title of the
is contended that: act is as follows:
| "Those duties defined by the earlier law re"An act abolishing the office of state highway | main unimpaired, but the duties which were engineer as defined by section 3 of chapter 339 originally cast upon the state highway engineer of the Session Laws for 1913, and transferring by prescription from the state highway commisand conferring the powers, duties and work of sion are no longer to be exercised by the state the state highway engineer upon the state engi engineer, but are transferred, by the power of neer, and providing for the appointment of a chapter 337 of the Laws of 1915, upon the depudeputy in the office of the state engineer who ty engineer because the law requires him to be shall be versed in scientific road construction, versed in scientific road construction." and fixing his compensation.'
In its final analysis the position taken in Section 1 provides that the office known as opposition to plaintiffs is that the chief dedthe state highway engineer, as denned by uty state engineer is an officer entirely indesection 3 of chapter 339 of the Session Laws
pendent of the state engineer. The latter of 1913 is hereby abolished, and the powers,
part of section 3 quoted above is in direct duties, and work now performed by, the state
conflict with the title of the act, and if given highway engineer shall be vested in and plac
| literal force, instead of merging the office ed under the charge and direction of the
of highway engineer with that of state engistate engineer, and, wherever in any law now
neer, according to the clearly expressed legin force in the state of Oregon the name islative intent, the effect of chapter 337 would "state highway engineer" appears, it shall be
be merely to change the title of the state highconsidered that the name "state engineer" is
er" is way engineer. Such provision is not within substituted in lieu thereof. Section 2 directs the scope of the title of the act. The title that all records, maps, drafts, and furniture
of an act defines its scope. It can contain no relating to the work and business of the of- valid provisions
of the or- valid provisions beyond the range of the subfice of state highway engineer shall be trans-ject there stated. Sutherland on Stat. Const. ferred and lodged with the state engineer.' $ 145. See, also, State v. Levy, 147 Pac. 919; Section 3 ordains that the chairman of the State v. Perry, 151 Pac. 655. state highway commission may appoint one  We understand it to be a governing chief deputy in the office of the state engi: rule of construction to give a statute such a neer, who shall be versed in scientific road meaning, if possible, as will render it valid construction and duly qualified to act as such,
and effectuate the will of the lawmakers as and who shall serve at the pleasure of the
expressed. Schaedler v. Col. Contract Co., chairman of the state highway commission, 67 Or. 412. 135 Pac. 536; K. P. Ry. Co. v. and whose duties shall be such as prescribed
Conı'rs, 16 Kan. 594. It is a rule of statuby the state highway commission. That sec
tory construction that, where the first section also fixes his salary and provides for
tion of a statute conforms to the obvious expenses.
policy and intent of the Legislature, it is Thus far there is little difficulty or conten
not rendered inoperative by unconstitutional tion as to the meaning of the statutes in ques
provisions in a later section which do not tion. Apparently after the drafting of the
conform to this policy and intent. In such original bill, by an amendment there was
case the later provision is nugatory and will added to section 3 of the act the following: "All work in the department which has here
be disregarded. Article 4, § 20, of the Contofore been in the charge of the state highway
stitution; Endlich on Interpretation of Stat.
$ 183; State v. Bates, 96 Minn. 110, 104 N. 1 Reported in full in the New York Supplement ; w. 709. 113 Am. St. Rep. 612; McCormick
The latter part of section 3 of chapter 337, the construction thereof, is as much the carabove quoted, is repugnant to article 4, § 20, rying into execution of the statute as the en: of the Constitution, which provides that: forcement of any of its other provisions.
"Every act shall embrace but one subject, Roads cannot be constructed without comand matters properly connected therewith, which
94 pensation. subjects shall be embraced in the title. And if any subject shall be embraced in an act which! It being the statutory duty of the state enshall not be expressed in the title, such act shall gineer to furnish the required certificate and be void only as to so much thereof as shall not information, the plaintiffs are entitled to the be expressed in the title.” Clemmensen v. Peterson, 35 Or. 48, 49, 56 Pac. 1015; Spaulding
1015. Spaviding relief prayed for; otherwise they might be Log. Co. v. Independence I, Co., 42'Or. 397, 71 remediless and justice be defeated. Pac. 132; Simon v. Northup, 27 Or. 505, 40 It follows that the demurrer to the writ Pac. 560, 30 L. R. A. 171.
must be overruled, and it is so ordered. Therefore the latter part of section 3 does not relieve the state engineer of the duty EAKIN, J., did not sit. thrust upon him by the two acts, nor make the chief deputy an independent official. On
On Petition for Rehearing. the other hand, it would seem that, after two
BEAN, J. The petition for rehearing sugyears' experience, it was deemed wise by
gests a further ruling as to the working the legislative branch of the state government to so change the modus operandi re.
force of chapter 339, Laws of 1913, as amendlating to the highway engineer as to provide
ed by chapter 337, Laws of 1915. The "state
engineer" being substituted for the "state that the work of that officer should be sub
highway engineer" by the later act, there ject to the supervision of another skilled
can be no question but that all the duties civil engineer; the object being the centraliz
coming within the purview of the statute ing of the responsibilities as recommended in
would devolve upon the state engineer, and the message of the governor appertaining to
for this reason the enactment of 1915 prothat subject, in order to secure a higher
vides the assistance of a deputy for that ofstate of efficiency and promote economy.
ficial. It also subjects the state engineer to That the chief deputy is subordinate to the
the duty of responding to the requisitions of state engineer is indicated by the words
the highway commission in the matter of the “chief deputy state engineer," as well as by
construction of state roads. These additionthe provisions of sections 1 and 2 of the
al explanations cover all the interrogatories later act. A "deputy” is defined in 13 Cyc.
submitted by the petition, in so far as they 1043, as follows:
pertain to the issues raised in this proceed"One appointed as the substitute of another, and empowered to act for him in his behalf or ms. on his bel.alf; one who is appointed, designated Other 'points are ably argued, but are not or deputed to act for another; one who occu- | involved in the litigation, so as to authorize pieth in right of another, and for him regularly his superior will answer; one authorized by an
this court to adjudicate the same. With this officer to exercise the office or right which the explanation, a rehearing will be denied. officer possesses, for and in place of the latter ; one who by appointment exercises an office in EAKIN, J., took no part in the consideraanother's right; one who exercises an office, etc., in another's right having no interest therein, but | tion of this case. doing all things in his principal's name, and for whose misconduct the principal is answerable." To the same effect is 3 Words and Phrases,
– EVANHOFF V. STATE INDUSTRIAL ACC. p. 2008.
COMMISSION et al.  The statute referred to imposes upon the state engineer the duties enumerated in (Supreme Court of Oregon. Dec. 28, 1915.) chapter 339, Laws of 1913. That official is 1. INJUNCTION Om 28WORKMEN'S COMPENresponsible to the state and parties comingSATION ACT-TRIAL BY JURY. within the terms of the act. The chief dep The enforcement of the Workmen's Com
pensation Act (Laws 1913, p. 188), will not be uty state engineer is answerable to his su
enjoined at the suit of an injured servant on the perior. “No man can serve two masters.” ground that the State Industrial Accident ComAny other arrangement in the premises mission and the state treasurer threatened to would naturally lead to chaos and produce
deprive him of the right to a trial by jury, and
wrongfully claimed power to determine the confusion. The state engineer cannot be re
Te amount he might recover, since, even if his allieved of the trust reposed in him by the legations as to the unconstitutionality of the act statute, except by the expressed will of the were well taken, he could test their authority lawmakers, and the order of the highway by bringing his actie
by bringing his action either at common law, or
under the Employers' Liability Act. commission of August 27, 1915, did not have
[Ed. Note. For other cases, see Injunction, that effect. Legislative power cannot be del
Cent. Dig. 88 62–65; Dec. Dig. Om 28.] egated to a commission. Const. art. 4, § 1;2. STATES 16842 - PARTIES - SUIT BY Sutherland on Stat. Const. (2d Ed.) 93; 1 TAXPAYER-PAYMENT OF SALARIES-INDUSState v. Orange, 60 N. J. Law, 111, 36 Atl. TRIAL ACCIDENT COMMISSION. 707.
The only ground permitting the suit was
that plaintiff was a taxpayer of the state, and  The determination of whether or not that, by the unlawful expenditure of moneys apa road is completed, and the amount due for propriated for salaries and claims under the pro