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by statutory enactment. Where, however, a | 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
for the issuance of the writ.

The latter part of section 6 is as follows: "Said engineer may be consulted at all reasonable times by the county officers having care and authority over highways, culverts and bridg es, and shall advise such officers relative to the construction, repair, alteration or maintenance of the same, and shall furnish such other information and advice as may be requested by persons interested in the construction or maintenance of public highways, and he shall at all times lend his aid in encouraging and promoting highway improvements throughout the state. officers, and shall assist county authorities in Said engineer shall co-operate with all highway all matters pertaining to the construction of roads when called upon to do so by the county court."

[3-5] It is maintained by counsel in behalf of the highway commission that the chief deputy state engineer is an independent officer, upon whom, if any one, the alleged duty rests. These questions require a construction of the statutes of 1913 and 1915. First. What were the duties of the highway engineer in the premises, under the provisions of the act of 1913? As we go along it will be well, in the same connection, to note to some extent the general purpose and scope of the act in order to keep in mind the legislative object and intent. The title indicates that 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 highway officers in promoting highways and in the improvement and construction of roads. As a matter of reciprocity, it enjoins upon the latter and other county highway officers the duty of furnishing the former, upon his written request, with all available information in connection with the building and maintenance of public highways and bridges in their respective localities. See section 7. Section 4 of the act directs that the engineer shall act in an advisory capacity to the county courts of the different counties in the matter of road construction and maintenance whenever requested so to do. This section further specifically provides:

"Upon request of the county court of any county said engineer shall furnish specifications for any piece of proposed road construction in such county upon being furnished the necessary information and data to enable him to prepare

in superintending the construction of certain county roads as samples. The law does not contemplate mere casual advice by the engineer, but rather that he shall on appropriate occasions act in an advisory capacity in building public county roads to an extent sufficient to carry into execution the plan which he has made. It provides for rendering valuable aid to counties in the improvement of public roads with the apparent object of attaining a symmetrical system of highways. An annual tax is ordained to be levied and an appropriation made to effect the purpose of the law. In consonance with the spirit and letter of the statute, the highway engineer made plans, specifications, and estimates for the work which were embraced in and made part of the contract with the plaintiffs, by the terms of which under the law that official was made the arbiter of the

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work in the first instance. In short, pursuant | engineer shall be under the direct supervision to the statute, he assumed the duties of engineer in the construction of the highway.

In the furtherance of the contract and the carrying out of the purpose of the act, that law imposes the duty upon the engineer to provide information for the contractor and render assistance to the county authorities by furnishing a final estimate of the amount of the work done by the petitioners under the contract; therefore the writ is an appropriate remedy to require the proper officer to perform such function. Wren v. Indianapolis, 96 Ind. 206; Conn v. Bd. County Com'rs, 151 Ind. 517, 51 N. E. 1062; People ex rel. Peck v. Buffalo State Asylum, 8 N. Y. Supp. 396;1 State v. Holliday, 8 N. J. Law, 205.

[6, 7] This brings us to the difficult problem of ascertaining upon whom the duty mentioned rests. In 1915, the Legislature, adopt ing a policy of consolidation of commissions and offices, enacted chapter 337 of the General Laws of Oregon, p. 537. The title of the act is as follows:

"An act abolishing the office of state highway engineer as defined by section 3 of chapter 339 of the Session Laws for 1913, and transferring and conferring the powers, duties and work of the state highway engineer upon the state engineer, and providing for the appointment of a deputy in the office of the state engineer who shall be versed in scientific road construction, and fixing his compensation."

of said chief deputy state engineer; and such additional deputies and assistants as the state highway commission shall deem necessary in said road department, shall be appointed by said chief deputy state engineer subject to the approval of the chairman of the state highway commission."

It is the contention of the plaintiffs: (1) That the state engineer is the only officer recognized by the law or the contract to perportion of the act of 1915 which attempts to form the duties mentioned; (2) that all that impose upon the chief deputy state engineer the work in the department formerly done by the state highway engineer is void under that the act embraces a subject which is not reference to the performance of the work in included in the title, namely, that having signed as a deputy for the state engineer to question by the chief deputy, who was debe answerable to him in the true sense of that term. On behalf of the commission it is contended that:

section 20 of article 4 of the Constitution, in

"Those duties defined by the earlier law remain unimpaired, but the duties which were originally cast upon the state highway engineer by prescription from the state highway commission are no longer to be exercised by the state engineer, but are transferred, by the power of chapter 337 of the Laws of 1915, upon the deputy engineer because the law requires him to be versed in scientific road construction."

In its final analysis the position taken in opposition to plaintiffs is that the chief deputy state engineer is an officer entirely independent of the state engineer. The latter part of section 3 quoted above is in direct conflict with the title of the act, and if given

Section 1 provides that the office known as the state highway engineer, as defined by section 3 of chapter 339 of the Session Laws of 1913 is hereby abolished, and the powers, duties, and work now performed by, the state 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 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 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 chief deputy in the office of the state engi neer, who shall be versed in scientific road construction and duly qualified to act as such, and who shall serve at the pleasure of the chairman of the state highway commission, and whose duties shall be such as prescribed by the state highway commission. That section also fixes his salary and provides for

[8] We understand it to be a governing rule of construction to give a statute such a meaning, if possible, as will render it valid and effectuate the will of the lawmakers as expressed. Schaedler v. Col. Contract Co., 67 Or. 412, 135 Pac. 536; K. P. Ry. Co. v. Com'rs, 16 Kan. 594. It is a rule of statutory construction that, where the first section of a statute conforms to the obvious 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 original bill, by an amendment there was added to section 3 of the act the following: "All work in the department which has heretofore been in the charge of the state highway

expenses.

1 Reported in full in the New York Supplement; reported as a memorandum decision without opin

conform to this policy and intent. In such case the later provision is nugatory and will be disregarded. Article 4, § 20, of the Constitution; Endlich on Interpretation of Stat. § 183; State v. Bates, 96 Minn. 110, 104 N. W. 709, 113 Am. St. Rep. 612; McCormick

(Or.

Roads cannot be constructed without comforcement of any of its other provisions. pensation.

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 enof the Constitution, which provides that: "Every act shall embrace but one subject, and matters properly connected therewith, which subjects shall be embraced in the title. And if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." Clemmensen v. Peterson, 35 Or. 48, 49, 56 Pac. 1015; Spaulding Log. Co. v. Independence I. Co., 42 Or. 397, 71 Pac. 132; Simon v. Northup, 27 Or. 505, 40 Pac. 560, 30 L. R. A. 171.

Therefore the latter part of section 3 does not relieve the state engineer of the duty thrust upon him by the two acts, nor make the chief deputy an independent official. On the other hand, it would seem that, after two

gineer to furnish the required certificate and It being the statutory duty of the state eninformation, the plaintiffs are entitled to the relief prayed for; otherwise they might be remediless and justice be defeated.

It follows that the demurrer to the writ must be overruled, and it is so ordered.

EAKIN, J., did not sit.

On Petition for Rehearing. years' experience, it was deemed wise by gests a further ruling as to the working BEAN, J. The petition for rehearing sugthe legislative branch of the state govern- force of chapter 339, Laws of 1913, as amendment to so change the modus operandi relating to the highway engineer as to provide ed by chapter 337, Laws of 1915. The "state that the work of that officer should be sub-engineer" being substituted for the "state ject to the supervision of another skilled civil engineer; the object being the centralizing of the responsibilities as recommended in the message of the governor appertaining to that subject, in order to secure a higher state of efficiency and promote economy. That the chief deputy is subordinate to the

state engineer is indicated by the words "chief deputy state engineer," as well as by the provisions of sections 1 and 2 of the later act. A "deputy" is defined in 13 Cyc.

1043, as follows:

"One appointed as the substitute of another, and empowered to act for him in his behalf or on his bel.alf; one who is appointed, designated or deputed to act for another; one who occupieth in right of another, and for him regularly his superior will answer; one authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter; one who by appointment exercises an office in another's right; one who exercises an office, etc., in another's right having no interest therein, but 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, p. 2008.

[9] The statute referred to imposes upon the state engineer the duties enumerated in chapter 339, Laws of 1913. That official is responsible to the state and parties coming within the terms of the act. The chief deputy state engineer is answerable to his superior. "No man can serve two masters." Any other arrangement in the premises would naturally lead to chaos and produce confusion. The state engineer cannot be relieved of the trust reposed in him by the statute, except by the expressed will of the lawmakers, and the order of the highway commission of August 27, 1915, did not have that effect. Legislative power cannot be delegated to a commission. Const. art. 4, § 1; Sutherland on Stat. Const. (2d Ed.) § 93; State v. Orange, 60 N. J. Law, 111, 36 Atl. 707.

[10] The determination of whether or not a road is completed, and the amount due for

highway engineer" by the later act, there can be no question but that all the duties coming within the purview of the statute would devolve upon the state engineer, and vides the assistance of a deputy for that of for this reason the enactment of 1915 proficial. It also subjects the state engineer to the duty of responding to the requisitions of the highway commission in the matter of the construction of state roads. These additionsubmitted by the petition, in so far as they al explanations cover all the interrogatories pertain to the issues raised in this proceeding.

involved in the litigation, so as to authorize
Other points are ably argued, but are not
this court to adjudicate the same.
explanation, a rehearing will be denied.
With this

EAKIN, J., took no part in the consideration of this case.

EVANHOFF v. STATE INDUSTRIAL ACC.
COMMISSION et al.

(Supreme Court of Oregon. Dec. 28, 1915.)
1. INJUNCTION 28-WORKMEN'S COMPEN-
SATION ACT-TRIAL BY JURY.

The enforcement of the Workmen's Compensation Act (Laws 1913, p. 188), will not be enjoined at the suit of an injured servant on the mission and the state treasurer threatened to ground that the State Industrial Accident Comdeprive him of the right to a trial by jury, and wrongfully claimed power to determine the legations as to the unconstitutionality of the act amount he might recover, since, even if his alwere well taken, he could test their authority by bringing his action either at common law, or under the Employers' Liability Act. Cent. Dig. §§ 62-65; Dec. Dig. 28.] [Ed. Note. For other cases, see Injunction, 2. STATES 1681⁄2 PARTIES SUIT BY TAXPAYER-PAYMENT OF SALARIES-INDUSTRIAL ACCIDENT COMMISSION.

The only ground permitting the suit was that, by the unlawful expenditure of moneys apthat plaintiff was a taxpayer of the state, and propriated for salaries and claims under the pro

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

visions of the act, his financial burdens might | 7. MASTER AND SERVANT 872, New, vol.
be increased.

[Ed. Note.-For other cases, see States, Dec.

Dig. 1682.]

8. STATUTES

114-TITLE OF ACT-CONSTI-

WORKMEN'S COM-

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-

PROVISIONS-INDUSTRIAL ACCIDENT BOARD.

Under Const. art. 7, § 1, as amended in

1911, the Legislature was authorized to con-

fer judicial powers upon the State Industrial

Accident Commission created by. Workmen's

Compensation Law, since under the amendment

the Legislature or the people may confer judicial

powers upon any tribunal selected, so long as

the different departments of government are not

made to encroach on each other.

[Ed. Note.-For other cases, see Constitution-

al Law, Cent. Dig. §§ 140, 143-147; Dec. Dig.

80.]

6. CONSTITUTIONAL LAW 313, 328-RIGHT
TO JUSTICE-DUE PROCESS OF LAW-WORK-

MEN'S COMPENSATION ACT-TRIAL BY JURY.
Workmen's Compensation Act, providing a
system of actual voluntary insurance for injured
workmen and creating a State Industrial Acci-
dent Commission to administer its provisions,
does not violate Const. art. 1, § 10, declaring
that no court shall be in secret, but justice shall
be administered openly, and that every man shall
have remedy by due course of law for injury to
his person, etc., nor Const. U. S. Amend. 14,
1, declaring that no one shall be deprived of

property without due process of law, on the the-

ory that the act attempts to establish a court

for the trial of causes without a jury, and to

compel employers and employés to adjust their

grievances without their consent, since the act

leaves both the employer and the employé free

to accept or reject its provisions.

[Ed. Note.-For other cases, see Constitution-

al Law, Cent. Dig. §§ 933, 950-963; Dec. Dig.
313, 328.]

READING

In Banc. Appeal from Circuit Court, Mar-
ion County; William Galloway, Judge.

Suit in equity by George Evanhoff against
the State Industrial Accident Commission
and others, to enjoin the enforcement of the
Workmen's Compensation Act. Decree for
defendants, and plaintiff appeals. Affirmed.
This is a suit in equity to enjoin the en-
forcement of chapter 112, Laws of 1913, gen-
erally known as the Workmen's Compensa-
tion Act. In the complaint it is alleged that
plaintiff is a subject of the king of Bulgaria,
but is a resident freeholder and taxpayer of
the state of Oregon. The complaint then al-
leges that he has a good cause of action
against the Bridal Veil Lumber Company
for damages for personal injuries sustained
by him while in its employ, and sets forth in
detail the facts constituting such cause of
action with all the particularity which could
be required in an action for damages against

said corporation, averring that he has thereby been damaged in the sum of $15,000. It is further alleged:

"The State Industrial Accident Commission wrongfully professes to have power and authority to deprive plaintiff of his right of action or to a civil trial in the said cause, and wrongfully professes to have power and authority, and is threatening to and will, unless restrained by this court, deprive this plaintiff of his right of trial of said cause of action before a jury or before any of the established circuit courts of the state of Oregon, more especially before the circuit court of the state of Oregon otherwise having jurisdiction thereof, and wrongfully professes to have power and authority to determine the amount which plaintiff shall receive in payment by reason of said injuries, and to cause plaintiff to accept from said State Industrial Accident Commission a sum which it may see fit to award plaintiff in full and complete discharge and satisfaction of all of his claims arising from the matters herein alleged, and that the said State Industrial Accident Commission bases its claim upon and in virtue of an act, to wit, House Bill No. 27, entitled, 'An act creating the State Industrial Accident Commission and providing an industrial accident fund, making an appropriation for such fund and providing for the administration of the terms of this act, providing for the collection and disbursement of funds for the benefit, compensation and care of workmen, prescribing the duties of employers and workmen subject to this act, and providing penalties for a violation of the terms of this act, and abolishing in certain cases the defenses of assumption of risk, contributory negligence and the negligence of a fellow servant in actions for personal injury and death,' filed in the oflice of the secretary of state of the state of Oregon, February 25, 1913, and acts amendatory thereto and thereof. Thos. B. Kay, as state treasurer of the state of Oregon, wrongfully and without right professes and claims to be empowered by the said act to pay, and unless restrained by an order of this court will pay, to each of the said commissioners constituting the State Industrial Accident Commission the sum of $3,600 a year each as salary for their acts as such, and will make such pay-ishes certain defenses in certain cases; (i) atments out of a fund purported to be created by and referred to in said act; and, further, the said state treasurer claims and asserts power and authority to pay, and unless restrained by order of this court will pay, out of such funds divers sums of money for all and every of the various purposes set forth in said act, and wrongfully and without right asserts power and authority to pay, and unless restrained by order of this court, will pay, out of said fund such sums of money as the commission above named may see fit to allow to various and numerous injured workingmen, and by such payment the said state treasurer will divert large sums of money collected as taxes to the payment of the various sums designated in said act.

* 准

"The acts of the defendants State Industrial Accident Commission and Thos. B. Kay, state treasurer of the state of Oregon, in enforcing the said legislative enactment known as and called the Workmen's Compensation Act of Oregon, are, and each of them is, wrongful and unlawful in this: That the said act (Session Laws of Oregon 1913, page 188), filed in the office of the Secretary of State, February 25, 1913, commonly known as and called the Oregon Workmen's Compensation Act, is unconstitutional and void and conflicts with the provisions of the Constitution of the state of Oregon, as well as the Constitution of the United States in the following particulars, to wit: (1) It vests judicial powers and functions in an administrative and executive board, to wit, the Oregon Industrial Accident Commission, and thereby attempts to combine judicial and executive

functions in violation of section 1, article 3, of the Constitution of Oregon. (2) It arbitrarily fixes a limit on sums to be allowed for personal injuries, and thereby passes judgment by legis lative enactment on the amount which any injured person falling within its purview may recover, and is violative of section 1, art. 3, of the Constitution of Oregon in that the Legislature, by fixing such judgments, attempts to and did exercise judicial powers. (3) It is not within the police powers of the state. (4) It provides a system of awards based upon sociological reasons, and disregards the individual and personal right of an injured employé to recover such injuries, and thereby violates section 10, art. 1, and section 17, art. 1, of the Oregon Constitution. (5) It imposes taxes which are general throughout the state. Such act has not been ratified by the voters of the state at a general election, as provided in section 1a, art. 9, of the Constitution of Oregon as amended by laws of 1911, at page 9, and therefore is not in force. (6) It violates subdivision 3, § 23, art. 4, in this: Section 32 of the said act attempts to provide and regulate a special practice in courts of justice. It further violates subdivision 10 of section 23, art. 4, of the Constitution of the state of Oregon, in that it purports to and provides for the assessment and collection of taxes for state purposes, and is a special act on both the subjects herein specified. (7) It violates the Constitution of Oregon at section 7 of article 9, in this: It creates public offices and makes appropriations for the, salaries of the officers therein designated and other current expenses of the state, and embraces subjects other than those relating to the salaries of such oflicers and the current expenses of the state. In addition to such subjects, it purports to and does embrace acts on the following subjects: (a) Creating the State Industrial Accident Commission; (b) providing an industrial accident fund; (c) making an appropriation for such fund; (d) providing for the administration of the terms of the act; (e) providing for the collection and disbursement of funds for the benefit, compensation, and care of workmen; (f) prescribes the duties of employers and workmen subject to the act; (g) provides penalties for violations of the terms of the act; (h) aboltempts to regulate rights where injuries to a laboring man are caused by third persons; (j) provides a system of appeals and regulates practice thereon. (8) It vests judicial power in the State Industrial Accident Commission without providing for a jury trial before it, and attempts to make its decisions binding unless appealed from, and thereby deprives injured laborers of their right of jury trial in civil cases, and is violative of section 17, art. 1, section la, art. 1, and section 10, art. 3, of the Constitu tion of Oregon. (9) It provides for the determination of questions involving the extent of injuries and the amount to be recovered by injured workingmen, and vests the determination of such questions in the said Oregon Industrial Accident Commission, and does not require notice to be given to the injured workingmen of the time or place of hearing, nor require process to procure the attendance of witnesses, nor does it require that a time and opportunity be given to such injured workmen to be heard in respect to their rights, and therein it does not provide due process of law to persons falling within its purview, and is violative of section 10, art. 1, of the Constitution of the state of Oregon. (10) It attempts to compel workmen to make an election in advance of injuries receiv ed between the awards under the act and the constitutional right to proceed in a civil jury case guaranteed by section 10, art. 1, and section 17, art. 1, of the Constitution of Oregon. (11) At sections 2 and 3 of the Workmen's Compensation Act, it provides for the appointment and removal of commissioners. It does not

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