Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

provide for their election and recall, and the said act vests judicial power in said commissioners and is violative of section 18, art. 2, of the Constitution of Oregon. (12) At section 20 of said act, it attempts to make annual appropriations out of any moneys in the state treasury not otherwise appropriated, and makes such appropriations for a period of time extending beyond the life of the Legislative Assembly which passed the act, and thereby violates sections 1, 2, and 3, article 9, of the Constitution of Oregon. (13) It violates sections 7, 8 and 9, article 11, of the Constitution of Oregon in this: That at section 20 of the said act an appropriation is made out of any moneys in the general fund in the state treasury not other wise appropriated, and there is also appropriated annually out of any moneys in the state treasury not otherwise appropriated a sum equal to one-seventh of the total sum, which shall be received by the state treasurer under provisions of section 19 of said act, and by such enactments the state of Oregon undertakes to and does assume to pay obligations and losses occasioned in the private business of persons, corporations, and associations, and the state attempts to and does lend its credit to such private enterprises and corporations. (14) That the said act is violative of section 20, art. 4, of the Constitution of Oregon in this: It embraces subjects not expressed in the title and not germane thereto. At section 12 it attempts to regulate rights of an injured workman injured by a third person, and at the same section it purports to provide an exclusive remedy in lieu of all claims against an employer, and thereby pro hibits one spouse from recovering for loss of consortium by injury to the other caused through the fault of the master. (15) That the said act is discriminatory as between laborers affected by its provisions in this: That it does not relate to laborers for the state, any counties, or any municipalities within the state, who may be engaged in similar employments, as laborers working for private corporations, and it thereby denies to laborers for private persons, corporations, associations, and enterprises the equal protection of the law, which laborers for the state, or any of the counties within the state, or any municipalities within the state, are guaranteed and retained.

surate with the injuries sustained. (4) It denies to injured workmen the equal protection of the law, and violates Amendment 14, § 1, of the Constitution of the United States in this: That within the class of workmen affected by its provisions, it awards equal sums for similar injuries to different workmen, regardless of the question of fault, and thereby takes from a workman injured through the fault of his master the sum which he should recover, and gives to a workman suffering like injuries an equal sum, although he is hurt through his own fault; also it denies the equal protection of the laws to workmen of the same class, grade, and kind who are working for private persons, corporations, firms, or enterprises, and takes from them the privileges of jury trial and immunity from the operation of said law which are accorded to laborers for the state of Oregon, or any of the several counties within the state of Oregon, or any municipalities within the state of Oregon, in this: That laborers engaged in like work for the state of Oregon, or any municipality or county therein, as that in which laborers for private corporations, associations, individuals, or enterprises are engaged, are not embraced within its terms; that in each particular specified herein wherein the said act violates the Constitution of the United States, it infringes upon the right of this plaintiff to recover for the injuries hereinbefore set forth."

The plaintiff declares that the act under which defendants claim authority was not properly passed, and several pages of the journals of the two houses of the Legislature are pleaded, but are here omitted, the substance of the alleged informalities being that the original bill as introduced was amended in both houses in several particulars, and that the complete bill as finally amended was not read three times, as required by section 19, art. 4, of the Constitution. There was a general demurrer to the complaint, which being sustained, the plaintiff appeals.

Isham N. Smith, of Portland (Logan & Smith, of Portland, on the brief), for appellant.

Geo. M. Brown, Atty. Gen., and J. O. Bailey, Asst. Atty. Gen., for respondents.

MCBRIDE, J. (after stating the facts as above). [1, 2] The complaint and the able and ingenious brief of counsel for plaintiff point out 19 alleged specific violations of the Constitution of this state, all committed within the compass of a single act, and then, piling Pelion on Ossa, specifies four alleged violations of the Constitution of the United States, perpetrated by means of the same statute. It would be, indeed, a reflection upon republican government if a bill which is so permeat

"The said act is violative of the Constitution of the United States and of the state of Oregon in the following particulars: (1) It violates section 4, art. 4, of the Constitution of the United States in this: That it deprives injured workingmen within its purview of a republican form of government by vesting judicial and executive powers in the same officers. (2) It is violative of amendment 7 and amendment 14, § 1, of the Constitution of the United States, and of section 10, art. 1, and section 17, art. 1, of the Constitution of Oregon, in that it deprives a workman, injured through the fault of his master, of the right to trial by jury, and also denies such workman of the right to recover individually for the individual wrongs committed against him, and denies the right to recover a sum commensurate with the injuries sustained. (3) It deprives injured workmen of property ed with the rottenness of unconstitutionality without process of law in violation of Amend- could pass both houses of the Legislature ment 14, § 1, of the Constitution of the United with only three dissenting votes, and thereStates in this: It does not require a trial be- after be indorsed by the people upon a referfore the Oregon Industrial Accident .Commission, nor does it require notice of the time or endum by a majority of more than two to place of hearing to be given to such workmen, one. It may be premised that, assuming evnor afford him an opportunity to appear before ery allegation as to the unconstitutionality such board in person or by counsel, nor does it of the act is well taken, plaintiff has shown require the protection of witnesses before such board for or against the claim of such injured but one reason why he should be permitted to workmen, but it provides for a summary proce- bring this suit, and that is because he is a dure in determining the extent and character of taxpayer of the state, and that by the unlawinjuries suffered by such workmen, as well as de-ful expenditure of the moneys appropriated termining the amount to be recovered within

the limits prescribed, and limits the amount of by the state under the provisions of the act

be increased. State ex rel. v. Metschan, 32 Or. 372, 46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692.

The allegations that the defendants threaten to deprive plaintiff of the right of trial by jury and wrongfully claim to have power to determine the amount that plaintiff shall recover, etc., have no force whatever. If plaintiff has a right to sue in the courts, there is manifestly no method whereby the defendants can prevent his so doing. If they have no right to determine his case for any reason, there is no law which compels him to present his claim to them or to abide their award if made against his remonstrance. He can test their authority by ignoring them and bringing his action either at common law or under the Employers' Liability Act as the fact may warrant. The sufficiency of the facts in lation to the injury to permit a recovery under either aspect, not being relevant to the matter in controversy, will not here be dis

cussed.

lic policy and humanity were never contemplated by the framers of the Constitution.

"It is sufficient if the general subject of the act is contained in the title and is a fair index to of the act are germane to such subject and do the legislation proposed, and if all the provisions not relate to matters wholly foreign thereto." In re Willow Creek, 74 Or. 592, 615, 144 Pac. 505.

[4] It is also urged in the objection now being considered, and elsewhere in the able brief of plaintiff, that the act in question attempts to confer judicial and legislative functions upon the Industrial Accident Commission, and is therefore in contravention of section 1, art. 3, of the Constitution, which is as follows:

"The powers of the government shall be divided into three separate departments-the legislative, the executive, including the adminisre-trative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided."

[3] Under the first point made in the brief are included several objections to the title of the act, which is as follows:

This identical question is passed upon adversely to plaintiff's contention in Re Willow Creek, supra, at pages 610, 611, and that opinion and the authorities there cited are so con

clusive as to render further discussion of the subject unnecessary.

[5] Neither is it necessary to discuss the question as to whether the Legislature had

"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 work-power to confer judicial functions upon the men, prescribing the duties of employers and Commission. Section 9, art. 7, of the Constiworkmen subject to this act, and providing tution before amendment provided: 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."

Concerning this objection counsel in their brief observe:

"It is plain that the act provides a system of jurisprudence for the administration of all questions relative to injuries received by workmen in the course of their employment, save those specified in the act itself. It also creates a board; a fund, and makes appropriations therefrom; provides: (a) For its administration; (b) the collection and disbursement of its funds; (c) the duties of employers and employés; (d) penalties for its violation; and (e) abolishes certain defenses in such cases."

In our view every matter referred to in the title is germane to the purpose of the act. Its object is to provide a system of actual voluntary insurance for injured workmen. As a necessary part of the system, a fund is to be raised whereof the employer shall contribute the larger part, the employé a small part, and the state a small portion. It would be absurd and wholly outside the intent of the Constitution to require that there should be one act to create the Commission and define its duties, another to prescribe the amount the employé should contribute, a third to fix the amount that the state should contribute, and a fourth to appropriate the money thus defined to be the state's contribution. Such red-tape methods of accomplishing an object justified by the highest considerations of pub

tion not vested by this Constitution, or by laws "All judicial power, authority, and jurisdicconsistent therewith, exclusively in some other court, shall belong to the circuit courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals."

As originally adopted section 1, art. 7, of the Constitution read as follows:

ed in a supreme court, circuit courts, and county "The judicial power of the state shall be vestcourts, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this Constitution. Justices of the peace may also be invested with limited judicial powers, and municipal courts may be created to administer the regulations of incorporated towns and cities."

In 1911 this section was amended so as to read:

ed in one Supreme Court and in such other courts "The judicial power of the state shall be vestas may from time to time be created by law. The judges of the Supreme and other courts shall be elected by the legal voters of the state years, and shall receive such compensation as or of their respective districts for a term of six may be provided by law, which compensation shall not be diminished during the term for which they are elected." Laws 1911, p. 7.

It would appear that the power of the Legislature or of the people to confer judicial powers upon any tribunal which it or they may select is, by the force of this amendment, practically an unlimited one so long as the different functions of government, executive, legislative, and judicial, are not so blended as to contravene section 1, art. 3, of the Consti

tution, which, as shown in the case last cit- Just what provision of the Constitution is ed, is not the case here.

[6] It is next contended that the act is void in that it violates section 10, art. 1, of the Constitution of this state, which is as follows:

violated we are not informed. It is a general principle that a person may, at any time, waive his right to bring an action upon a money demand unless there is a constitutional or statutory provision prohibiting it, or it is clearly against public policy to permit him to do so. So it has been often held that a contract whereby an employer attempts to stipulate against the consequences of his own negligence is void because contrary to public policy; but what is or is not public policy is, in its last analysis, a legislative question, and we have yet to find an instance where a statute has been declared void because in the opinion of the court it would have been better policy to have left it unenacted. This view of the act disposes of many of the constitutional questions raised by counsel. The state proposes to employers and employés an accident and life insurance scheme, and of

"No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." And that also it is in violation of section 1 of the Fourteenth Amendment to the federal Constitution, as it deprives a person of property without due process of law. Neither of these positions is well taken. Plaintiff's argument proceeds upon the theory that the act establishing the Industrial Accident Commission attempts to establish a court for the trial of causes without a jury, which it does not, and to compel workmen and employers to adjust their grievances without their consent, which is contrary to the whole spirit and in-fers it to them in lieu of litigation. It does tent of the act. As before noted, the act leaves the employer free to accept the provisions of the act or to reject them as he may see fit. If he gives notice that he rejects them, he is left to protect himself from actions for personal injury by litigation in the courts. It is true that the act has swept away certain defenses heretofore available; but, as this could have been done in any case, he has no legal reason to complain. If he sees fit not to avail himself of the provisions of the act, he may still protect himself by giving notice that he rejects its provisions. It is not compulsory, and the arguments that apply with greater or less force to compulsory acts are here inapplicable. The state says to the employer and employé alike:

"We present to you a plan of accident insurance which you may accept or reject at your own pleasure. If you accept, you must be bound by its terms and limitations; if you reject it, the courts are open to you with every constitutional remedy intact. Take your choice between our plan and such remedies as the statute gives you."

Discussing certain features of the Iowa Compensation Act, limiting the amount to be allowed for certain injuries, Mr. Justice McPherson, in the case of Hawkins v. Bleakley (D. C.) 220 Fed. 378, 381, says:

"The first twenty-two sections of this lengthy statute fix the liability of the employer and the rights of the employé. A scale of compensation is fixed and made certain. Each party can come within the statute or remain outside of the statute. Each party has his election. Many of the states for many years have had statutes fixing the liability with precision in cases of death, and in no instance has any court held such statute invalid. And why a statute cannot fix with certainty the damages to be allowed in case of the loss of an arm, leg, eye, or other injury is not perceived, and counsel fail to state any legal or constitutional objection thereto."

[7] It is further contended that the act is unconstitutional because it requires the employé to elect, at the time of his employment and in advance of all injuries, whether or

not compel them to become participants in it or to contribute to it, but if they voluntarily choose to do so, they waive any other remedy, because the statute provides as a part of the scheme that they must do so; and, as before observed, by permission of the statute a party may waive or limit the quantum of his compensation for any possible prospective injury. The noncompulsory feature of the act may be said to eliminate most of the objections urged upon constitutional grounds.

[8] One objection, however, which is urged with much plausibility is that the act violates section 7, art. 9, of the Constitution, which is as follows:

"Laws making appropriations for the salaries of public officers and other current expenses of the state shall contain provisions upon no other subject."

The evident purpose of this provision was to prevent matters foreign to the general purpose of appropriation bills being attached to them as riders, thereby taking advantage of the necessity of the state for money to defray its current expenses and to pay its officers to pass measures that perhaps would otherwise have been defeated. The instant act is not primarily an act to appropriate money to pay salaries or other current expenses. It is not an appropriation bill in the sense that bills providing for general current expenses or salaries of the constitutional officers of the state are such. We have been cited to no case, in this state or elsewhere, where a provision similar to the one at bar has been construed in accordance with counsel's contention, and in this state contemporary legislative construction has been the other way. Thus, at the first regular session of the Legislature held after the adoption of the Constitution, we find an act, entitled "An act for the appointment of a librarian and defining his duties" (Laws 1860, p. 64), was passed, creating the office of state librarian,

decision that the construction was erroneous,
the argument ab inconvenienti is sometimes al-
Const. Lim. (7th Ed.) p. 102.
lowed to have very great weight." Cooley,

learned jurist exist here.
[9] All the considerations suggested by the
We sum up the
situation: (1) The construction to be placed
upon the clause in question is not clear; (2)
the construction above indicated has been
followed and acquiesced in by the Legislature
and the people from the adoption of the Con-
stitution until the present time; (3) that
construction was adopted by legislators who
had participated in the framing of the Con-
stitution and who may fairly be presumed to
have known the intent with which it was
adopted; (4) to now hold that the acts so
passed are void would be attended with such
disorganization of public business and de-
struction of private and pecuniary rights
which have grown up with faith in the valid-
ity of the acts which would be affected by a
decision favorable to the contention of plain-
tiff as would create widespread confusion

ing which he should keep the library open, and appropriating $400 annually for the purchase of books and $150 annually for his salary. The president of the Senate, the Speaker of the House, and many members of both houses had been members of the constitutional convention. From that time to the present it is safe to say that there has not been a session of the Legislature where similar acts have not been passed. Some of them are: The Food and Dairy Commission Act; the Immigration Commission Act, passed in 1885; the Fish Commission Act, in 1887; the State Board of Horticulture Act, in 1895; the Bureau of Labor Statistics Act, in 1903; the act creating the office of state engineer, and providing a water code, in 1905; the Bank Examiner Act, the Railroad Commission Act, and the Sheep Inspector Act, in 1907; the act creating the office of insurance commissioner and a fund known as the "insurance fund," and the act creating our present water board, in 1909; the act creating the state forestry board, and the act providing for the construc- and disaster. Our Irrigation Code, Minimum tion of a branch insane asylum in Eastern Oregon, in 1911; the act providing for a state industrial school for girls; an act creating an Industrial Welfare Commission; an act creating the state highway commission; and an act creating the state live stock sanitary board, in 1913. Most of these acts fixed the salary or compensation of the officers designated to carry out their purposes and appropriated the money necessary to pay such salaries and to accomplish the general objects for which the law was enacted. An examination of the late session laws of other states having identical or similar provisions in their Constitutions shows that the same legislative practice has been pursued in these jurisdictions, so that it may be said practically the uniform contemporaneous construction of this section of the Constitution is that it does not prohibit the Legislature from passing an act designed to effect a particular purpose and in the same act to provide the funds necessary to accomplish that purpose. While such a construction will not be permitted to overturn and render nuga-bill as amended was not read by sections on tory a clear provision of the Constitution, in cases where the meaning of a clause in the instrument is capable of two interpretations, it is entitled to great weight. It was remarked by Judge Cooley:

Wage Act, Public Utilities Act, and much of the legislation heretofore alluded to would be thrown into hopeless disarray. Under the act now being considered widows, orphans, and helpless cripples who have taken advantage of its provisions would be deprived, in many instances, of their means of subsistence, and be thrown upon the cold charities of the world. These consequences are too momentous to be invoked by a new construction of a doubtful provision of the Constitu; tion. The rule is well settled that a statute will not be held unconstitutional where a reasonable doubt exists as to its invalidity. Cline v. Greenwood, 10 Or. 230; Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171; State v. Cochran, 55 Or. 157, 180, 104 Pac. 419, 105 Pac. 884; Libby v. Olcott, 66 Or. 124, 134 Pac. 13; In re Willow Creek, supra.

[10] It is further urged that the act is unconstitutional because the original bill was amended in many particulars during its progress through the Legislature, and the whole

three several days, as required by section 19, art. 4, of the Constitution. Such has never been the practice in this state, and what little authority can be found on the subject is contrary to plaintiff's contention. People ex rel. v. Wallace, 70 Ill. 680. In that case the court says:

the act was not constitutionally adopted, because "It is also objected that the tenth section of it was engrafted as an amendment whilst the bill was being considered, and was not read on three several days in the house adopting it as the requirement does not apply to an amendan amendment. We are clearly of opinion that ment, and the objection cannot prevail."

"But where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the Constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a Other objections are urged, but they are strong presumption exists that the construction simply variations of those already considerrightly interprets the intention. And where ed. Upon the whole case we are of the opinthis has been given by officers in the discharge of their official duty, and rights have accrued in ion that the act violates no prescription of reliance upon it, which would be divested by a the Constitution of this state or of the Unit

ed States, and that it was properly passed and is in every respect a valid law. While experience may suggest from time to time changes and amendments, they are in line with twentieth century progress. Before its enactment one workman out of three received a large compensation for his injuries by an action at law, while the remaining two were defeated and got nothing. Now every workman accepting its provisions receives some compensation if injured; and, taken as a whole, it will be found that more money in the way of compensation is received by the whole body of injured workmen than by the inadequate remedies afforded in the courts. It has been a boon to the employers, the employed, and the community, which latter could formerly only offer to the injured laborer the charity of the almshouse instead of that just compensation which he may now receive without the humiliation of pauperism or the loss of self-respect.

The decree of the circuit court is affirmed.

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

[blocks in formation]

Where, in an action to recover possession of a bond under L. O. L. § 283 et seq., regulating actions of claim and delivery, plaintiff's reply showed that the bond had been delivered ation, who held it in trust for defendant subby defendant to a third person without considerject to his control, and with knowledge of his intent to defraud plaintiff, defendant's motion for nonsuit made at the close of plaintiff's eviconsidera-dence, which evidence did not allude to the pretended assignment and delivery of the bond, was properly overruled, since an action to recover possession of personal property lies where defendant has constructive possession as well as in cases of actual possession.

I

BURNETT, J. (concurring specially). cannot agree that continued violations shall be dignified into contemporaneous construction of so plain a mandate as section 7, art. 9, of the state Constitution that:

"Laws making appropriations for the salaries of public officers and other current expenses of the state shall contain provisions on no other subject."

I concur in the result of the opinion of Mr. Justice MCBRIDE, however, for the reason that, with the whole question before them on the referendum of the act in question, the people approved it at the election of November, 1913, by a vote of 67,814 to 28,608.

[blocks in formation]

In Banc. Appeal from Circuit Court, Marion County; William Galloway, Judge.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 69-82; Dec. Dig.

10.1

[blocks in formation]

4. REPLEVIN 12-CLAIM AND DELIVERY— MONEY JUDGMENT-SET-OFF.

For the same reason, defendant was not entitled to have such debts due him deducted from a money judgment in plaintiff's favor in such action, where possession of the property could not be delivered.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 98-110; Dec. Dig. 12.] 5. APPEAL AND ERROR 238-REVIEW-ERROR IN JUDGMENT MOTION IN LOWER COURT.

Action by Mark R. Upton against the State
Industrial Accident Commission of Oregon.
From an adverse order, plaintiff appeals. Af-bond demanded had been sold, and a new one is-
Where it appeared in such action that the

firmed.

The complaint in this case is similar in all respects to that in the case of Evanhoff v. State Industrial Accident Commission, 154 Pac. 106, recently decided by this court and not yet officially reported. A demurrer to the complaint having been sustained, plaintiff appeals.

Isham N. Smith, of Portland, for appellant. Geo. M. Brown, Atty. Gen., and J. O. Bailey, Asst. Atty. Gen., for respondent.

MCBRIDE, J. The reasoning of the opinion in Evanhoff v. State Industrial Accident Commission, 154 Pac. 106, applies to this case in every particular, and upon the authority of that case the judgment of the circuit court is affirmed.

sued in lieu, and, the canceled bond having been received in evidence, its number and series were entered in the judgment for plaintiff, and defendant did not move the court below to correct the

particularity of the judgment in this respect, any error committed therein is unavailing on appeal, though a motion to set aside the verdict and judgment and to grant a new trial was interposed, since the proper way to correct an error in a judgment in replevin is by motion therefor in the court below.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1343, 1345, 1357, 1358, 1560, 1364, 1366, 1382, 1386-1410; Dec. Dig. 238.]

Department 1. Appeal from Circuit Court, EAKIN, J., took no part in the consideration Wasco County; W. L. Bradshaw, Judge. Action by W. P. Reed and J. M. Reed

of this case.

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

« ΠροηγούμενηΣυνέχεια »