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"That there were present at said meeting 17 resident taxpayers of said road district, a list of whom is hereunto attached and made a part of the minutes of the meeting.

unto annexed that said petition is duly signed | in Polk county, Ore., on the 29th day of Noby three freeholders of the above-named 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 therefore ordered that the said petition be, and the same is hereby, approved, and that a meeting of the legal voters of said district be called for the purpose of levying a special road tax, at Lincoln Schoolhouse in said district, on Saturday, the 29th day of November, 1919, at the hour of 10 o'clock a. m. of said day, and that due notice of said meeting be given as required by law.

"And it further appearing that R. C. Shepard is a competent person for the posting of the notices of said meeting in said road district, it is therefore ordered that said R. C. Shepard be, and he is hereby, authorized, ordered, and directed to post three notices in conspicuous places in said road district.

"And it is further ordered that John W. Orr, sheriff of Polk county, be, and he is hereby, directed to post one copy of such notice on the bulletin board at the Polk county courthouse.

"A. B. Robinson, Judge. "T. J. Graves, Commissioner." "Thereafter, A. B. Robinson, county judge of Polk county, Ore., issued the following notice:

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The complaint then recites:

"A copy of which notice was posted on the bulletin board at the courthouse in Dallas, Ore., 10 days prior to the 29th day of November, 1919, to wit, on the 12th day of November, 1919, by John W. Orr, sheriff, and a copy of 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 Lincoln Store Building front, and on Four Corners post, and an affidavit was filed with the county clerk by R. C. Shepard, alleging that each of said notices was posted in a conspicuous place within road district No. 4, and an affidavit was filed by E. A. Koen, alleging that he was publisher and printer of the Polk Couny Observer, a weekly and semiweekly newspaper, and that a copy of said notice was published for once a week for three successive and consecutive weeks, commencing with the issue of said newspaper dated and published November 13, 1919, and ending with the issue dated and published November 27, 1919; that on or about November 30, 1919, there was filed in the office of the county clerk minutes of taxpayers' meeting as follows, to wit:

"Minutes of Taxpayers' Meeting.

"Be it remembered that a meeting of the resident taxpayers of road district No. 4, in the county of Polk, state of Oregon, was held at the Lincoln Schoolhouse, in road district No. 4,

"At the time and place above mentioned the said meeting was organized by the election of R. C. Shepard as chairman and W. Frank Crawford as secretary of the meeting, who thereafter performed the duties of their respective offices.

"The chairman then stated that the meeting was called for the purpose of voting an additional tax for road purposes, and he then read the notice for the call of the meeting, and the proof of posting same in three public places in said district, and on the bulletin board at the county courthouse, in the city of Dallas, Polk county, Ore., and he also read a copy of said notice published in the Polk County Observer. together with the proof of publishing same. It was moved, and seconded, that the resident taxpayers present proceed by ballot to vote a tax of $4,000.00 to be levied on all the taxable property in this road district as an additional tax to improve the roads of this district. The chairman then stated that if this tax is levied it will be an increase of more than 6 per cent. over the special tax of the previous year. The majority of the resident taxpayers present voted in favor of said tax, and said vote was as follows, to wit: Ayes, 16, Nays, 0.

"The chairman declared the said levy of additional tax duly made by a majority vote of the taxpayers present at said meeting, and the same was so levied.

"No further business appearing, the meeting, on motion, was adjourned.

"Approved Saturday, the 29th day of November, 1919. R. C. Shepard, Chairman.

"W. Frank Crawford, Secretary. "Moved by W. F. Crawford tax be $3,000. "Amended by Chas. Scott to be $4,000. Seventeen voted for amendment [names follow]."

The court sustained demurrer to the complaint. The plaintiff's refusing to plead further, a nunc pro tunc decree was entered, dismissing the complaint as of the 15th day of November, 1920. From that decree the plaintiffs appeal to this court.

Plaintiffs assert in their brief that the tax is void because sections 12, 13, 14, and 15, chapter 299, General Laws of 1917 (sections 4588, 4591, Or. L.), are unconstitutional, as failing to comply with article 4, section 20, Constitution, providing that "every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title;" second, that the

tax is void because of the failure of the peti tion or notice to show an itemized budget; further, for the reason that the total levy was expressed in dollars and cents, and not made in mills; again, because of the indefiniteness of the statute relating to the publication of notice; and, finally, because of

(209 P.)

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

George S. Shepherd, of Portland, for appellants.

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A. (N. S.) 362.

[1] It is a well-established rule that before the court can declare a law unconstitutional on the grounds averred, the conflict must be palpably plain, and all reasonable doubt must be resolved in favor of the validity of the law. State v. Shaw, 22 Or. 287, 29 Pac. 1028.

BROWN, J. (after stating the facts as above). Article 4, section 20, of the Constitution, providing that "every act shall embrace 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 Constitution does not require the "matters properly expressed in the title, before the court many times for exposition, in the title. It was said in David v. Portconnected" 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. 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 need not particularize. provides for an election to locate the county seat, and, among other things, that

"The present location, Umatilla landing, shall be one candidate; and Upper Umatilla, somewhere between the mouths of Wild Horse and

Birch creeks, the other candidate, to be voted upon at said election."

The title

Constitutional provisions such as ours, relating to titles of statutes, are mandatory, yet they are to be liberally construed. They were not designed to impede legislation. State v. Shaw, supra; State v. Koshland, 25 Or. 178, 35 Pac. 32; Escott v. Crescent Coal, etc., Co., 56 Or. 190, 106 Pac. 452. This court will not hold this statute unconstitutional, even though it be of opinion that a better title might have been written. As was said in State v. Morgan, 2 S. D. 32, 48 N. W. 314:

Section 2 provides for the writing of the names of the candidates upon the poll books; section 3, that the county court shall convene within one month after the election and appoint "three competent persons to locate the "Whatever may be the scope of the act, it site for the erection of new county buildings, can embrace but one subject, and all its proviand shall immediately select some point be- sions must relate to that subject. They must tween the said mouths of Wild Horse and be parts of it, incident to it, or in some reaBirch 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 location to the voters, the selection of the new site and the removal of the county buildings; but we apprehend that those are all matters properly connected with the 'change of the location,' which is the subject expressed in the title of the act. * The object of the provision evidently was to prevent matters wholly foreign and disconnected from the subject expressed in the title from being inserted in the body of the act. This restriction is a very important one, and well calculated to prevent imposition being practiced upon unsuspecting members, by procuring their votes for bills with fair titles, which contain objectionable matters unconnected with the subject expressed in the title."

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This decision was followed in McWhirter v. Brainard, 5 Or. 426; cited and explained in Singer Mfg. Co. v. Graham, 8 Or. 17, 34 Am. Rep. 572; cited in O'Keefe v. Weber, 14 Or. 55, 57, 12 Pac. 74; in State ex rel. v. 209 P.-31

The title need not index all the details of the act. It is sufficient if the language used in the title, on a fair construction, indicates the purpose of the Legislature, so that making every reasonable intendment in favor of the act it may be said that the subject of the law is expressed in the title. As said by the Supreme Court of Illinois, in the case of Johnson v. People, 83 Ill. 436, "The Constitution does not require that the subject of the bill shall be specifically and exactly expressed in the title; hence we conclude that any expression in the title which calls attention to the subject of the bill, although in general terms, is all that is required. The Constitution authorizes one subject, and any number of matters, provided they have any natural or logical connection with each other in legislation.'"

The writer is of opinion that what the court said in Commonwealth v. Broad St. Rapid Transit St. R. Co., 219 Pa. 11, 67 Atl. 958, is sometimes applicable to our own

situation in the preparation of bills. The language follows:

it of necessity contemplates the use of public moneys. Such funds are usually derived "In the desire to conform to the constitution- from taxation in some form. Hence the matal requirement that the subject of an act must ter of levying a special tax for the construcbe 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 prohave no proper place there, and produce certain viding for * constructing, improvinconvenience and not improbable danger. Ex-ing, reconstructing, repairing and maintainpressio unius exclusio alterius. * It ing public roads." has always been held that the title of an act need not be a complete index to its contents.

The time has come to say that it not only

need not but ought not."

[3] The act is attacked because its provisions are "indefinite and uncertain" in regard to the publication of notice of taxpayers' 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:

"To provide for surveying, opening, constructing, improving, reconstructing, repairing and maintaining public roads, and repealing" certain acts and parts of acts.

and Linn & Lane Timber Co. v. Linn County, 65 Or. 595, 133 Pac. 347. Neither of these cases applies to the present statute. Those cases annulled section 6321, L. O. L., and 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 meethibition 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 taxpayers." Iclude the provisions of the sections of the statute referred to. The words "to provide for constructing public roads" convey much meaning. At the time the Legislature adopted this act the term "provide," as used in the title thereof, had been judicially determined. In the case of Corvallis & Eastern R. Co. v. Benson, 61 Or. 359, 368, 121 Pac. 418, 421, this court, speaking through Mr.

Justice Burnett, said:

"It is urged on the part of the defendants that to say in the title of the act of 1874 that it is 'to provide for the construction of the Willamette Valley & Coast Railroad' does not indicate that a grant of any state lands was to be made to the company, and that such a grant, not being germane to the title, cannot stand. 'Provide' means 'to obtain or make ready supplies or means for future use.' Standard Dictionary. Also: "To look out for in advance; to procure beforehand; to prepare; to supply, afford, contribute; to furnish, procure things in advance; to take measures in view of an expected or possible need.' Webster's New International Dictionary. Further: To procure or furnish supplies; to make ready, prepare.' Century Dictionary. The act of 1874 by its terms granted the tidelands in the then county of Benton to the Willamette Valley & Coast Railroad Company, and authorized it to mortgage them, under certain conditions, for the purpose of raising funds for the construction of the road. Within the meaning of the definitions of the term 'provide,' as noted above, this was clearly germane to the title of the act. It was plainly notice to any legislator voting upon the bill that the state intended in some way to aid the construction of the road."

The defects in the old statute have been removed by the new.

Section 15, chapter 299, Laws of 1917, re

lating to the giving of notices of special road district meetings, enacts that such notices shall be prepared by the county court and signed by the county judge or commissioner; that they shall set forth the purposes of such

meeting, and the time and place it is to be held. In providing for the giving of notices, the statute requires that-they be posted by certain persons therein named, or by other competent persons

"at least ten days before the time stated therein for holding such meeting, in three conspicuous places within such road district, and in the customary place for posting notices at the courthouse in the county wherein such road district lies, and, if such notices are for a meeting called for the purpose of voting a special tax, by also causing the same to be published once each week for two successive weeks in a newspaper of general circulation throughout said county. Proof of the posting of any such notices shall be made by affidavit of the person posting them, endorsed upon or attached to a certified copy of the notices posted, and filed with the county clerk."

It is true that while the statute provides that the notices must be posted at least 10 days before the time for holding the special road meeting, it does not in terms directly state that the notice published in the newspaper 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 lanrock, or to pave highways; and when the guage used in the section concerning the givLegislature 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

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(209 P.)

The statute is sufficient, and has been fol

This case is affirmed.

-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 appear before the date of the special meeting.lowed. [4] It is a canon of construction that in the interpretation of statutes, the duty of the court is to ascertain and give effect to the intention of the Legislature. Another maxim of construction is that, if reasonably pos sible, a statute should be so construed as to render it valid. This can be done without violence to the language of the statute.

BURNETT, C. J., took no part in this decision.

MCCANN v. OREGON SCENIC TRIPS
CO. et al.

(Supreme Court of Oregon. Oct. 3, 1922.)
Action 22-Distinction between law and

[5] We now come to the assignment relating to the absence of budget. Section 4088, L. O. L. (5139, Or. L.), is sections 43 and 44 (page 41) Gen. Laws of Oregon 1901, which. is an act "to further provide for the establishment of a uniform and general system of public schools in Oregon. This act was amended by chapter 56, Laws of Oregon 1915, again by chapter 206, Laws of Oregon 1917, and again by chapter 106, Laws of Oregon 1919. The act of 1915 amended the statute by providing that

*

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"No tax shall be levied at any meeting unless the call for such meeting shall contain an item ized budget showing contemplated expenditures."

*

This provision was carried into the later amendments noted, and had reference to taxes levied under the act establishing a "uniform and general system of public schools in Oregon. No attempt was made to include road districts. Chapter 222, Laws 1915, the budget law affecting road districts, was held to be unconstitutional in Martin V. Gilliam County, 89 Or. 394, 173 Pac. 938. The language of the road law, reading:

"In all other regards, the law of this state governing school district meetings, shall control at all road district meetings to be held for that purpose"

-was never intended to extend the budget law of school districts to road districts.

"The terms 'tax' and 'taxes' have been defined as a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or states; burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes. * "9 37 Cyc. 706.

[6] Section 14 reads, in part:

"The resident taxpayers of any road district in any county of this state may vote an additional tax not to exceed ten mills on the dollar on all taxable property of the road district" -when authorized by the county court upon proper petition. If a majority of legal voters present favor such a tax and vote for it, the chairman and secretary of the meeting shall cause to be filed with the county clerk a certified copy of the minutes of the meeting, and the clerk shall furnish a certified copy thereof to the county assessor, who shall

equity still maintained.

The distinction between actions at law and suits in equity is still maintained in Oregon. 2. Courts 17-Circuit court held to have jurisdiction of the subject-matter, whether proceeding was action for goods sold or suit to foreclose lien.

subject-matter of a proceeding, whether it was The circuit court had jurisdiction of the an action for the price of tires, tubes, and automobile accessories sold and delivered, or a suit to foreclose a lien on the automobile truck for which they were supplied.

3. Appearance 19(1) — General appearance gives jurisdiction of person.

The circuit court had jurisdiction of defendant's person where he appeared generally in the case.

4. Judgment

107-Demurrer, though not well taken, sufficient to prevent judgment for want of answer.

A demurrer, though not well taken, amounted to an answer preventing a judgment or decree for want of answer. 5. Appeal and error

193(9)-Insufficiency

of facts alleged to constitute cause of suit may be first urged on appeal.

A defendant answering by demurrer not well taken, and appealing after the demurrer was overruled, may urge for the first time in the Supreme Court that the complaint does not state facts sufficient to constitute a cause of action.

6. Livery stable and garage keepers 8(4)— No personal decree against defendant when there was no personal obligation for the debt.

Under Or. L. § 422, no personal decree in equity could be rendered against defendant in a suit to foreclose a lien on an automobile truck for the price of tires and accessories furnished for use on such truck, where no promissory note or other personal obligation for the debt was shown.

7. Bailment 18(2)—One who would enjoy benefit of statutory lien must bring himself within terms of statute.

Liens, such as that created by Or. L. §§ 10272, 10273, giving a lien to one expending labor, skill, or materials upon any chattel at

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the owner's request, are creatures of the statute which extend the common-law lien, and one who would enjoy the benefit of the law must bring himself within its terms. 8. Livery stable and garage keepers 8(4)— Complaint to enforce lien insufficient when it does not appear labor, skill, and materials supplied within county or state.

In a suit to foreclose a lien under Or. L. §§ 10272 and 10273, for labor, skill, or materials expended upon an automobile, the complaint is insufficient to constitute a cause of suit where neither the complaint nor the notice of lien shows that the labor, skill, or materials were expended within the county where the notice was filed, or even within the state. 9. Judgment 249-Not rendered as in action at law where case brought and tried as suit in equity.

Where the complaint was drawn, the cause tried, and the issue raised by defendant's demurrer for want of facts sufficient to constitute a cause of action was heard and determined, and a decree rendered on the theory that the proceeding was a suit in equity to foreclose a lien, judgment will not be entered as in an action at law for goods sold and delivered until defendant is afforded an opportunity to try the controversy as an action at law.

Burnett, C. J., dissenting in part.

Department 1.

performed and rendered in and about said lastdescribed automobile truck. That no part of the said $478.14 has been paid and that there is now due and owing to this plaintiff from said last-named defendant the said sum of $478.14.

Trips Company, was on the dates heretofore "(4) That said defendant, Oregon Scenic mentioned the owner or reputed owner of the said above-described automobile truck, and that at the time said merchandise was so sold and said services so performed the said last-named defendant was in possession and control of said last-described automobile truck.

"(5) That the above-named plaintiff duly filed, as required by law, his claim for lien for the amount due and owing him as aforesaid by said defendant in the office of the county clerk in the county of Clatsop, state of Oregon, on the 6th day of October, 1920, and within 60 days from the date of the sale and furnishing and delivering of said automobile tires and accessories to said defendant, and the rendering of said services to said defendant, which claim for lien so filed was duly signed by claimant, and contained the name of the owner, or reputed owner, of said automobile truck and a description of said automobile sufficient for identification, upon which and for which the said

plaintiff so sold and delivered said automobile tires and accessories and services so performed, and the amount for which the said lien was claimed and the dates upon which said materials 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.

Action by J. P. McCann against the Oregon Scenic Trips Company and others. From a final order in favor of plaintiff, the defendant named appeals. Reversed and remanded. M. B. Meacham, of Portland (Norblad & Hesse, of Astoria, on the brief), for appel

plaintiff, and contained all other material facts in relation thereto, a copy of which notice of lien is hereto annexed and made a part of this complaint and marked Exhibit A.

"(6) That there is now due and owing said plaintiff for said automobile tires, tubes, and accessories so sold and delivered the said de

fendant, Oregon Scenic Trips Company, and for said services performed, the said sum of $478.14, and that said last-named defendant has re

lant. James L. Hope, of Astoria, for respondent. fused to pay the same, and said plaintiff has

BURNETT, C. J. After stating the corporate entity of the defendant, the complaint proceeds as follows:

"(2) That heretofore, and between the 8th day of August, 1920, and the 27th day of August, 1920, the said plaintiff sold and delivered to the above-named defendant, Oregon Scenic Trips Company, certain goods, wares, and merchandise, consisting of automobile tires and accessories of various descriptions, and performed certain services in and about the hereinafter described automobile, all at the agreed and reasonable price of $478.14.

"(3) That the said tires, tubes, and automobile accessories so sold and delivered to the said defendant, Oregon Scenic Trips Company, by said plaintiff were so sold and so furnished the said defendant to be used, and which to plaintiff's information and belief were used, on that certain United States automobile truck bearing Oregon license for the year 1920 No. 80087, and bearing motor No. 3781-20, and that said services so rendered by said plaintiff for said last above-mentioned defendant were

a good and valid claim for lien upon the abovedescribed automobile truck."

The pleading closes with the general assertion that the defendants Henry and Rose have some claim against the automobile in question in the nature of a chattel mortgage, and that $100 is a reasonable amount to be allowed the plaintiff for attorney's fees in the foreclosure of the lien. Another count as to another automobile is inserted in the complaint in identical terms except as to amount and description.

The defendant demurred to the complaint on the following grounds:

"That the court has no jurisdiction of the person of these defendants, or either of them, or of the subject of the action.

"That the complaint does not state facts sufficient to constitute a cause of action."

The court overruled the demurrer, and afterwards, the defendant refusing to plead further, rendered a personal decree against

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