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the general assembly did not so consider it. that a separate provision was inserted in our The provisions for the levy of the tax and for constitution to protect it from improvident the election of a treasurer are affirmative mat- disbursements. So section 32 regulates the ters, and are not properly embraced within two general classes of appropriation bills, by a general appropriation bill. We hold, then, providing that even the general appropriation that this bill, which werged into this act, was bill shall embrace nothing but appropriations not a general appropriation bill. Therefore for the rdinary expenses of the three great the bill, before its passage, having been a departments of state, interest on the public special appropriation bill, its validity is to be debt, and the public schools, and that all other determined by the proper construction of sec- appropriations shall be made by separate tion 32. Sections 21 and 32 of article 5 of bills, each embracing but one subject. Both our constitution, however, are both so inti- sections, therefore, apply to appropriation mately connected with the question before us bills, and these are doubly guarded. Wheththat they should be considered together. Sec- er we construe “each” as qualifying and retion 21 applies to all bills except the general ferring to "bill," or hold that "each” refers to appropriation bill. It provides that no bill, "appropriation,"—as to which we express no with the exception of the general appropria- | opinion,—the same conclusion follows. Section bill, shall be passed containin more than tion 32 was adopted not merely to make emone subject, which shall be clearly expressed phatic the exception found in section 21. Its in its title. It will be observed that not only special office is to guard against improper are all bills of a general character within its appropriations of the public revenue, and to purview, but also all appropriation bills other impose restrictions upon the manner of makthan the general appropriation bill. So that, ing the same not contained in, and in addition so far as the limitations of this section are to those found in, section 21. Whatever may concerned, the general appropriation bill may be the meaning that should be given to the contain as many subjects as are properly word “subject," in section 21, we are satisfied within the power of the general assembly to that it is consonant with, and effectuates, the make provision for. It will also be observed further restrictions sought to be imposed by that as to all other appropriations, by the section 32, to give "subject" as found in this special injunction of the same section, each latter section a meaning substantially equivabill therefor must contain only one subject. lent to “purpose.” Instead of the word "sub
To make clear beyond question the conclu- | ject" in section 21 of our constitution, the consion which we have reached, a brief state- stitutions of some of the other states have in ment of the reasons for the incorporation of like provisions the word "object.” Some this section will assist us. In language more states, as Texas and New York, give to or less variant, it is said that one of the ob- “subject" a less restrictive meaning than "objects was to prevent the combining of discon- ject." Others, like Michigan, regard these nected or incongruous subjects into one bill, words as substantially synonymous. The and thereby gaining a support for all as rule that words found in the same constitugrouped together, which, as separate bills, tion are presumed to have been employed in each, alone, could not command. Not con- the same sense is neither invariable nor intent with this safeguard, which applies to ev- flexible. It is purely an arbitrary rule, -one ery kind of a bill except the general appro- that rests upon presumption merely,-and in priation bill, the framers of our organic act its application is of but slight force, and readadopted section 32. It applies only to bills ily yields where a contrary intent is apparwhich carry appropriations, and divides them ent. Cooley, Const. Lim. (5th Ed.) p. 75. into two general classes: First, the general A definition has already practically been appropriation bill; second, all other bills car- given to this provision in Re Continuing Aprying appropriations, or special appropriation propriations, 18 Colo. 192, 32 Pac. 272, where bills. It is true that the people are affected this court says: “One object of this section] more or less by any bill which is merged into is evidently to prevent the placing in one bill law, but in a peculiar sense are they interest- of appropriations for several purposes, and ed in measures which disburse the public rev- thereby combining in favor of all the advoenue. The public revenue, whether derived cates of each." The object of this act, of from taxation which falls upon all classes course, was to provide money for the support alike, or whether derived from other sources, of these four institutions. The appropriation belongs equally to the people. Thus, proper- for each certainly constitutes one purpose,ly considering the situation, the wisdom and one subject,-each separate and distinct from foresight of the members of the constitutional each of the other three, and each should be convention have been amply justified by sec- made to depend for passage or defeat solely tion 32. All bills other than appropriation upon its own merits. As there are four instibills had been sufficiently guarded by section tutions to which the proceeds of the tax lev21 in the requirement that each general sub- ied are to be applied and exclusively devoted, ject of legislation must have its separate bill, | ¡t follows that there are four distinct subjects so that it should stand or fall upon its own or purposes of appropriation contained in one merits. But the evils and dangers of combi- | act, which is inhibited by section 32 of article nations and "logrolling" in the matter of the 5 of the constitution. To give to the word appropriation of public revenue were so great "subject" a meaning broader than this would
destroy one of the objects of this constitution- for the possession of the land sued for, de al provision. To give it the broad meaning fendants bring error. Affirmed. foi which the contention is made would logi- The complaint in this case alleges that cally permit the legislature in one bill, enti- plaintiff, Higbee, is the owner, in fee simple, tled "An act to provide for an appropriation and entitled to the possession, of a certain to defray the expenses of the government,” quarter section of land, situate in Bent counto make appropriations for every conceivable ty, Colo.; that before the bringing of this acand possible object within the power and con- tion the defendants wrongfully and unlaw. templation of the legislature to provide for, fully and forcibly entered upon and took posand would tolerate the combining into one session of the same, and ousted the plaintiff special bill appropriations for every state in- therefrom, and still continue, unlawfully and stitution and arm of the government, and thus wrongfully, to withhold and retain from make of a special bill a broader and more plaintiff the possession of the same. In the comprehensive measure than the general ap- complaint there is stated a good cause of acpropriation bill itself. Such an interpreta- tion to recover possession of real property, tion would really make, under our constitu- under chapter 23 of our Code. In addition to tion, only two appropriation bills,-one, the the matters that are properly contained in a general appropriation bill, containing the sub- complaint in such an action, there are a numjects which said section 32 of the constitu- ber of other allegations, which, in substance, tion specifies as properly included therein; disclose the following state of facts: At the the other, a special bill to defray the expenses September, 1890, term of the district court of of the state government, and embracing ev- Bent county, Rhoades et al. (who are plainery subject not comprehended in the general tiffs in error here, and were defendants below appropriation bill. It is conceded that, logi- in the case at bar), as plaintiffs, instituted an cally, such would be the result of giving to action in the nature of an action of ejectment the word any broader meaning than we have against William Higbee, who is defendant in given it. But such interpretation is clearly error here, and who was plaintiff in this acnegatived by that clause of section 32 which tion below. In that original ejectment acdivides into two classes all appropriation bills,
tion, Rhoades et al. recovered a judgment for viz. the general appropriation bill, and all the possession of a certain strip of land, about other appropriation bills, which clearly con- 72 feet in width by 142 mile in length, and a templates that there shall be, and necessarily writ of restitution was awarded them to en. must be, as many appropriation bills as there force the judgment. In January, 1891, the are subjects or purposes of appropriation. sheriff, in attempting to execute the foregoFor the reasons given, we hold that the act ing writ, put Rhoades et al. into possession, is unconstitutional.
not only of the strip of land theretofore awarded to them by the said judgment, but
also into the possession of an additional strip (21 Colo. 88)
of land, about 99 feet in width and 12 mile
long, lying immediately north of, and adja. RHOADES et al. v. HIGBEE.
cent to, the foregoing strip. In March, 1891, (Supreme Court of Colorado. April 1, 1895.) this action which we are now considering was EJECTMENT-PLEADING-JUDGMENT-APPEAL. instituted by Higbee, in the same district
1. A complaint alleging that plaintiff is the court, to recover the possession of the aforeowner and entitled to the possession of the lands
said strip of land, 99 feet in width. This comsued for, and that defendants wrongfully took and withhold the possession, states a good cause
plaint further charges that the sheriff, in atof action, under Code, c. 23, although it contains tempting to execute the writ of restitution, the additional averments that the sheriff, in at
construed said judgment and the writ of restempting to execute a writ of restitution upon a judgment previously recovered by defendants,
titution as embracing a strip of land aggreput them into possession of the strip in contro- gating in width the two strips hereinbefore versy, which was not embraced by such judge described, and put Rhoades et al. into posses
sion of both, which they still retain. There 2. An answer to such complaint which merely denies that the sheriff put defendants
are other allegations in the complaint, upon into possession of any part of the lands describ- which was based an application for a tempoed in the complaint, and that they entered into
rary writ of injunction, but they are unnecespossession of any land awarded to plaintiff, without denying plaintiff's ownership, or that
sary to be considered here.
For the purposes they are in possession, is insufficient.
of this decision, the foregoing summary of 3. A judgment which correctly decides that the complaint is all that is necessary. & certain prior judgment in favor of defendants, for the possession of certain lands, did Hedley V. Cooke, for plaintiffs in error. not entitle them to the strip in question in the
Charles M. Rigley, for defendant in error. present suit, and awarding the possession thereof to plaintiff, will not be reversed because it also improperly assumes to correct such prior CAMPBELL, J. (after stating the facts). judgment by clearly excluding the strip in con- A demurrer on the ground that the complaint troversy.
did not state facts sufficient to constitute a Error to district court, Bent county.
cause of action was filed by the defendants to Action by William Higbee against Abram this complaint, and overruled by the court. Rhoades and others to recover possession of This ruling was proper, because, as has been real estate. From a judgment for plaintiff stated, the allegations of the complaint were
sufficient to constitute the action one for the tiff therefrom, and still wrongfully and unrecovery of the possession of real property. lawfully withhold possession thereof from the Upon the overruling of the demurrer the de- plaintiff. In their answer, defendants do not fendants, Rhoades et al., filed an answer in deny the ownership of the plaintiff. They do which they denied that the sheriff wrongfully not deny that they are in possession of the placed them in the possession of any land to property. By failing to deny the allegations which they were entitled under the judgment of the complaint so charging, they admit that set out in the complaint. They further de- they are in possession, and that plaintiff is the nied that the sheriff placed them in posses
They deny that the sheriff wrongful. sion of any part of the quarter section of land ly put them into possession of any land to described in the complaint, and denied that which they were entitled under the original they had ever entered upon any lands award- judgment, and deny that the sheriff put them ed to the plaintiff. Upon the supposed issues into possession of any portion of the 160-acre thus joined, a trial was had to the court with- tract described in the complaint. They furout a jury, apparently by agreement of the ther deny that they entered into possession of parties. The only evidence offered on the any land awarded to the plaintiff Higbee. As trial was that introduced by the plaintiff, has been said, however, there is no denial in Higbee, and consisted of the instructions of the answer of plaintiff's ownership, or that the court, the verdict of the jury, and the the defendants were in actual possession of judgment of the court in the original eject- the property in controversy at the time this ment action. The defendants, Rhoades et al., action was instituted. The denial that the offered no testimony whatever. From this sheriff put them into possession of any part evidence the court made a finding to the ef- of the quarter section in dispute is not at all fect that the intention of the verdict, as re- inconsistent with the fact that they themturned by the jury, and the judgment, as en- selves entered into and took possession theretered of record by the clerk, was to award to of, and still retain the same, and the comRhoades et al., plaintiffs in the original case, plaint so charges. We see no pertinency in only the land described as the strip 72 feet the denial that defendants entered upon any in width by 12 mile in length. Upon such ands awarded to the plaintiff, Higbee, as finding the court made an order directing the there is nothing either in the complaint or the clerk of the court to correct the records by en- answer to show that any award of land had tering therein a reformed judgment, which ever been made to Higbee. The denials of the court prepared, and which is set out in this answer do not in any way put in issue the bill of exceptions in this case, which cor- the material allegations of the complaint. rectly, according to this finding, expressed the The most that can be contended is that the judgment which, as a matter of fact, was ren- defendants merely deny that their possession dered and pronounced by the court at the of the property was wrongful. This is only a September, 1890, term in the ejectment ac
conclusion of law, and does not negative any tion, and which, as thus corrected, more clear- material allegation of the complaint. It aply described the strip of land, 72 feet wide, pearing from the pleadings that the undiswhich the court and jury evidently intended puted facts are that the defendants wrong. to award to Rhoades et al. in that action. In fully took possession of, and wrongfully with. addition to such decree and order making the held from the plaintiff, this strip of land 99 foregoing correction, the court below adjudged feet wide and 12 mile long, of which the that the plaintiff, Higbee, recover from the plaintiff was at the time seised, and of which defendants, Rhoades et al., possession of that he was entitled to the possession, the action strip of land, 99 feet wide by 12 mile long, of the court in giving judgment for the plainlying immediately north of and adjoining the tiff for the recovery of the possession of the strip of land, 72 feet wide, described above. property was right. It is immaterial that the
Exactly upon what theory, under the com- decree of the court also provided for the corplaint in this case, and in this character of rection of the judgment in the ejectinent acan action, the district court corrected the tion, and this is so even though such ruling original judgment pronounced in the first ac
was wrong. Payne v. Treadwell, 16 Cal. 220; tion, we are at a loss to know; but the deci- F. A. Hihn Co. v. Fleckner (Cal.) 39 Pac. 214. sion of this case does not call for any deter- It follows that the judgment should be afmination by us of the correctness or incorrect- firmed. Affirmed. ness of such ruling. Under our construction of the pleadings in this case, the court was
(27 Or. 175) fully justified in finding, as a matter of law,
LATTIE-MORRISON V. HOLLADAY et al. upon the complaint and answer, that the plaintiff, Higbee, was entitled to recover the
(Supreme Court of Oregon. April 1, 1895.) possession of the strip of land in controversy
ADVERSE PossesSION-EVIDENCE JUDGMENT IN
ANOTHER Suit. in this action, viz. the strip 99 feet wide by
1. On an issue as to adverse possession, a 12 of a mile in length. It will be observed
decision, in an action against the same defendthat the complaint alleges that the plaintiff, ant by another plaintiff, that defendant held as Higbee, was seised in fee of the premises in
mortgagee of the latter, to which action plaintiff
was not a party, and which was brought long controversy, and entitled to its possession;
after plaintiff acquired title, is not admissible to that the defendants wrongfully ousted plain- I show the character of defendant's possession.
2. Acts of 1878 and 1880, removing all legal disa bilities of married women, did not affect the provision giving a married woman 15 instead of 10 years in which to sue for land.
3. A mere servant or employé of an adverse claimant, whose possession is merely temporary, and who has no interest therein, is not a party in the actual possession at the time, within the meaning of 1 Hill's Ann. Laws, 8 316, requiring an action to recover land to be commenced against such a party; and an action against and service upon such servant does not interrupt the running of limitations.
4. On an issue as to defendant's adverse possession, where there was testimony that defendant knew of plaintiff's claim of title, the court having erroneously stated that an adverse claim under color of title must be made in good faith to ripen into a perfect title, it was error to refuse to correct the error by charging that the fact that one claiming under color of title knew that he was wrong does not affect the adverse character of his holding.
5. Where the testimony is conflicting as to whether the possession of one claiming under a will was adverse to the heirs, or was in recognition of their title as cotenants, an instruction assuming that limitations would not run in favor of her grantee until he recorded his deed and entered into actual possession is erroneous.
Appeal from circuit court, Clatsop county; T. A. McBride, Judge.
Action by Mary E. Lattie-Morrison against Joseph Holladay and others to recover possession of the undivided one-third interest of certain lands. From a judgment for plaintiff and the refusal of a new trial, defendant Holladay appeals. Reversed.
This is an action brought against Joseph Holladay, C. B. Bellinger, and W. A. Malin to recover possession of an undivided onethird of the donation land claim of Elizabeth Lattie in Clatsop county, Or. The defendants Bellinger and Malin, by their answers, denied being in possession of the property, and disclaimed any interest in or claim thereto, and the action was subsequently dismissed as to them. The defendant Holladay denied all the allegations of the complaint, except his possession, and set up as a defense the statute of limitations, and upon this issue alone the cause was tried. The facts are that on May 15, 1868, Elizabeth Lattie died seised and possessed of the land in question, leaving as her heirs the plaintiff and three other children, to wit, Ellen Cloutrie, John Lattie, and William Lattie, and a will in which she purported to devise the whole of her property to her daughter Ellen. Subsequently, John Lattie died, intestate, leaving, as his heirs, his surviving brother and two sisters; and, by reason thereof and the invalidity of the will as to plaintiff, she now claims to be, and is, unless barred by the statute of limitations, the owner and entitled to the possession of an undivided interest in the premises in controversy. After the death of Mrs. Lattie, her will was regularly admitted to probate, the estate duly administered upon, and on the 2d of September, 1872, the administrator was discharged, and the property turned over to the possession of Ellen, the devisee named in the will, who remained in possession thereof
until she sold to the defendant and his grantors, as hereinafter stated. On December 13, 1872, Mrs. Cloutrie and her husband sold and conveyed 25 acres of the claim, and on July 26, 1873, an additional 19 acres (which, together with the 25-acre tract, has since been known as the “S side Hotel Property'), to the Oregon Real-Estate Company, a corporation of which Benjamin Holladay was president. Immediately after the purchase, the real-estate company, through Benjamin Holladay, took possession and proceeded to improve the property by constructing thereon an hotel building and other valuable improvements to be used as a seaside summer resort, and remained in possession until December 29, 1875, when it was conveyed to the defendant Joseph Holladay, to whom the possession was delivered. On January 27, 1874, Mrs. Cloutrie mortgaged the remainder of the claim to Benjamin Holladay, to secure the payment of the sum of $4,000 and interest. This mortgage was subsequently assigned to the defendant, who foreclosed it, and advertised the property for sale, under the decree; whereupon Mrs. Cloutrie, in satisfaction thereof, conveyed to him, by deed dated June 25, 1877, and recorded on July 6, 1877, the whole of the donation claim of her mother, and a short time thereafter vacated the premises. The defendant gave evidence tending to show that he immediately took possession thereof, and continued in the open, exclusive, and adverse possession of the property conveyed by the deed of June 25, 1877, and the Seaside Hotel property, until November, 1883, when he surrendered possession to the receivers appointed in a suit brought against him by Benjamin Holladay; that the receivers remained in the exclusive and adverse possession of the property until the 18th day of July, 1889, when, by order of the court, it was again turned over to him, and he went into possession, claiming the same as owner, under and by virtue of a deed from George W. Weidler, trustee and receiver, made and delivered to him at that time. The trial resulted in a verdict and judgment in favor of the plaintiff for an undivided one-fourth interest in the donation claim of her mother, excepting the Seaside Hotel property, a 65-acre tract, and a 2-acre tract sold by Mrs. Lattie, to which neither party laid claim in this action. From such judgment the defendant appeals, assigning error in the admission of evidence and the giving and refusal of instructions.
C. H. Carey and F. J. Taylor, for appellant. C. W. Fulton, for respondent.
BEAN, C. J. (after stating the facts). On the trial, plaintiff gave evidence tending to show that, during the time Mrs. Cloutrie and Benjamin Holladay were in possession of the property in controversy, they both recognized and admitted her right as a tenant. in common with them, and that neither claimed an exclusive ownership or possession as
against her, and did nothing amounting to an trol the proceedings or to appeal therefrom, ouster. The defendant, however, contended, nor is she claiming under or through either notwithstanding this fact, if it was a fact, of the parties thereto. Whatever right she that he had been in the adverse possession, has in the property in controversy accrued claiming as owner, under the deeds from Mrs. and was fixed long prior to the commenceCloutrie and the real-estate company, for ment of the suit of Holladay v. Holladay, or more than the statutory time, and was there- the rendition of the decree therein, and is fore entitled to prevail in this action, inde- entirely independent of any interest of the pendently of the acts or conduct of either Holladays. Nor is it sufficient that the deBenjamin Holladay or Mrs. Cloutrie. Το fendant here is a party to both proceedings. meet this contention, and to show that he Estoppels must be mutual, and, unless the was in possession up to 1889, as a mort- decree is binding upon both parties, it is gagee only, the plaintiff offered, and the binding upon neither. "No person," says court admitted, in evidence, a decree of the Mr. Freeman, "can bind another by any adcircuit court of Multnomah county of date judication, who was not himself exposed to July 12, 1886, in a suit between Benjamin the perils of being bound in a like manner Holladay and the defendant, in which it had the judgment resulted the other way." was found, adjudged, and decreed that the Freem. Judgm. $ 154. And Mr. Justice Rufdefendant held such property as the mort- fin says in Redmond v. Coffin, 2 Dev. Eq. gagee of Benjamin Holladay only, and di- (N. C.) 443: "A decree in favor of one party recting that redemption be made within 90 cannot protect another, who was not a pardays, or, in default thereof, that the prop- ty, unless he be a privy. And, indeed, a erty be sold to satisfy the defendant's claim stranger thus introduced cannot use the dethereon. This decree was not only admitted cree at all as such, because it cannot be used in evidence, but the court instructed the jury against him." And Gibson, C. J., says: that it conclusively established the fact that "That the record of a judgment can affect Benjamin Holladay was the real owner of only parties and privies, and that no one the property in controversy, and the defend- shall have advantage from it who would ant but a mortgagee in possession, and there. not have been prejudiced by it, are principles fore his rights were to be ascertained and de- with which every lawyer is supposed to be terniined the same as if Benjamin Holladay familiar." Shulze's Appeal, 1 Pa. St. 251. had remained in possession of the property, See, also, 1 Herm. Estop. $$ 135, 136; Freem. and had been holding in recognition of plain- | Judgm. $ 159; Black, Judgm. § 518; Carr tiff's title. The possession of the defend- V. Acraman, 11 Exch. 568; Henry y. Woods, ant or the receivers appointed in the suit of 77 Mo. 277; Chamberlain v. Carlisle, 26 N. Holladay v. Holladay should not be regarded H. 540; Winston v. Starke, 12 Grat. 317. as adverse to plaintiff until after the judicial Now, if, by the decree in Holladay v. Holsale in 1889.
laday, it had been adjudged that the deThe admission of the decree in evidence, fendant in this action was the owner in fee and the effect given thereto by the court, con- of the premises, and that Benjamin Hollastitute the first and an important assign- day had no interest therein, it could not ment of error in this case. The objection to for a moment be successfully contended that its admission is that, as to the parties to this such adjudication would be binding upon the action, it is res inter alios acta, and there. plaintiff, and prevent her from showing by fore not competent evidence. The funda- competent evidence, if she could, that Benjamental rule on this subject undoubtedly is min Holladay was in fact the real owner of that the record of a judgment or decree in the premises, and that Joseph Holladay was personam or quasi in rem can affect only par- but a mortgagee in possession. If, then, such ties and privies; that is, those who have the an adjudication would not have been binding right to adduce testimony or cross-examine upon her, certainly she cannot claim that the the witnesses introduced by the other side, defendant is bound by the decree as actually or who have a right to defend the action or rendered, in view of the rule that "nobody suit, or to appeal from the judgment or de- can take benefit by a verdict who had not cree, or those who claim by mutual succes- been prejudiced by it had it gone contrary." sion or relationship to the same rights of It is argued for the plaintiff that the decree property or subject-matter. All other per- is admissible as a link in the chain of defendsons are strangers, and the judgment is not ant's title, and to show the character of his binding upon them. Starkie, Ev. (10th Ed.) possession. But he is claiming by adverse 318; Black, Judgm. 88 600, 794; 1 Herm. possession alone, and not under a paper title; Estop. $ 299; Freem. Judgm. $ 151; Freeman nor is his possession under or by virtue of the v. Alderson, 119 U. S. 185, 7 Sup. Ct. 105. It decree, and, besides, the record shows that is apparent that, under this rule, the decree it was not offered for any such purpose, but in question was not admissible in evidence for the declared object “of showing that Bento establish Benjamin's Holladay's interest jamin Holladay was the real owner of the in the property, nor was it conclusive upon property in dispute so far as the title stood in the parties to this action. The plaintiff was the Holladays up to 1889." For this purpose an entire stranger to the proceedings. She alone it was offered and used on the trial. In bad no right to appear in the suit or con- other words, it was offered and admitted as