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. Indianapo

lis, 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; 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, adopting 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 the work in the department formerly done impose upon the chief deputy state engineer by the state highway engineer is void under that the act embraces a subject which is not section 20 of article 4 of the Constitution, in 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:

"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 engineer, 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

expenses.

Thus far there is little difficulty or contention as to the meaning of the statutes in question. 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

Reported in full in the New York Supplement; reported as a memorandum decision without opinlon in 55 Hun, 603.

[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 not rendered inoperative by unconstitutional policy and intent of the Legislature, it is provisions in a later section which do not 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 v. West Duluth, 47 Minn. 272, 50 N. W. 128.

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 reed by chapter 337, Laws of 1915. The "state lating to the highway engineer as to provide engineer" being substituted for the "state that the work of that officer should be sub-highway engineer" by the later act, there

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-CONSTIWORKMEN'S COM

TUTIONAL PROVISIONS
PENSATION ACT.

The Workmen's Compensation Act, entitled "An act creating the State Industrial Accident Commission and providing an industrial accident fund," an appropriation for such fund, providing for the administration of the terms of the act, for the collection and disbursement of funds for the compensation of workmen, prescribing the duty of employers and workmen subject to the act, providing penalties for a violation of its terms, and abolishing, in certain cases, the defenses of assumption of risk, contributory negligence, and negligence of fellow servants in actions for personal injury and death, does not violate the constitutional requirement that every act embrace but one subject, which shall be expressed in its title. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 145, 147-149; Dec. Dig. 114. 4. CONSTITUTIONAL LAW 80-MASTER AND SERVANT 162, New, vol. 16 Key-No. Series-JUDICIAL POWER - ENCROACHMENT BY

16 Key-No. Series-WORKMEN'S COMPENSATION ACT-CONSTITUTIONALITY.

Such act is not unconstitutional because requiring the employé to elect, at the time of his employment and in advance of any injury, whether he will come under its terms, and prounder its terms, he waives any other remedy, viding that if he voluntarily chooses to come since the act merely proposes to employers and employés an accident and life insurance scheme in lieu of litigation, which noncompulsory feature eliminates the objection of its unconstitutionality.

8. STATUTES 119-SALARY OF PUBLIC OFFICERS-FORM AND CONTENTS OF ACT.

Workmen's Compensation Act, creating a State Industrial Accident Commission composed of three commissioners, appointed for terms of four years at an annual salary of $3,600, payable from the accident fund provided by the act, does not violate Const. art. 9, § 7, declaring that laws making appropriations for the salaries of public officers and current expenses of the state shall contain provisions upon no other subject, since it is not an appropriation bill in the sense that bills providing for general current expenses or salaries of constitutional officers are such, especially in view of the construction followed and acquiesced in by the Legislature, and Such act, creating a State Industrial Acci- of the disorganization of public business and dedent Commission, composed of three commis-struction of private pecuniary rights which sioners charged with the administration of the would follow a declaration of its unconstitutionact, does not contravene Const. art. 3, § 1, de-ality. claring that the powers of government shall be divided into three separate departments, the legislative, the executive, including the administrative, and the judicial, and that no officer of any department shall exercise the functions of another.

LEGISLATURE.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 140, 143-147; Dec. Dig. €80.]

5. CONSTITUTIONAL LAW 80-MASTER AND SERVANT 161⁄2, New, vol. 16 Key-No. Series-JUDICIAL POWERS CONSTITUTIONAL PROVISIONS-INDUSTRIAL ACCIDENT BOARD.

Under Const. art. 7, § 1, as amended in 1911, the Legislature was authorized to confer 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 Constitutional Law, Cent. Dig. §§ 140, 143-147; Dec. Dig. 80.]

6. CONSTITUTIONAL LAW 313, 328-RIGHT TO JUSTICE-DUE PROCESS OF LAW-WORKMEN'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 Accident 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 theory 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 Constitutional Law, Cent. Dig. §§ 933, 950-963; Dec. Dig. 313, 328.]

Cent. Dig. §§ 164-167; Dec. Dig. 119.J
[Ed. Note. For other cases, see Statutes,
9. CONSTITUTIONAL LAW 48- CONSTITU-
TIONALITY OF STATUTE-CONSTRUCTION.

A statute will not be held unconstitutional where a reasonable doubt exists as to its invalidity.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. 48; Statutes, Cent. Dig. § 56.]

In Banc. Appeal from Circuit Court, Marion 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 enforcement of chapter 112, Laws of 1913, generally known as the Workmen's Compensation 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 alleges 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

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

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 pay-al throughout the state. Such act has not been ment 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 office 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. #

*

"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 there

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 Legisla-
ture, by fixing such judgments, attempts to and
did exercise judicial powers. (3) It is not with-
in the police powers of the state. (4) It pro-
vides a system of awards based upon sociological
reasons, and disregards the individual and per-
sonal right of an injured employé to recover
such injuries, and thereby violates section 10,
art. 1, and section 17, art. 1, of the Oregon Con-
stitution. (5) It imposes taxes which are gener-
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
officers 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 ac-
cident fund; (c) making an appropriation for
such fund; (d) providing for the administra-
tion 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 work-
men subject to the act; (g) provides penalties
for violations of the terms of the act; (h) abol-
tempts to regulate rights where injuries to a la-
boring man are caused by third persons; (j)
provides a system of appeals and regulates prac-
tice thereon. (8) It vests judicial power in the
State Industrial Accident Commission without
providing for a jury trial before it, and at-
tempts to make its decisions binding unless ap-
pealed from, and thereby deprives injured la-
borers of their right of jury trial in civil cases,
and is violative of section 17, art. 1, section 1a,
art. 1, and section 10, art. 3, of the Constitu-
tion of Oregon. (9) It provides for the deter-
mination of questions involving the extent of
injuries and the amount to be recovered by in-
jured workingmen, and vests the determination
of such questions in the said Oregon Industrial
Accident Commission, and does not require no-
tice to be given to the injured workingmen of
the time or place of hearing, nor require pro-
cess 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 sec-
tion 17, art. 1, of the Constitution of Oregon.
(11) At sections 2 and 3 of the Workmen's Com-
pensation Act, it provides for the appointment

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.

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 otherwise 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 prohibits 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 Isham N. Smith, of Portland (Logan & any municipalities within the state, are guar-Smith, of Portland, on the brief), for appel"The said act is violative of the Constitution lant. Geo. M. Brown, Atty. Gen., and J. O. of the United States and of the state of Oregon Bailey, Asst. Atty. Gen., for respondents. 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, 81, 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 recovery to sums not purporting to be commen-in question his financial burdens as such will

anteed and retained.

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