Bayless v. Douglas County

111 P. 384, 57 Or. 301, 1910 Ore. LEXIS 47

• Court: Oregon Supreme Court
• Decided: November 1, 1910
• Status: Published

Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. But one question is suggested upon the appeal, viz., whether the district boundary board is without authority to act in this cáse, for the reason that no method of procedure is provided by law. Plaintiffs contend that the act of the legislature of 1907 (Laws 1907, p. 193), providing for the betterment of the system of public education in the state, is not a re-enactment of the former statute upon the same subject, but a new and independent statute, and therefore is not affected by other portions of the earlier statute which provide a method of procedure. We cannot agree with this view.

In 1899 (Laws 1899, p. 209) a general law was passed by the legislature to provide a uniform system of public education. By Section 19 (Section '3360, B. & C. Comp.) the district boundary board was created, and in subdivision 1 thereof it is provided that “the superintendent and the county court, or the board of commissioners in counties where this board is a separate body, shall constitute a board for laying off his county in convenient school districts, such board to be styled the district boundary board. Said board shall make alterations and changes in the same when petitioned so to do, in the manner hereinafter specified.”

In School District v. Palmer, 41 Or. 485 (69 Pac. 453), this court held that, as that act made no provision for the manner in which the board shall proceed, it was without power to act. Thereupon the following legislature (Laws 1901, p. 24) besides amending Sections 12, 19, and 22 of the act of 1899, with the view to providing the manner of procedure omitted from that act, added, under title 4, among others, Section 26 (Section 3365, B. & C. Comp.), which prescribes the manner in which the proceedings may be initiated and conducted by the board. The act of 1907 repeals Section 3360, B. & C. Comp., but re-enacts it with some additions ; Section 1 thereof being a repetition of subdivision 1 of Section 3360, which contains the clause above quoted. The title of the act of 1907 begins with the words, “An act providing for the betterment of the system of public education in the State of Oregon.”

Section 3360 was divided into 23 subdivisions. The act of 1907 marks these subdivisions as sections. Subdivision 5 is modified, and subdivision 17 is omitted from the latter act. Otherwise Section 3360 is repeated literally therein with some additions. The first sentence of the title of that act shows it to be intended as a part of the general statute on the subject of education. Section 3365 is not repealed, and, in fact, the act of 1907 is intended to take the place of Section 3360, which it repeals. The manner of procedure provided in Section 3365 applies to the district boundary board of the act of 1907 as it formerly did to that of Section 3360. The act of the legislature (Laws 1905, p. 50) applying to counties having 20,000 children of school age is in the same condition as that of 1907. It is a re-enactment of Section 3360 with slight changes.

2. In Small v. Lutz, 41 Or. 570 (67 Pac. 421: 69 Pac. 825), it is held that a re-enactment of a former statute is to be read as a part of the earlier act, and not of the new one, if the latter is in conflict with another act passed after the former, but before the latter, and does not impliedly repeal the intermediate act. This principle is applied by Mr. Justice Moore in Renshaw v. Lane County Court, 49 Or. 526 (89 Pac. 147), where the new statute was a re-enactment of the old, holding that it is only a new statute as to the changes made. In the first case cited the new statute was an amendment, but in the latter case the later law is a new charter and does not purport to be an amendment. Nevertheless, it is held to be a re-enactment. This principle is restated in City of Eugene v. Willamette Valley Company, 52 Or. 490 (97 Pac. 817). In State ex rel. v. Malheur County, 54 Or. 255 (101 Pac. 907: 103 Pac. 446), the act construed was not an amendment in name. The old' charter incorporated the “town of Vale.” The new one incorporated the “city of Vale.” In the opinion Mr. Justice McBride refers to the fact that the act does not purport to amend the old charter, and holds that the portions of the old charter adopted in the new, are re-enactments and must be interpreted accordingly.

In the case before us the act of 1907 must be considered as a re-enactment of such portions of Section 3360 as are unaltered by the new law, which is the case as to section 1 of the act of 1907. And the language in that section, “in the manner hereinafter specified,” refers to Section 3365, B. & C. Comp. Without the words quoted, that' section would apply. The legislative intent is plain that the act of 1907, in so far as it relates to the same subject, should be substituted for Section 3360.

The judgment is affirmed. Affirmed.