Bennett Trust Co. v. Sengstacken

113 P. 863, 58 Or. 333, 1911 Ore. LEXIS 56

• Court: Oregon Supreme Court
• Decided: March 7, 1911
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. Except for the suggested irregularity in the organization of the board, in that such organization was completed at North Bend on May 12th instead of at Marsh-field on the 10th, within five days after the appointment of the commissioners by the Governor, the plaintiffs ground their complaint entirely on matters accruing before the county court, by its order of April 26, 1909, proclaimed the establishment of the port. Otherwise, so far as the record discloses, the proceedings were carried on and culminated in the passage of the ordinance providing for the issuance of bonds in the same manner as if they had not been commenced until 90 days after the close of the session of the legislature at which the general act was passed. The provisions of the statute already noticed about time and place of organization are manifestly directory in nature and effect, and it is a sufficient observance of the law if these requirements are substantially complied with. The record shows a substantial compliance with the statute in that respect, and so far as the mere organization of the board is concerned after the appointment by the Governor, no ground of complaint exists. 2 Lewis’ Suth. Stat. Const. (2 ed.) §§ 612-616; End. Interp. Stat. §§ 436, 437.

2. It is also urged in the complaint, in the brief of the plaintiff and in argument, that the act in question is unconstitutional, but that matter has already been set at rest by the decision of this court in the case of Straw v. Harris, 54 Or. 424 (103 Pac. 777).

3. Plaintiffs contend that section 10 of the act already quoted, containing the emergency clause, is insufficient in point of law to give immediate effect to the act which otherwise would not be in force until 90 days after the end of the session of the legislature which enacted the law. Section 28, Article IV, of the Constitution of Oregon provides that “no act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble or in the body of the law.” This section was materially modified by Section 1 of the same article of the constitution as amended by the plebiscite at the election of June 2, 1902, so as to confine the use of the emergency clause to laws necessary for the immediate preservation of the public peace, health, or safety. The argument of plaintiffs’ counsel on this point is analogous to the rule of pleading requiring a statement of facts from which a court may be able to draw a desired conclusion of law. In such cases it is conceded to be insufficient, in point of law, merely to plead such conclusion without stating the facts authorizing it. Counsel would apply this argument to the case in hand so as to require the legislative assembly to set out in detail the ultimate facts it relied upon as authorizing the declaration of an emergency, in order that a court called upon to construe the act may consider the facts as alleged by the legislative assembly, not to call in question the truth of the legislative statement of facts, but to determine whether the emergency is a proper conclusion to be drawn from such facts. But no such strict rule hampers the legislative branch of the state government. It has the exclusive power to declare that its enactments are necessary for the immediate preservation of the public peace, health, or safety, and that hence an emergency exists on account of which the act shall take effect when the legislative process, as applied to the act in question, is fully completed. In the case of Dallas v. Hallock, 44 Or. 258 (75 Pac. 204) the emergency clause under consideration reads thus:

“Inasmuch as it is necessary for the immediate preservation of the public health and public safety of the inhabitants of the said city of Dallas, that the provisions of this act should become effective at the earliest possible time, an emergency is hereby declared to exist, and this act shall be in force and effect from and after its approval by the Governor.”

This court there, following its earlier decision in Kadderly v. Portland, 44 Or. 118 (74 Pac. 710: 75 Pac. 222), sustained the emergency clause in question. Following those precedents we determiné that the emergency clause here is sufficient to put the act providing for the incorporation of ports into effect according to the terms of section 10 of the act.

4. But it is said that this act was to take effect from and after its approval by the Governor, and that, no affirmative approval having been signified by the Governor, the act never could take effect, at least not until 90 days after the end of the session at which it was enacted. Section 15, Article V, of the constitution provides that “every bill which shall have passed the legislative assembly shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to that House in which it shall have originated.” If, after reconsideration, two-thirds of the members of both Houses shall agree to pass the bill, it shall become a law. The section further provides:

“If any bill shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, it shall be a law without his signature, unless the general adjournment shall prevent its return, in which case it shall be a law, unless the Governor within five days next after the adjournment (Sundays excepted) shall file such bill, with his objections thereto, in the office of the Secretary of State, who shall lay the same before the legislative assembly at its next session in like manner as if it had been returned by the Governor.

In Biggs v. McBride, 17 Or. 640 (21 Pac. 878: 5 L. R. A. 115), the act there in question had an emergency clause requiring the act to take effect from and after its approval by the Governor. The Governor vetoed the the bill, and the legislature passed it over his objection. In that case this court, in substance, held that the act-took effect when the lawmaking power had done every act or thing necessary under the constitution to its complete enactment as a law.

5. The same principle applies here. Considering the Governor as a part of the legislative power by virtue of his prerogative to approve or object to any act of the legislative assembly, yet the constitution gives effect to his inaction, as well as to his affirmative action, in such cases. As already stated, the twenty-fifth regular session of the legislative assembly ended February 20, 1909. Taking judicial notice, as we must under Section 729, L. O. L., of the public and private official acts of the legislative and executive departments, we know that the act in question, having passed the legislative assembly, was presented to the Governor; that he did not return it within five days to the House in which it originated, but, on the contrary, delivered it to the Secretary of State February 12, 1909. The Governor was not prevented from returning the bill by the general adjournment of the legislature, for that did not happen until eight days thereafter. Under such circumstances the constitution expressly says the bill shall be a law without his signature. We conclude that in respect to the act in question the legal process-of making it a law was complete when the Governor did not return the bill to the House whence it originated within five days from the date it was presented to him, and that all its provisions, including the emergency clause, became effective at once on the completion of that process.

6. It is further contended that this act is unconstitutional, in that it provides for offices the tenure of which shall be longer than four years, thus violating Section 2 of Article XV of the constitution. Conceding that these commissioners are officers within the meaning of that section, yet it must be read in connection with Section 12 of Article II, which states that “in all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.” The design of the act empowering the Governor to appoint the first commissioners was simply to establish a temporary arrangement for beginning the work provided for in the act, and the appointment by the Governor should be considered a pro tempore appointment within the meaning of the constitution. The act further provides that “no commissioner shall either directly or indirectly receive any salary or compensation for his services as a commissioner, or for acting as an officer of the said corporation.” Section 8.

7. The general effect of the act in question is to make these commissioners mere agents for the performance of certain duties defined by the act, and they are not officers within the meaning of the constitution, prescribing that the tenure of an office shall not be more than four years: David v. Portland Water Co., 14 Or. 98 (12 Pac. 174); State ex rel. v. George, 22 Or. 142 (29 Pac. 356: 16 L. R. A. 737: 29 Am. St. Rep. 586); White v. Mears, 44 Or. 215 (74 Pac. 931).

8. By the provisions of the act already quoted the judges and clerks are required to return the canvass of the vote, together with the ballots cast, to the county clerk of the county in which the election is held. In that connection the complaint alleges “that the judges and clerks of said special election did not return the canvass of the vote, together with the ballots cast thereat, to the county clerk of said Coos County, Oregon, in which said county said special election was attempted to be held; but these plaintiffs do allege that said returns left the possession of said judges and clerks of election, and were forwarded to the county clerk of said county in the manner provided for by the general election laws of the State of Oregon, but not in accordance with said port law.” The law governing general elections requires that “one complete set of the tally sheets and the pollbook which was kept by the second clerk, ballots and stubs, ballot boxes, and remaining supplies, shall be forthwith conveyed by one of the judges or clerks of the election, to be agreed upon for that purpose by the judges, to the county clerk of the county.” Section 3328, L. O. L. It is admitted by the complaint that the election returns of the election in question were thus forwarded to the county clerk. The effect of the argument of counsel for plaintiffs is that all the judges and all the clerks should unite and attend in carrying the election returns to the county clerk. If the statute in question were capable of that construction, yet, in the absence of fraud or corruption, none of which appears, we hold that such provision would be merely directory. Equity looks to the substance, and not to the form. For all that appears here the returns reached the county court pure and undefiled, and truthfully disclosed the result of the election. The plaintiffs’ objections on that ground are not well founded.

9. We come now to the principal contention in the case, that of the validity of the election in question. Counsel for plaintiffs pressed upon our attention the cases of Marsden v. Harlocker, 48 Or. 95 (85 Pac. 328: 120 Am. St. Rep. 786); Guernsey v. McHaley, 52 Or. 555 (98 Pac. 158), and Roesch v. Henry, 54 Or. 230 (103 Pac. 439), and insisted that those cases were decisive of this case and must inevitably lead to a reversal of the decree of the circuit court, on the ground that the election involved in this litigation was void. All these three cases arose under and required a construction of what is known as the local option law, regulating the sale of intoxicating liquors. In Marsden v. Harlocker it appeared that the county court of Coos County did not meet in regular or special session, or assemble at the place and time prescribed by law, for the purpose of ordering a local option election in pursuance of a petition therefor which had been filed with the county clerk, but that at different times and in different places the individuals composing the court had signed a memorandum purporting to authorize an election. This court in that case held that by such separate actions of the individuals composing the county court no authority had been given for the holding of such an election. The local option law requires that at least 20 days previous to an election ordered by the county court the county clerk shall deliver to the sheriff of the county at least five notices of the election for each election precinct of the county voting on the question, and it shall be the duty of the sheriff at least twelve days before the election to post such notices in public places in the vicinity of the polling place or places. Both the sheriff and the clerk are required to enter of record their compliance with the provisions of the section requiring the issuance and posting of such notices. In other words, both of said officers are required to make return to the county court of their proceedings respecting the giving and posting of the notices. In Guernsey v. McHaley it appeared that, although the county clerk had issued and delivered to the sheriff the requisite notices for the local option election none were posted in one precinct, in another the notices were posted for only eleven days, and in another only ten days before the election, and in another only three notices were posted, and these only for eight days. The election resulted in a small majority in favor of prohibition, and, in a suit brought by a firm of retail liquor dealers to enjoin the county court from making an order prohibiting the sale of intoxicating liquors in accordance with the election, the court held that the election was not sufficient to authorize the court to make the order. In Roesch v. Henry the rigor of the rule laid down in the preceding cases was somewhat modified. In that case the only defect in the posting of the notices was that the sheriff had posted only three instead of five notices in one precinct, but it was made to appear to the court that, if all the votes in that precinct had been cast against the prohibition of the sale of intoxicating liquors, yet in the whole county there would still have been a very considerable majority in favor of prohibition, and under those circumstances the court sustained the election.

Like the act in question here, the local option law requires a petition signed by a certain percentage of the legal voters, and upon the petition being presented in proper form the county court issues an order for the holding of an election. The local option law contains particular provisions about the manner of giving notice of an election, in that it requires the clerk to issue to the sheriff five notices for each precinct, and imposes upon the sheriff the duty of posting all these notices in the several precincts, and further calls for a return from both of those officers as to their doings in that behalf. Under the law providing for the incorporation of ports, the county court makes the order for the election. It is required that notices of the time of such special election shall be posted in each polling precinct in which such measure is to be voted upon in like manner as is provided for in cases of general elections. In Section 3307, L. O. L., it is provided that “it shall be the duty of the county clerk, thirty days before any general or presidential election, and at least ten days before any special election, to prepare printed notices of the election and mail two of said notices to each judge and each clerk of election in each precinct; and it shall be the duty of the several judges and clerks to immediately post said notices in public places in their respective precincts,” but nowhere is it provided that the judges and clerks of the election shall make any return to the county court of having performed the duty of posting the notices.

In the case at hand it appears that the clerk mailed the notices to the election officers as provided in Section 3307, L. O. L. The only response provided by the general election laws to be made to the notices sent out by the clerk is found in the returns of the election. We thus see, in the matter of giving and posting notices of the election, that there is quite a material difference between the provisions of the local option law construed in the three cases last above mentioned and the act in question in this case. Further, in the three local option cases above mentioned the injunction was sought before any action by the county court, in declaring the result of the election and making the order of prohibition. In the case in hand no action was taken by or on behalf of the plaintiffs until long after the county court had received the returns and proclaimed the result of the election, and the establishment and existence of the port of Coos Bay as a municipal corporation. A further distinction can be drawn between the two cases in this : That the direct effect of the order of the county court in the local option cases declaring the result of the election and making an order of prohibition against the sale of intoxicating liquors would be to destroy the business of the plaintiff and make it unlawful to engage therein, whereas before the election they were engaged in lawful business. In this case the mere holding of the election and making a proclamation thereof by order of the county court had no direct effect on any property right of the plaintiff. The establishment of the port does not in itself necessarily imply taxation or appropriation of plaintiffs’ property. They are possible secondary results, but the ports have other sources of revenue in charges for pilotage, towage, salvage, etc., which may be applied to the payment of the proposed bonds.

The elements authorizing action by the county court are different in the two cases. In the one the county court had before it, in the sheriff’s return that he had failed to post notices in some instances, evidence that its authority to act was defective. In the other the only things giving the county court a right to act were the original petition praying for an election and the election returns sent in by the judges and clerks. The county court in the proceeding involved here had nothing else before it, and had no means provided by law for otherwise acquiring any information about the election. That court could not do otherwise than to act upon the materials which the law had provided for it, and, it having appeared by the returns of the election that a majority of the votes had been cast in favor of the incorporation of the port, the court could do nothing less than to proclaim the result in the form provided by the statute. In legal effect the law has lodged in the county court the power to order a special election, when a proper petition for that purpose has been presented to it, and, further, when the returns of the election have come back to it by virtue of such an order, invests it with the further duty of proclaiming the result of the election and the establishment of the port as a municipal corporation. This action of the county court, although largely ministerial in its nature, is conclusive as against collateral attack: Warner v. Myers, 4 Or. 72; People v. Willi, 147 Ill. App. 207; Woodard v. State, 103 Ga. 496 (30 S. E. 422); State v. Cooper, 101 N. C. 684 (8 S. E. 134); State ex rel. v. Vail, 53 Mo. 97; Gibson v. Twaddle, 1 Cal. App. 126 (81 Pac. 727); Hoy v. State ex rel., 168 Ind. 506 (81 N. E. 509).

10. For all that appears these defendants acted in manner and form, after the county court had declared the election just as commissioners would have done had the election been in all respects as required by law. What, then, is the real question to be determined here? It is to all intents and purposes whether or not the defendants properly hold the office of commissioners of the port. Injunction will not lie to determine that question. In Biggs v. McBride this court held that mandamus was not the proper proceeding to try the title to an office, and the principle there announced is equally applicable to an effort in that direction by injunction, for injunction is complementary to mandamus; the one being preventive, and the other affirmative, exercise of the power of the courts. As illustrative of the principle that injunction is not the proper remedy to try the title to an office, the following cases will be found instructive: Fletcher v. Tuttle, 151 Ill. 41 (37 N. E. 683: 25 L. R. A. 143: 42 Am. St. Rep. 220); Arnold v. Henry, 155 Mo. 48 (55 S. W. 1089: 78 Am. St. Rep. 556); State ex rel. v. Withrow, 154 Mo. 397 (55 S. W. 460); People v. Dist. Court, 29 Colo. 277 (68 Pac. 224: 93 Am. St. Rep. 61); Cochran v. McCleary, 22 Iowa 75; Cozart v. Fleming, 123 N. C. 547 (31 S. E. 822); Davis v. City Council, 90 Ga. 817 (17 S. E. 110); In re Sawyer, 124 U. S. 200 (8 Sup. Ct. 482: 31 L. Ed. 402); People v. Elbert Dist. Court, 46 Colo. 1 (101 Pac. 777); Hotchkiss v. Keck, 84 Neb. 545 (121 N. W. 579).

11. To reach the result desired by the plaintiffs the court is asked to override the exercise of a political power by a co-ordinate branch of the government in appointing these officers, and, having done so, to go still further and overturn in this collateral proceeding the order and proclamation of the county court of Coos County, a tribunal specially authorized to declare the result of an election which it confessedly had the power and authority to order, and, finally, to determine that the defendants had no title to the positions of commissioners of the port. We do not conceive that the equitable power of the court extends so far. If the plaintiffs would determine the title to the positions held by the defendants, recourse can be had to the remedy provided by Section 366, L. O. L., stating that “an action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases: (1) When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation either public or private, created or formed by or under the authority of this State; or * * (3) When any association or number of persons act within this State, as a corporation, without being duly incorporated.” We conclude that the plaintiffs have a plain, speedy, and adequate remedy at law under this section for the grievances of which they complain, having which their suit in equity in this form will not lie.

12. We further conclude that, as disclosed by the record here, the defendants were at least de facto commissioners of the port of Coos Bay, and that their acts are valid so far as described in the complaint here: Leach v. People ex rel., 122 Ill. 420 (12 N. E. 726); Merchants’ Nat. Bank v. McKinney, 2 S. D. 106 (48 N. W. 841). The mere fact, as disclosed by the complaint, that the defendants had passed an ordinance providing for the issuance of bonds, but without providing any means for their payment, whether by taxation or otherwise, does not necessarily involve any property right of the plaintiffs. It would be time enough for the plaintiffs to complain, if then, when the defendants shall attempt to levy a tax upon the plaintiffs’ property for the payment of such bonds. These considerations render it unnecessary to go behind the returns of the election or to inquire whether or not the election was properly conducted in the manner of giving notice thereof.

The decree of the circuit court is affirmed, with costs.

Affirmed.

Mr. Ralph R. Duniway, and Mr. A. E. Clark, for the motion. Mr. John P. Kavanaugh, Mr. Frank S. Grant, city-attorney, and Mr. William C. Benhow, deputy city attorney, contra.