Peterson v. Lewis

154 P. 101, 78 Or. 641, 1915 Ore. LEXIS 69

• Court: Oregon Supreme Court
• Decided: December 28, 1915
• Status: Published

Opinions

Mr. Justice Bean

delivered the opinion of the court.

1. It is claimed by defendant that the highway commission by an order relieved the state engineer of all duties and responsibilities in connection with the highway work, and provided that it should be done by I. E. Cantine, chief deputy state engineer. On account of the action taken by the commission, the state engineer endeavors to assume a neutral attitude in the premises. Counsel have appeared as amici curiae, made oral argument in the interest of the highway commission, and also filed a brief. The interest of the commission should be considered to the- same extent as though it were a party to this cause. It is contended by the petitioners that under Chapter 339 of the Laws of 1913, the duties to be performed by the state engineer are separate and distinct from those which that act requires him to perform in connection with the state highway commission; that he is authorized and required by law to act for the various counties of the state in the capacity of an engineer in the matter of road construction; that he, having been substituted for the state highway engineer, is the only officer recognized by the law or the contract to perform these functions. It is suggested on behalf of the defense that the plaintiffs are not entitled to the benefit of the writ, for the reason that the duty, if it exists, is a contractual one and not imposed by law.

2. The writ lies to compel the performance of an act which the law imposes as a duty resulting from an office, trust or station. Whenever the law gives power to or imposes an obligation on a particular person to do some particular act or duty, and provides no other specific remedy, for the performance thereof, the writ will issue. Duties of this kind need not be specifically stated in the law. If they are imposed by implication from a fair, reasonable construction of the law, it is sufficient. It is not necessary that they be imposed by law on the individual in question, provided he has put himself in the position from which by law the duties accrue: Merrill, Mandamus, § 13. By the same authority (section 16), since the object of the writ is to enforce duties created by law, it will not lie to enforce private contracts, unless it is extended to such cases by statutory enactment. Where, however, a contract involves an official duty, the rule is otherwise, since that is one of the grounds for the issuance of the writ.

It is maintained by counsel in behalf of the highway commission that the chief deputy state engineer is an independent officer, upon whom, if anyone, the alleged duty rests. These questions require a construction of the statutes of 1913'and 1915. First. What were the duties of the highway engineer in the premises, under the provisions of the act of 1913? As we go along it will be well, in the same connection, to note to some extent the general purpose and scope of the act in order to keep in mind the legislative object and intent. The title indicates that its objects and purposes are: (1) To create a state highway commission, defining the duties thereof, and making provision for the payment of expenses while engaged in the performance of such duties; (2) to create the office of state highway engineer, provide for the appointment of such officer, prescribe his duties, fix his salary, provide, for the conduct of subordinates in, and payment of expenses of, his office; (3) to prescribe the duties of the county courts and other county officials in relation to the purposes of the act; (4) to provide for the creation of a state highway fund, the levying of a tax to create the same, and the use and disbursements thereof; (5) to provide for the employment of convicts on roads; and (6) to make an appropriation for carrying out the purposes of the act. By this chapter the state highway commission is created, and provision is made for the appointment of a state highway engineer who shall be versed in scientific road construction. Viewing this statute from a general standpoint, it appears that a scheme was inaugurated for the construction of roads by the state and its counties working in unison, in order that state and county roads may eventually connect and form a continuous highway. In order to accomplish this, the act provides that the state highway engineer shall render assistance to the several County Courts and highway officers in promoting highways and in the improvement and construction of roads. As a matter of reciprocity, it enjoins upon the latter and other county highway officers the duty of furnishing the former, upon his written request, with all available information in connection with the building and maintenance of public highways and bridges in their respective localities: See Section 7. Section 4 of the act directs that the engineer shall act in an advisory capacity to the County Courts of the different counties in the matter of road construction and maintenance whenever requested so to do. This section further specifically provides:

“Upon request of the County Court of any county said engineer shall furnish specifications for any piece of proposed road construction in such county upon being furnished the necessary information and data to enable him to prepare such specifications; and such specifications shall be so furnished free of all costs to such county.”

The latter part of Section 6 is as follows:

“Said engineer may be consulted at all reasonable times by the county officers having care and authority over highways, culverts and bridges, and shall advise such officers relative to the construction, repair, alteration or maintenance of the same, and shall furnish such other information and advice as may be requested by persons interested in the construction or maintenance of public highways, and he shall at all times lend his aid in encouraging and promoting highway improvements throughout the state. Said engineer shall cooperate with all highway officers, and shall assist county authorities in all matters pertaining to the construction of roads when called upon to do so by the County Court.”

Separate and apart from the duties of the engineer relating to the construction of state roads, and the like, as prescribed by the state highway commission, it is plain that the legislature imposed upon that officer the duty of furnishing plans and specifications for proposed road construction, upon the request of the proper County Court, and necessary information and data therefor. Such plans, etc., are to be kept on file in his office. By the terms of the statute this assistance is to be rendered “free of all costs to such county.”- The engineer is directed by law to advise such officers relative to the construction or maintenance of highways and bridges and to furnish such other information and advice as may be requested by “persons interested” in such work. It would seem that persons constructing a highway pursuant to a contract with a county would certainly be interested in such undertaking within the meaning of the statute. Evidently the lawmakers believed that the information and advice provided for would avail nothing unless in case of road contracts it were extended to the contractor and carried out in the construction of the thoroughfare.

4. Not only is the engineer to advise, but Section 6 immediately specifies that he shall co-operate with and assist, county authorities in such matters when called upon to do so, following the policy initiated by the federal government in superintending the construction of certain county roads as samples. The law does not contemplate mere casual advice by the engineer, but rather that he shall on appropriate occasions act in an advisory capacity in building public county roads to an extent sufficient to carry into execution the plan which he has made. It provides for rendering valuable aid to counties in the improvement of public roads with the apparent object of attaining a symmetrical system of highways. An annual tax is ordained to be levied and an appropriation made to effect the purpose of the law. In consonance with the spirit and letter of the statute, the highway engineer made plans, specifications and estimates for the work which were embraced in and made part of the contract with the plaintiffs, by the terms of which under the law that official was made the arbiter of the work in the first instance. In short, pursuant to the statute, he assumed the duties of engineer in the construction of the highway.

5. 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. Indianapolis, 96 Ind. 206; Conn v. Board of County Commrs., 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 G-eneral Laws of Oregon, page 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.”

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 placed under the charge and direction of the state engineer, and, wherever in any law now in force in the State of Oregon the name “state highway engineer” appears, it shall be considered that the name “state engineer” is substituted in lieu thereof. Section 2 directs that all records, maps, drafts and furniture relating to the work and business of the office of state highway engineer shall be transferred and lodged with the state engineer. Section 3 ordains that the chairman of the 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 engineer shall be under the direct supervision 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 perform the duties mentioned; (2) that all that portion of the act of 1915 which attempts to impose upon the chief deputy state engineer the work in the department formerly done by the state highway engineer is void under Article IY, Section 20, of the Constitution, in that the act embraces a subject which is not included in the title, namely, that having reference to the performance of the work in question by the chief deputy, who was designed as a deputy for the state engineer to be 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 long’er 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 literal force, instead of merging the office of highway engineer with that of state engineer, according to the clearly expressed legislative intent, the effect of Chapter 337 would be merely to change the title of the state highway engineer. Such provision is not within the scope of the title of the act. The title of an act defines its scope. It can contain no valid provisions beyond the range of the subject there stated: Sutherland, Stat. Const., § 145. See, also, State v. Levy, 76 Or. 63 (147 Pac. 919); State v. Perry, 77 Or. 453 (151 Pac. 655).

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. Columbia Contract Co., 67 Or. 412 (135 Pac. 536); Kansas P. Ry. Co. v. Commissioners, 16 Kan. 594. It is a rule of statutory construction that, where the first section of a statute conforms to the obvious policy and intent of the legislature, it is not rendered inoperative by unconstitutional 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: Section 20, Article IV, of the Constitution; Endlich, 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). The latter part of Section 3 of Chapter 337, above quoted, is repugnant to Article IV, Section 20, of the Constitution, which provides that:

“Every act shall embrace but one subject, and matters properly connected therewith, which subjects shall be embraced in the title. And if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title”.: Clemmensen v. Peterson, 35 Or. 48, 49 (56 Pac. 1015); Spaulding Log. Co. v. Independence Imp. Co., 42 Or. 397 (71 Pac. 132); Simon v. Northup, 27 Or. 505 (40 Pac. 560, 30 L. R. A. 171).

Therefore the latter part of Section 3 does not relieve the state engineer of the duty thrust upon him by the two acts, nor make the chief deputy an independent official. On the other hand, it would seem that, after two years’ experience, it was deemed wise by the legislative branch of the state government to so change the modus operandi relating to the highway engineer as to provide that the work of that officer should be subject to the supervision of another skilled civil engineer; the object being the centralizing of the responsibilities as recommended in the message of the governor appertaining to that subject, in order to secure a higher state of efficiency and promote economy. That the chief deputy is subordinate to the state engineer is indicated by the words “chief deputy state engineer,” as well as by the provisions of Sections 1 and 2 of the later act. A “deputy” is defined in 13 Cyc. 1043, as follows:

“One appointed as the substitute of another, and empowered to act for him in his behalf or on his behalf; one who is appointed, designated or deputed to act for another; one who occupieth in right of another; and for him regularly his superior will answer; one authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter; one who by appointment exercises an office in another’s right; one who exercises an office, etc., in another’s right having no interest therein, but doing all things in his principal’s name, and for whose misconduct the principal is answerable.”

To the same effect is 3 Words and Phrases, page 2008.

9. The statute referred to imposes upon the state engineer the duties enumerated in Chapter 339 of the Laws of 1913. That official is responsible to the state and parties coming within the terms of the act. The chief deputy state engineer is answerable to his superior.- “No man can serve two masters.’’ Any other arrangement in the premises would naturally lead to chaos.and produce confusion. The state engineer cannot be relieved of the trust reposed in him by the statute, except by the expressed will of the lawmakers, and the order of the highway commission of August 27, 1915, did not have that effect. Legislative power cannot be delegated to a commission: Section 1, Article IV, of the Constitution; Sutherland, Stat. Const. (2 ed.), Section 93; State v. Orange, 60 N. J. Law, 111 (36 Atl. 707).

10. The determination of whether or not a road is completed, and the amount due for the construction thereof, is as much the'carrying into execution of the statute as the enforcement of any of its other provisions. Roads cannot be constructed without compensation.

It being the statutory duty of the state engineer to furnish the required certificate and information, the plaintiffs are entitled to the relief prayed for; otherwise they might be remediless and justice be defeated.

It follows that the demurrer to the writ must be overruled, and it is so ordered.

Demurrer Overruled.

Mr. Justice Eakin did not sit.