Whipple v. Howser

632 P.2d 782, 291 Or. 475

Opinions

TONGUE, J.

This is a civil action for damages arising from a two-car accident. Plaintiff was a passenger in one of the cars and named as defendants the owner and driver of the other car. Those defendants filed a third party complaint naming as a third party defendant the driver of the car in which plaintiff was a passenger and alleging that any injuries suffered by plaintiff were the result of negligence by the driver of the car in which she was a passenger and, therefore, if a judgment were returned against them they were entitled to contribution from third party defendant.¹

The trial court allowed a motion to strike that third party complaint upon the ground that at the time this accident occurred in 1978, Oregon’s Guest Passenger Act, ORS 30.115,² required an allegation of gross negligence or intoxication, rather than ordinary negligence, for recovery in actions by passengers against owners or operators of motor vehicles and that the repeal of that Act by the Oregon legislature in 1979 with regard to motor vehicles³ was not intended to apply retroactively to actions which had “accrued” at the time the repeal became effective, but which were “commenced” after the effective date of that Act. The Court of Appeals affirmed the trial court. 51 Or App 85, 624 P2d 648 (1981). We allowed the petition for review because of the importance of the question whether retroactive effect must be given to the repeal of the Guest Passenger Act with respect to motor vehicles which had “accrued” before the effective date of that repeal, but had not been “commenced” until after the effective date of that repeal, and the apparent confusion among trial courts in deciding that question.

Or Laws 1979, ch 866, which repealed the Guest Passenger Act as it applied to motor vehicles, includes the following “savings clause.”

“Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act.” (Emphasis added)

In allowing the motion to strike defendants’ third party complaint, the trial court relied upon the decision by this court in Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1969), in ruling that the repeal was not retroactive as to actions which had been “commenced” after the effective date of that repeal, if such actions had “accrued” prior to that date. The Court of Appeals, by a 7-3 decision, affirmed. The majority of that court also based its decision upon Smith v. Clackamas County, supra, believing it to be controlling. 51 Or App at 90.

In Smith this court was called upon to interpret a “savings clause” essentially the same as in this case and held that the statute in question in that case was not to be applied retroactively to actions which had “accrued,” but had not yet been “commenced” at the effective date of that statute. In reaching that conclusion the court relied primarily upon a “rule” of statutory construction to the effect that when an amendment is made to a “substantive” statute, as was the case in Smith, as opposed to a “procedural” statute change, the statute “is presumed not to be retroactive, and such a statute will not be applied retroactively unless the language of the statute absolutely requires such application.” 252 Or at 235. The majority opinion by the Court of Appeals also applied this “substantive-procedural” distinction, which it referred to as a “rule of statutory construction,” in reaching the same result as in Smith. 51 Or App at 90.

Three Court of Appeals judges dissented, contending that the “overriding consideration” in determining whether a statute should be applied retroactively is the intent of the legislature and that the language of the “savings clause” in the present case expressed an intent to apply the statute retroactively to actions which had been “commenced” after the effective date of the Act, regardless of when such actions had “accrued.” They further questioned the validity of the decision in Smith. 51 Or App at 90 to 96.

In deciding the question presented for decision in this case, it must first be kept in mind that when construing any statutory provision the duty of this court is to “discern and declare the intent of the legislature.” Fifth Ave. Corp. v. Washington County, 282 Or 591, 596, 581 P2d 50 (1978); See also ORS 174.020.

The starting point in every case involving a determination of legislative intent is the language of the statute itself. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 US 322, 330 (1978). This need to look first to the language of the statute has been frequently recognized by this court. In Swift & Co. and Armour & Co. v. Peterson, 192 Or 97, 233 P2d 216 (1951), we said (at 108):

“The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained.”

Accord, State of Oregon v. Buck, 200 Or 87, 92, 262 P2d 495 (1953).

More specifically, in State ex rel Cox v. Wilson, 277 Or 747, 562 P2d 172 (1977), we held (at 750) that:

“ ‘There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.’ ” Quoting United States v. American Ass’ns, 310 US 534, 542-44, 60 S Ct 1059, 84 LEd 1345 (1940).

As also held in Lane County v. Heintz Const. Co. et al, 228 Or 152, 157, 364 P2d 627 (1960), quoting with approval from Barrett v. Union Bridge Co., 117 Or 566, 570, 245 P 308, 45 ALR 527 (1926):

“Section 715, Or. L. [now ORS 174.010], directs that the courts in the construction of statutes, are ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted. ’ We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it. ” (Emphasis added)

Barring constitutional limitations, the legislature may impose any special conditions it desires upon its enactments. Moreover, this court has recently held that, with the exception of ex post facto laws,⁴ there is no constitutional bar to the legislature providing that its laws be applied retroactively. See Hall v. Northwest Outward Bound School, 280 Or 655, 572 P2d 1007 (1977). Thus, in determining whether to give retroactive effect to a legislative provision, it is not the proper function of this court to make its own policy judgments, but its duty instead is to attempt to “discern and declare” the intent of the legislature.

This duty of the court to “discern and declare” the intention of the legislature has also been recognized by this court in the retroactive application of statutes on a number of occasions.

Again, in Joseph v. Lowery, 261 Or 545, 495 P2d 273 (1972), we held (at 552) that:

“[I]t is the legislature’s intent that governs. Legal rules relating to retroactive and prospective application of statutes are merely rules of construction by which the court attempts to ascertain the probable legislative intent.” (Emphasis added)

To the same effect, see Hemstreet v. Warlick, 281 Or 579, 586 n. 3, 576 P2d 1 (1978); Spicer v. Benefit Ass’n of Ry. Emp., 142 Or 574, 593, 17 P2d 1107, 21 P2d 187 (1933). See also Mahana v. Miller, 281 Or 77, 80-81, 573 P2d 1238 (1978).

Sometimes, however, it is impossible to “discern” the intent of the legislature regarding retroactivity or other matters from the language of the statute itself. For that reason, a number of “rules” or “maxims” of statutory construction have been developed to aid the courts in such cases in determining probable legislative intent as to whether a statute should be applied retroactively. We have held, however, that such “rules” or “maxims” of statutory construction are not to be resorted to if the language of the statute itself expresses the intent of the legislature. See State ex rel Appling v. Chase, 224 Or 112, 116, 355 P2d 631 (1960); Curly’s Dairy, Inc. v. State Dept. of Agriculture, 244 Or 15, 20, 415 P2d 740 (1966). See also Roy L. Houck & Sons v. Tax Com., 229 Or 21, 30-31, 366 P2d 166 (1961).

The reason for not resorting to such “rules” or “maxims” of statutory construction when the statute’s language itself shows legislative intent is that such “rules” or “maxims” are not intended to be devices by which this court may substitute its own judgment for that of the legislature when its intent is not clearly expressed by the terms of a statute, but rather are meant to be “aids” by which the court may perform its duty to “discern and declare” the intention of the legislature when the language of a statute does not clearly express it. As also stated in Perkins v. Willamette Industries, 273 Or 566, 570-71, 542 P2d 473 (1975):

“Essentially, determining whether a particular statute was meant to apply prospectively or retrospectively is a matter of ascertaining the intent of the legislature. In the absence of an explicit indication of that intent, it is our duty to determine the legislature’s probable intent. Although it is sometimes said that remedial and procedural statutes are normally applied retroactively (citing cases) that rule is merely a rule of construction. Like other rules of construction, it is not conclusive but only a guide to proper interpretation of the statute. ” (Emphasis added)

To the same effect, see Joseph v. Lowery, supra, at 552. Thus, there is no need to resort to the less precise method of attempting to ascertain legislative intent by the application of “rules” or “maxims” of statutory construction when the language of the statute itself reveals the intent of the legislature.

Indeed, it has been said of “rules” or “maxims” of statutory construction that:

“Each of these common sense approaches fits some cases but not others, each has ‘exceptions’ and opposite-and-equal counterparts, and each causes more harm than it is worth if it is not cheerfully ignored whenever it is an obstacle to understanding what the legislature enacted.

“References to ‘rules,’ ‘maxims’ or ‘aids’ to statutory construction might pass as merely a difference in the style of opinions, which is a personal matter, if it were not for the risk that they will be mistaken by courts and counsel as directives for how to argue and decide statutory questions. Experience shows that such statements in prior opinions interpreting one particular statute are quoted back to us, and presumably to the trial courts and the Court of Appeals, as authority for interpreting another statute by applying the stated rules or maxims. If these seemingly authoritative statements of juristic method do not actually govern decisions on statutory interpretation, as in fact they do not, a party’s reliance on them is not only a waste of time but may divert counsel and courts from a more fruitful line of inquiry into the particular legislation at issue.” Davis v. Wasco IED, 286 Or 261, 274-75, 593 P2d 1152 (1979) (Linde, J., concurring).

To the same effect, see Denecke, Prologue, 16 Willamette Law Review 183, 187 (1979); Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 V and L Rev 394, 401-06 (1950).

In this case both parties have cited “rules” or “maxims” of statutory construction which arguably support their respective contentions whether the present statute should or should not have a retroactive effect upon actions which were “commenced” after the effective date of the act repealing the Oregon Guest Passenger Act in its application to motor vehicles, but which have “accrued” prior to that date. Indeed, these conflicting contentions only reinforce the above-stated and well-established principle that the duty of this court is to “discern and declare” the intention of the legislature; that in the performance of that duty the court must look first to the language of the statute and if that language expresses the probable legislative intent, this court need not resort to “rules” or “maxims” of statutory construction. Again, see Perkins v. Willamette Industries, supra, at 570-71, and Joseph v. Lowery, supra, at 552.

The repeal of the Guest Passenger Act with regard to motor vehicles was passed as part of Or Laws 1979, ch 866 (formerly Senate Bill 422).⁵ As previously stated, that statute includes the following “savings clause”:

“Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act.” (Emphasis added)

This “savings clause” expressly states that the new law is not to apply to actions “commenced” before the Act’s effective date (October 3, 1979). Obviously, before an action could be “commenced” before that date the action must have “accrued” before that date. The express language of the “savings clause” is silent, however, with regard to the question that must be resolved in this case: whether the Act was intended to have retroactive effect to actions “accrued,” but not “commenced,” before the effective date of the Act.

This court has twice previously interpreted statutes with similar “savings clause” provisions. In Spicer v. Benefit Assn. of Ry. Emp., supra, the “savings clause” read:

“The terms of this act shall not apply to any suit or action started or begun prior to the passage of this act.” (Emphasis added)

In construing that “savings clause” this court held that the statute was intended to apply retroactively to actions “accrued,” but not “commenced.” In reaching that result this court did not rely upon “rules of statutory construction,” but held (at 593):

“* * * the paramount purpose of all rules of statutory construction is not to achieve some preconceived arbitrary objective, but to give effect to the legislative purpose. In the present instance the 1931 amendment indicates that the legislature itself considered and determined the manner in which the new law should be applied. The act provides: ‘The terms of this act shall not apply to any suit or action started or begun prior to the passage of this act.’ Thus, it is evident that the legislature intended that the act should be applied to all existing rights except those only which had already become the subject-matter of suits or actions.”

Again, in Smith v. Clackamas County, supra, the court interpreted a “savings clause” similar to that in this case, which read:

“This Act shall not affect any action, suit or proceeding commenced prior to and pending on the effective date of this Act.”

In that case, however, the court held that the statute was not to be applied retroactively, even though the court recognized that the wording of that “savings clause” “tends to imply a legislative intent to exclude related matters not mentioned.” 252 Or at 233. The court nevertheless concluded that it could not find a “logical reason” for distinguishing between actions “accrued,” but not “commenced,” and stated that “in the absence of some logical reason for a distinction, there is no basis for an inference that the Assembly intended to draw a distinction between actions filed by a certain date and actions accrued but not filed by that date.” 252 Or at 233-34.

The court then attempted to distinguish Spicer, supra, by saying (at 234-35) that Spicer was premised upon the rule of statutory construction that statutes involving procedural changes, such as the statute in Spicer, are to be applied prospectively, while statutes involving substantive changes, such as in Smith, are presumed not to be applied retroactively “unless the language of the statute absolutely requires such application.”

More recently, however, this court in Joseph v. Lowery, supra, again discussed its previous decision in Spicer, and its interpretation of that decision was different from that attempted in Smith. Thus, in Lowery, this court examined the “savings clause” interpreted in Spicer and held as follows (at 552-53):

“That case applied a statute retroactively which permitted an award of attorney fees in the Supreme Court in a successful action against an insurance company on its policy. The intent of the legislature was clear that the statute should be applied to all existing rights, exepting only those which were already the subject matter of a suit or action when the statute became effective, because the act provided that its terms should ‘not apply to any suit or action started or begun prior to the effective date of this act.’ The case’s decision on retroactivity, therefore, is not inconsistent with the non-retroactive application of the statute presently under consideration, although for limited purposes, Spicer treated attorney fees as costs and, therefore, as remedial in nature.” (Emphasis added)

See also Perkins v. Willamette Industries, supra, at 570-71, as previously quoted.

We agree with Lowery that a reading of Spicer reveals that in holding that the statute in question was to be applied retroactively, the court was relying not on the “procedural-substantive” “rule” or “maxim” of statutory construction as contended by Smith, but upon what it believed to be a clear statement of legislative intent in the language of the “savings clause.”

In addressing the “savings clause” now before us, we adhere to the reasoning as set forth in Spicer, and as affirmed in Lowery, to the effect that the language of this “savings clause” is a clear statement of an intent by the legislature to apply the statute retroactively to actions which had been “commenced” after the effective date of the Act, regardless of when such actions had “accrued.” Although the statute may not expressly state such an intent, we believe that such an intent is the logical inference to be drawn from the language of the statute. Inclusion of the “savings clause” demonstrates that the legislature was concerned with the effect of applying the law retroactively. By specifically stating and emphasizing that the statute shall not apply to actions “commenced” before the effective date of the statute, the most reasonable assumption is that the legislature believed that the statute would apply to actions “commenced” after the effective date of that statute, regardless of when such actions had “accrued.” Further, a contrary interpretation would render the “savings clause” in this particular statute generally meaningless, because if the legislature had intended that the statute not be applied retroactively to actions “accrued” but not “commenced,” it would go without saying that the statute would not be applied retroactively to actions “accrued” and “commenced.”

Had the legislature intended that the Act also apply to actions or proceedings which had “accrued” before the effective date of that Act, as well as those “commenced” prior to that date, it would have been a simple matter to add the word “accrued,” so as to read:

“This Act does not apply to an action or other proceeding which accrued or commenced before the effective date of this Act.”

The fact that the legislature did not do so is strong evidence, in our opinion, that the legislature intended to apply the repeal of the Guest Passenger Act in its application to motor vehicles to actions “commenced” after the effective date of the Act, but which “accrued” prior to that date. As previously stated, we must bear-in mind that the legislature itself has provided by the terms of ORS 174.010 that the duty of the court is “simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; * * *.” (Emphasis added).

Such a result may appear to some to be an unreasonable result. The same may be said, however, of distinctions imposed by the application of many statutes, such as those imposed by the various statutes of limitations. See ORS 12.010 et seq. Again, however, the duty of this court is to “discern and declare” the intention of the legislature, rather than to impose upon the parties to this case its own policy judgment in an effort to arrive at a result which may appear to the court to be a more “reasonable” result.

In holding as we do, we do not abandon the “rules” or “maxims” of statutory construction that have been developed for application in cases in which the court cannot otherwise “discern and declare” the intention of the legislature and in which such “rules” or “maxims” may be of aid to the court in determining the probable intent of the legislature. We hold, however, that when, as in this case, the language of a statute is sufficiently clear so as to reveal the legislature’s intent, it is both unnecessary and improper to resort to such “rules” or “maxims” of statutory construction. Therefore, to the extent that Smith v. Clackamas County, supra, is inconsistent with our holding in this case that decision is overruled.⁶

For these reasons, the decisions of the Court of Appeals and trial court are reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

Footnotes

1

More specifically, the facts of this case are set forth by the Court of Appeals as follows:

“On October 21, 1978, plaintiff was a passenger in a vehicle driven by Monique Behrendt which was involved in a collision with a vehicle owned by one defendant and operated by the other. On February 27, 1980, plaintiff filed an action seeking damages from defendants for personal injuries she allegedly suffered due to their negligence. On April 7, 1980, defendants filed an answer to plaintiffs complaint and, pursuant to ORCP 22C, a third party action against Monique Behrendt. As third party plaintiffs, they alleged that third party defendant Behrendt’s negligence proximately contributed to and caused plaintiffs injuries. They further alleged that if a judgment was returned against them, they were entitled to contribution from third party defendant.

“Pursuant to ORCP 21A, third party defendant moved to dismiss that complaint. Specifically, she argued that at the time of the accident, ORS 30.115 barred any recovery by plaintiff and, therefore, third party plaintiffs, absent either an allegation in the third party complaint of her gross negligence or that plaintiff was a ‘paying’ passenger in her vehicle at the time of the accident. Since the third party plaintiffs’ complaint contained neither allegation, third party defendant argued that it failed to state a cause of action.”

2

At the time of the accident upon which plaintiff based her action in this case, ORS 30.115 provided, in pertinent part:

“No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. * *

3

As amended by Or Laws 1979, ch 866, § 7, ORS 30.115 presently provides:

“No person transported by the owner or operator of an aircraft or a watercraft as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. * * *.

‡ ‡ ‡

4

See Oregon Constitution, Art. I, § 21.

5

Senate Bill 422 was actually a products liability bill to which the repeal of the Guest Passenger Act was attached after a separate guest passenger bill (HB 2306), which had passed the House, died in Senate committee. The original House bill had a savings clause which would have applied the Act only to “causes of actions, claims, rights or liabilities occuring” after October 3, 1979. The “savings clause” that was eventually enacted was part of the original products liability bill prior to the amendment adding on the guest passenger repeal. Neither this court nor the parties in this case have been able to find any legislative history that might help explain the legislative intent behind the present “savings clause.”

6

With respect to the dissenting opinion, we would simply note that:

1. The dissent relies primarily upon Smith v. Clackamas County, 252 Or 230,448 P2d 512 (1969), which held that a similar “savings clause” was not to be applied retroactively under a “substantive” statute.

2. We do not agree with the reasoning of Smith in reaching that result, however, because:

a. Smith would make the “substantive-procedural” distinction controlling (1) unless there is “some logical reason” for retroactive application of a “substantive” statute, and (2) “unless the language of the statute absolutely requires (retroactive) application.” (252 Or at 233-35).

b. Although this court has not abandoned the substantive-procedural distinction for application to statutes in which the legislative intent is not expressed, we subsequently held that this distinction is “merely a rule of statutory construction” and one which is “not conclusive,” but “only a guide” to proper interpretation of statutes, and that such “rules” or “guides” are only to be applied in the interpretation of statutes in which the legislative intention has not been expressed. See Perkins v. Willamette Industries, 273 Or 566, 570, 542 P2d 473 (1975), and other cases cited in the opinion.

c. Other “rules” or “maxims” of statutory interpretation do not (1) require the court to apply a “logical reason” test, which introduces a new element of uncertainty and one depending upon the subjective value judgment of the particular court, or (2) forbid retroactive application of a statute “unless the language of the statute absolutely requires such application.”

3

. This is not a case in which the statute involved includes no expression of legislative intent. The “savings clause” in this statute not only shows that the legislature was concerned with the question of its retroactive application, but expressly states that it will not apply to actions “commenced” before its effective date. For reasons stated in this opinion and as also previously stated by this court in Spicer v. Benefit Ass’n of Ry. Emp., 142 Or 574, 593, 17 P2d 1107, 21 P2d 187 (1933), we believe that these words sufficiently demonstrate a legislative intent that the retroactive application of this statute was to be barred only with respect to actions “commenced” prior to its effective date, and not to actions which “accrued” prior to that date.