315 P.2d 138 (Or. 1957), Dodd v. State Indus. Acc. Commission

Citation:315 P.2d 138, 211 Or. 99
Opinion Judge:LUSK, J.
Party Name:Lamar H. DODD, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
Attorney:C. S. Emmons argued the cause for appellant. On the brief were Hugh B. Collins, Medford, and Willis, Kyle & Emmons, Albany. Earl M. Preston, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assis...
Case Date:September 06, 1957
Court:Supreme Court of Oregon

Page 138

315 P.2d 138 (Or. 1957)

211 Or. 99

Lamar H. DODD, Appellant,

v.

STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon,

Respondent.

Supreme Court of Oregon, En Banc

September 6, 1957

Page 139

[211 Or. 111] Hugh B. Collins, Medford, and Willis, Kyle & Emmons, Albany, for the motion.

LUSK, Justice.

Although no rule of this court provides for a second petition for rehearing, we permitted the filing [211 Or. 112] of this petition because it pointed out an oversight on our part in our opinion denying the first petition for a rehearing 311 P.2d 458. We there said that the sections of the Occupational Disease Law granting to a dissatisfied claimant an appeal to a medical board, whose findings are made final and binding, are not severable from the remainder of the statute, so that, if these sections were to be held unconstitutional, the entire enactment would fall. Counsel for the plaintiff now call our attention to § 13 of Oregon Laws 1943, ch. 442, the Occupational Disease Law as it was originally enacted. Section 13 reads:

'If any section, sentence, clause or word of this act shall be held to be unconstitutional, the validity [invalidity] of such section, sentence, clause or word shall not affect the validity of any other portion of this act, it being the intent of this legislative assembly to enact the remainder of this act, notwithstanding such part so declared unconstitutional should or may be so declared.'

The foregoing provision was in effect at the time plaintiff filed his claim with the commission in 1951, and at the time that he took his attempted appeal by filing a complaint in the circuit court on June 16, 1953. But it was not in effect at the time this case was heard and decided in the circuit court in January 1956. It ceased to be a part of the Occupational Disease Law when Oregon Revised Statutes became effective on August 3, 1955, for it was omitted from the revision. See ORS 656.802-656.990. There is, however, a general severability statute which, since the effective date of ORS, has been applicable to the Occupational Disease Law. This is ORS 174.040 (Oregon Laws 1951, ch. 314, § 4), which reads:

'It shall be considered that it is the legislative intent, in the enactment of any statute, that if any [211 Or. 113] part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

'(1) The statute provides otherwise;

'(2)...

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