Dodd v. State Indus. Acc. Commission

Citation315 P.2d 138,211 Or. 99
PartiesLamar H. DODD, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
Decision Date06 September 1957
CourtSupreme Court of Oregon

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 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for the plaintiff now call our attention to § 13 of Oregon Laws 1943, ch. 442, the Occupational Disease Law as it was originally enacted.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 part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

'(1) The statute provides otherwise;

'(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or

'(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.'

In Gilbertson v. Culinary Alliance, 204 Or. 326, 353, 282 P.2d 632, 645, we said of this section, 'Substantially, these are the same rules applied by the courts in the absence of statute.' To this statement was cited Fullerton v. Lamm, 177 Or. 655, 697, 163 P.2d 941, 165 P.2d 63, which was also cited in our opinion denying the first petition for rehearing.

Further consideration of the question of severability in the light of this change in the statute leads us to the conclusion that no opinion upon this subject should be expressed at this time. Section 13 and ORS 174.040 appear not to mean precisely the same thing, and a question would be presented as to which of the two statutes governs this case, because the claim arose when the former was in effect, but was will undetermined at the time that the latter became applicable to the Occupational Disease Law. We therefore withdraw the statement that the review provisions of the law are not severable.

We remain of the opinion, however, that the case was properly decided and that, notwithstanding counsel's insistence to the contrary, we should not now pass upon the constitutionality of the review provisions of the Occupational Disease Law. Constitutional questions will not ordinarily be determined by this court unless their determination is essental to the disposition of the case. State ex rel. Bushman v. Vandenberg, 203 Or. 326, 329, 276 P.2d 432, 280 P.2d 344.

This case was not commenced in the circuit court as a proceeding under the Occupational Disease Law, but as an attempted appeal from a decision of...

To continue reading

Request your trial
13 cases
  • State v. Jackson
    • United States
    • Oregon Supreme Court
    • October 19, 1960
    ...law rule of construction in this state. Dodd v. State Industrial Accident Commission, 1957, 211 Or. 99, 112, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138. It is apparent that ORS 167.150 goes far toward exhausting the limits of constitutional power in dealing with obscene and other undesirable ......
  • Dilger v. School Dist. 24 CJ
    • United States
    • Oregon Supreme Court
    • May 25, 1960
    ...v. McKennon, 1959, 215 Or. 562, 336 P.2d 340; Dodd v. State Industrial Accident Commission, 1957, 211 Or. 99, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138; Fullerton v. Lamm, 1946, 177 Or. 655, 163 P.2d 941, 165 P.2d 63; State v. Terwilliger, 1933, 141 Or. 372, 11 P.2d 552, 16 P.2d 651; State e......
  • City of Idanha v. Consumers Power, Inc.
    • United States
    • Oregon Court of Appeals
    • March 30, 1972
    ...5 and 6 does not affect the remainder of the ordinance. Dodd v. State Ind. Acc. Comm., 211 Or. 99, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957). VI Defendant challenges the constitutionality of Ordinance No. 6 asserting that it violates the equal protection and due process clauses of the......
  • Seale v. McKennon
    • United States
    • Oregon Supreme Court
    • March 11, 1959
    ...this court. ORS 174.040; Dodd v. State Industrial Accident Comm., 211 Or. 99, 111, 310 P.2d 324, on petition for rehearing, 311 P.2d 458, 315 P.2d 138; State v. Hunter, 208 Or. 282, 288, 300 P.2d 455; Gilbertson v. Culinary Alliance, 204 Or. 326, 352, 282 P.2d Another matter disclosed by th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT