Clemmensen v. Peterson

• Decision Date: 24 April 1899
• Parties: CLEMMENSEN v. PETERSON et al.
• Court: Oregon Supreme Court

56 P. 1015

35 Or. 47

CLEMMENSEN v. PETERSON et al.

Supreme Court of Oregon

April 24, 1899

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Special proceeding by Lars Clemmensen against August Peterson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

E.B Watson, for appellant.

John F Hall, for respondents.

WOLVERTON C.J.

This is a special proceeding for review of the decision of W.H.S Hyde, the duly-electer recorder of the town of Marshfield, sitting ex officio as justice of the peace, in an action for the recovery of personal property, wherein August Peterson was plaintiff and Lars Clemmensen was defendant. Two questions are involved. It is contended, in the first place that the act of the legislature wherein provision is made for the election of a recorder of the town of Marshfield is neither potent nor efficacious to empower that officer to act in the capacity or to perform the functions of a justice of the peace. The act is entitled "An act to reincorporate the town of Marshfield, Coos county, Oregon." Sess.Laws 1889, p. 404. Section 56, under which Hyde assumed this authority, reads as follows: "The recorder is the judicial, accounting and clerical officer of the town. He is the judge of the recorder's court and justice of the peace within the corporate limits, and as such can exercise within said town limits any and all powers conferred by the laws of this state to a justice of the peace, the clerk of both of said courts, and auditor of accounts and demands against the town, and clerk of the board of trustees, and may by ordinance be made town assessor."

It is thought the power thus attempted to be conferred upon the recorder, to act in the capacity or to discharge the duties of a justice of the peace, under the general laws of the state, within the limits of the town, is in derogation of section 20 of article 4 of the constitution, whereby it is provided that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title"; and it is urged that the conferring of such jurisdiction upon the recorder is without the purview and not germane to the subject expressed in the title of the act. The purpose of this clause of the constitution is well understood, and it was adopted to prohibit the legislature from combining in one act subjects wholly incongruous, diverse in their nature, and having no perceptible or necessary connection with each other, and to obviate the practice of inserting in an act clauses involving matter of which the title is not calculated or adequate to give or convey any intimation. Thus, it was designed by the framers of the constitution that in every case the proposed measure should stand upon its own merits and that the legislature should be fairly satisfied of its purpose by an inspection of the title, when required to pass upon it, so as not to be surprised or misled by the subject which the title purported to express. State v. Shaw, 22 Or. 287, 29 P. 1028; Cooley, Const. Lim. (5th Ed.) pp. 142, *143. The question here is whether conferring power upon the recorder to act as a justice of the peace is germane to the subject-matter expressed in the title of the act. The purpose of the incorporation of towns and cities is to provide a system of local self-government. This comprehends investing them with the ordinary powers incident to such institutions, comprising...