First State Bank of Sutherlin v. Kendall Lumber Corp.

• Decision Date: 06 March 1923
• Citation: 107 Or. 1,213 P. 142
• Parties: FIRST STATE BANK OF SUTHERLIN v. KENDALL LUMBER CORPORATION ET AL. [*]
• Court: Oregon Supreme Court

213 P. 142

107 Or. 1

FIRST STATE BANK OF SUTHERLIN v. KENDALL LUMBER CORPORATION ET AL. ^[*]

Supreme Court of Oregon

March 6, 1923

In Banc.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Suit by the First State Bank of Sutherlin against the Kendall Lumber Corporation, and others. Decree for defendants and plaintiff appeals. Reversed and remanded.

Burnett J., dissenting.

B. L. Eddy, of Roseburg (George Neuner, Jr., of Roseburg, on the brief), for appellant.

Dexter Rice, of Roseburg (Rice & Orcutt, of Roseburg, on the brief) for respondents.

RAND J.

This suit was brought to foreclose a certificate of delinquency issued pursuant to the provisions of chapter 247, Laws of 1913, comprising sections 8970-8974, Or. L. This act is entitled, "An act to require owners of timber lands to provide a fire patrol therefor," and reads as follows:

"Section 1. Every owner of timber land in the state of Oregon shall furnish or provide a sufficient fire patrol therefor. during the season of the year when there is danger of forest fires, which patrol shall meet with the approval of the State Board of Forestry.

"Sec. 2. In case any owner or owners shall fail or neglect to provide such fire patrol, then the State Forester under direction from the State Board of Forestry, shall provide the same at a cost not to exceed five (5) cents per acre per annum. Any amounts so paid or contracted to be paid by the State Forester, shall be a lien upon the property, and shall be reported by the State Forester to the county court of the county in which such lands are situated, and shall by such court be levied and collected with the next taxes on such lands in the same manner as taxes are collected. Said county court shall instruct the proper officer to extend the amounts on the assessment roll in a separate column, and the procedure provided by law for the collection of taxes and delinquent taxes shall be applicable thereto, and upon collection thereof, the county court shall repay the same to the State Forester to be applied to the expenses incurred in carrying out the provisions of this act.

"Sec. 3. For the purposes of this act, any land shall be considered timber land which has enough timber standing or down, to constitute, in the judgment of the State Board of Forestry, a fire menace to itself or adjoining lands.

"Sec. 4. The owner of any land coming under the provisions of this act, who shall reside within one and one-half miles of said land, shall be considered, by virtue of said residence, to maintain a sufficient fire patrol, and shall not be compelled to maintain additional patrol on such land.

"Sec. 5. For the purposes of this act, an adequate fire patrol shall be construed to mean one equal to that maintained by 50 per cent. of timber owners in the same locality, or under similar conditions in other localities who are in good faith patrolling their lands against fire."

The respondents, who were the defendants in the court below, attack the constitutionality of this act upon four grounds. These objections are stated in their brief as follows:

"(1) That said act embraces more than one subject matter not expressed in the title of the act.

"(2) That it is an attempt to take the property of the defendant without due process of law, in this, that said act attempts to provide for the levying and collection of an assessment against the property of the defendant without providing defendant any opportunity at any stage of the proceedings to be heard in the matter, and said act fails to provide for any notice to the taxpayers whatever, or to afford him any opportunity for hearing.

"(3) That said act is unconstitutional for the reason it is class legislation, in this, that it permits 50 per cent. of the timber owners in any locality to determine what constitutes an adequate fire patrol, and is also an attempt by the Legislature to delegate legislative authority to the owners of 50 per cent. of the timber in a given locality.

"(4) That said chapter 247 does not provide for a uniform and equal rate of taxation, but, on the contrary, exempts some owners and permits other owners to determine what constitutes an adequate fire patrol, and leaves the same matter in other cases to be determined by the State Forester."

The lower court held that this act was unconstitutional, and that certificates of delinquency issued pursuant thereto were unauthorized and void. The correctness of this ruling is the only question involved on this appeal.

A careful reading of this act will disclose, we think, that it is not in contravention of article 4, § 20, of the organic act, which provides that--

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title," ect.

Probably no other clause in the Constitution of the state has been more often considered by this court, and the meaning thereof more definitely established, than the one referred to. This provision "was adopted," said Mr. Chief Justice Wolverton, speaking for the court in Clemmensen v. Peterson, 35 Or. 47, 56 P. 1015, "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." In that case the act under consideration was entitled, "An act to reincorporate the town of Marshfield" (Laws 1889, p. 404), and it was urged that a provision in the charter conferring power upon the recorder to act as a justice of the peace was not germane to the subject-matter expressed in the title. In disposing of that question, Mr. Justice Wolverton said:

"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 legislative, police, and judicial powers, and other governmental functions apposite and requisite to the promotion and maintenance of the organization. Now, it would seem that the design of section 66 of the reincorporating act was to confer judicial power upon the recorder, a function appertaining to the city government, and therefore cognate to the purpose of the incorporation, and not in contravention of the provision of the Constitution in article IV, § 20. * * * It may be said that a city could carry on its municipal government without the assistance of a justice of the peace; yet, in making provisions touching the judicial department of its government, it has been usual, in this state, to extend such power to the recorder, and it is not believed to be foreign to the subject-matter of the act of incorporation."

In State v. Shaw, 22 Or. 287, 29 P. 1028, where the title to the act under consideration read:

"An act to protect salmon and other food fishes in the state of Oregon and upon all waters upon which this state has concurrent jurisdiction, and to repeal sections."

The body of the act contained a provision making it unlawful to cast sawdust into any stream. The defendant was indicted for depositing sawdust in a stream in violation of the provisions of the act, and it was urged that the inclusion of this provision was in violation of the clause of the Constitution now under consideration. In delivering the opinion of the court, Mr. Justice Bean cited numerous authorities, and in support thereof said:

"If all the provisions of the law relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not be held unconstitutional as in violation of this clause of the Constitution. * * * This clause is not violated by any legislative act having various details properly pertinent and germane to one general object. The question is, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. The general object and purpose of the act in question here is to protect salmon and other food fishes; and whatever means may tend directly or indirectly to accomplish this object, may be properly included in the act."

Again, through Mr. Justice Bean, this court said, in Simon v. Northup, 27 Or. 487, 40 P. 560, 30 L. R. A. 171:

"The subject or general object of the law in question, as expressed in its title, is the acquisition, control, and management of certain specified bridges and ferries across the Willamette river at Portland, and the details by which it is to be accomplished are matters properly connected therewith, and do not constitute more than one subject within the meaning of the Constitution."

In Corvallis & Eastern R. Co. v. Benson, 61 Or. 359, 121 P. 418, the act under consideration was entitled, "An act to provide for the construction of the Willamette Valley & Coast Railroad." The act itself contained a provision granting certain tidelands belonging to the state to the railroad company, and authorized the company to mortgage them under certain conditions for the purpose of raising funds for the construction of the road. It was argued in that case that the grant was not germane to the subject embraced in the title. This court, through Mr. Justice Burnett, said:

"It is not necessary that the title to an act should be as full and complete in its terms as the act itself. It is enough if the title is a fair index of the general purposes of the proposed law. The details may properly be worked out in the body of the act. They are not necessarily a part of the title. Every intendment is in favor of the constitutionality of an act of the Legislative Assembly; and if, by any fair inference, the terms of the statute may be found to be cognate to the terms of the title the law will stand, and will not be declared

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