In re Wagner's Estate

• Decision Date: 31 March 1931
• Citation: 297 P. 343,135 Or. 615
• Parties: IN RE WAGNER'S ESTATE. v. WAGNER ET AL. BRUGGER
• Court: Oregon Supreme Court

297 P. 343

135 Or. 615

IN RE WAGNER'S ESTATE.

BRUGGER v. WAGNER ET AL.

Supreme Court of Oregon

March 31, 1931

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Will contest by Martha Brugger against Emil A. Wagner, as executor under the last will and testament of Amelia Wagner, deceased and another. From the judgment, contestant appeals.

Appeal dismissed.

Walter B. Gleason, of Portland, for appellant.

Emil Slovarp, of Portland, for respondents.

BEAN C.J.

This cause was dismissed on motion of respondent for the reason that the transcript of record was not filed within thirty days after the appeal was perfected, and that no valid order extending the time for filing such transcript was made, and that there was no compliance with section 7-507, Oregon Code 1930. Appellant petitions for a rehearing.

It appears that at the proper time appellant obtained several orders of the trial court extending the time for filing the transcript, but all were without notice to the opposing party, as provided for in subdivision 2 of section 7-507, Oregon Code 1930. See Simpson v. Winegar, 122 Or. 297, 258 P. 562; City of Portland v. Richardson, 127 Or. 455, 272 P. 259.

Appellant now contends that that portion and subject of subdivision 2 of section 1 of chapter 316, p. 404, General Laws of Oregon 1927 (now codified as section 7-507, Oregon Code 1930) providing as follows: "And only after three days' notice has been given to the opposing party," is invalid and void for the reason that the title of said chapter 316 supra, which reads as follows: "An act to amend section 554, Oregon Laws, providing for the filing of transcripts on appeal, defining such transcripts, and providing for the filing of bills of exceptions and other records on appeal, and declaring an emergency," fails to express in said title the aforesaid subject embraced in said act, and therein and herein-above set forth and herein assailed as invalid and void, that the title of the act amended, of which section 554, Oregon Laws, was the codification, is found as chapter 320, p. 618, General Laws of Oregon 1913, and reads as follows: "An act to amend Section 554 of Lord's Oregon Laws," and that the said provision of subdivision 2 of section 1 of chapter 316, General Laws of Oregon for 1927, to wit, "and only after three days' notice has been given to the opposing party," is invalid and void, in that provisions of an amendatory act which are beyond the title of the amended act are void.

Section 20, art. 4, of the Constitution of Oregon, ordains as follows: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."

This provision of the Constitution is mandatory, and legislation, in order to be valid, must comply therewith. State v. Shaw, 22 Or. 287, 289, 29 P. 1028; State v. Hawks, 110 Or. 497, 222 P. 1071. Under section 20, art. 4, of the Constitution, although the act may embrace but one subject and matters properly connected therewith, it is not essential that the title constitute an index to all the matters contained in the act. State v. Slusher, 119 Or. 141, 248 P. 358.

The title of chapter 316, p. 404, General Laws of Oregon for 1927, codified as section 7-507, Oregon Code 1930, which is now assailed, purports to amend section 554, Oregon Laws providing, inter alia, for the filing of the transcript. The provision of the act relating to the time of filing the transcript upon appeal is unquestionably germane to that part of the title "providing for the filing of transcripts on appeal." The act prescribes the time in which the transcript must be filed and in subdivision 2 of section 7-507, provision is made for an order extending such time. Then comes the provision, "But such order shall be made within the time allowed to file transcripts, and only after three days' notice has been given to the opposing party." ...