Kelsey v. Norblad

• Decision Date: 14 April 1931
• Citation: 298 P. 199,136 Or. 76
• Parties: KELSEY v. NORBLAD, GOVERNOR, ET AL.
• Court: Oregon Supreme Court

298 P. 199

136 Or. 76

KELSEY v. NORBLAD, GOVERNOR, ET AL.

Supreme Court of Oregon

April 14, 1931

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Suit by R. C. Kelsey, in behalf of himself and all others similarly situated, against A. W. Norblad, as Governor of the state of Oregon, and others. Decree for the defendants, and the plaintiff appeals.

Reversed and cause remanded, with instructions.

The plaintiff, who is engaged in the business of transporting freight for hire by means of licensed motortrucks and trailers over the highways of this state, instituted this suit for the purpose of securing a decree to restrain the defendants from arresting him for any alleged violation of chapter 438 of 1929 Session Laws, based upon the fact that his four-wheel trucks and their trailers, together with the quantities of freight carried by the same, at times constitute a weight of 44,000 pounds at the point of contact of the eight wheels with the surface of the highway. The complaint is predicated upon the contention that the above-mentioned act is not applicable to four-wheel trucks and trailers, and that 1929 Session Laws, chapter 333 expressly permits such vehicles, together with their loads to aggregate the above-mentioned weight. The circuit court sustained the demurrer of the defendants to plaintiff's second amended complaint, after having stricken from the same many of its allegations. From the resulting decree the plaintiff appealed.

Chas J. Shelton, of Portland, for appellant.

Willis S. Moore, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen Stanley Myers, Dist. Atty., and Jay H. Stockman, Asst. Dist. Atty., both of Portland, and J. M. Devers, of Salem, on the brief), for respondents.

ROSSMAN, J. (after stating the facts as above).

Due to the fact that the 1931 session of the Legislature, which has but recently adjourned, repealed the aforementioned chapters of the 1929 Session Laws and substituted in their stead new legislation which will soon become effective, the issue before us is not of sufficient importance to warrant a quotation herein of the two above laws. The same circumstance likewise suggests that a statement of our conclusions, with but a brief outline of the reasons that brought us to them will suffice. Even a hurried examination of chapter 333 and chapter 438 readily discloses an apparent conflict between these two laws, which were enacted within several days of each other at the 1929 session. One might easily be led to believe that those acts prescribe the maximum load which motortrucks may lawfully transport over our highways. Yet chapter 438, which permits a total weight of 27,000 pounds for a single unit, or 34,000 pounds for a combination vehicle, bears no intimation that it intends to repeal or modify chapter 333 which prescribes 22,000 pounds as the legal weight to be placed upon the highway by a motortruck and a like weight by its trailer. The two acts supply evidence that no...