Little v. Cogswell

• Decision Date: 21 January 1891
• Citation: 25 P. 727,20 Or. 345
• Parties: LITTLE v. COGSWELL.
• Court: Oregon Supreme Court

25 P. 727

20 Or. 345

LITTLE v. COGSWELL.

Supreme Court of Oregon

January 21, 1891

Appeal from circuit court, Lake county.

The respondent recovered a judgment in the circuit court for Lake county against appellant in an action at law, and filed a statement of his costs and disbursements, which included the clerk's and sheriff's fees, to which appellant filed objections. The county clerk found for respondent, from which an appeal was taken to the circuit court, and that court allowed respondent as disbursements paid W.T. Boyd, county clerk, $16.95, and an additional sum of 33 1/3 per cent to-wit, $5.65, making a total of $22.60, and paid William Carl, sheriff, $6.50, and an additional 33 1/3 per cent to-wit, $2.17, making a total of $8.67, from which judgment this appeal is taken.

(Syllabus by the Court.)

A new statute, revising the whole subject matter of an old one, and evidently intended as a substitute for it, although there is no clause to that effect, will operate as a repeal of the old law.

C.A Cogswell, for appellant.

P.P. Prim and H.K. Hanna, for respondent.

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

The only question presented by this appeal is whether the clerk and sheriff of Lake county are entitled to receive for their services 33 1/3 per cent. in addition to the fees provided in sections 3 and 4 of the act of the legislative assembly approved February 25, 1885. An intelligent understanding of this question requires a brief reference to the various acts of the legislature concerning the fees of these officers. In 1882 (Laws 1882, p. 45) an act was passed regulating the fees of clerks and sheriffs in the various counties of the state, which, for the purposes of this case, may be said to have divided the counties into three classes, and provided a schedule of fees for each class. Sections 2 and 3 of this act provide the fees for the clerks and sheriffs in the counties of the first class Section 7 provides that clerks and sheriffs in certain counties, including Lake, shall receive for their services an additional compensation to that provided for those in the first class of 33 1/3 per cent.; while sections 8 and 9 provide a schedule of fees for the counties of the third class, which are the counties of Coos, Curry, Clatsop Columbia, Josephine, and Tillamook, the fees for these counties being largely in excess of those provided for the other counties. In 1885 (Laws 1885, p. 63) an act was passed, approved February 23, 1885, amending section 7 of the act of 1882, by adding to the counties of the second class therein named the counties of Baker, Union, and Grant. At the same session of the legislature an act was passed, approved February 25, 1885, amending sections 7, 8, and 9 of the act of 1882, by omitting the counties of Lake and Klamath from section 7, and adding these counties to sections 8 and 9, thus transferring these counties from the second to the third class. It is contended by counsel for respondent that the attempt to amend section 7 of the act of 1882 by the act of February 25, 1885, is void, because this section had already been amended at the same session of the legislature, two days previously, and therefore the clerk and sheriff of Lake county are entitled to receive for their services the fees provided in sections 3 and 4 of the act of February 25, 1885, and an additional 33 1/3 per cent., on account of the provisions of the act of February 23, 1885 Conceding that the attempt to amend section 7 of the act of 1882 is void, as claimed by counsel, the conclusion as contended for does not follow. The only matter under consideration by the legislature at the time the act of February 25, 1885, was passed was the fees to be allowed the clerks and sheriffs of Lake and Klamath counties. This is apparent from the general scope of the act. The only modification it makes in the act of 1882 is in transferring these two counties from the second to the third class, thereby largely increasing the fees of clerks and sheriffs in these counties. It was evidently intended to revise the whole subject of the fees of these officers, and as a substitute for all previous legislation on that subject, by transferring Lake and Klamath counties from the second to the third class. Although the attempt to amend section 7 of the act of 1882 by omitting Lake and Klamath counties from the counties therein named may be void, the amendment of sections 8 and 9 by adding these counties is valid, and clearly expresses the legislative intent. A careful comparison of this act with the act of 1882 can leave no doubt that it was the intention of the legislature, by the latter statute, to revise the entire matter to which they both had reference, to make such changes in the fees of these officers as it...