Northern Counties Investment Trust v. Sears

• Decision Date: 07 October 1895
• Citation: 30 Or. 388,41 P. 931
• Parties: NORTHERN COUNTIES INVESTMENT TRUST, Limited, v. SEARS, Sheriff.
• Court: Oregon Supreme Court

41 P. 931

30 Or. 388

NORTHERN COUNTIES INVESTMENT TRUST, Limited, v. SEARS, Sheriff.

Supreme Court of Oregon

October 7, 1895

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Application of the Northern Counties Investment Trust, Limited, for mandamus to George C. Sears, as sheriff of Multnomah county.From a judgment directing a peremptory writ to issue defendant appeals.Affirmed.

Geo. E. Chamberlain, for appellant.

W McCamant and M.W. Smith, for respondent.

WOLVERTON J.

This is a mandamus proceeding against the sheriff of Multnomah county, to compel him, as such officer, to serve a summons upon the defendants in a cause pending in the circuit court of the state of Oregon for Multnomah county, wherein the Northern Counties Investment Trust, Limited, is plaintiff, and George H. Dedman et al. are defendants.The mileage fee for the service was paid to the defendant, but he refused to comply with the request of said plaintiff to serve such summons unless other fees were also paid to him in accordance with, and as allowed by, the act of October 26, 1882.After a full hearing the court below directed a peremptory mandamus to issue, commanding the defendant to forthwith serve the summons and papers in question, without further compensation.From this judgment the defendant appeals.

The determination of the question brought up by this appeal involves the construction and constitutionality of an act entitled "An act to change in part the compensation and mode of payment thereof to the county clerks, recorders of conveyances, clerks of the circuit courts and county courts in the state, and of the sheriffs of the several counties; to repeal certain provisions of statute providing for the payment of certain fees to said officers and of trial fees in certain cases; to provide for the payment by parties to appeals, actions, suits, and proceedings of certain sums to assist the state and the several counties in defraying expenses consequent upon the administration of justice; to provide for the appointment of deputies for the various offices above enumerated in certain cases and for their compensation, and for the payment to the state and several counties of sums of money and fees paid to said officers by parties litigant,"--filed in the office of the secretary of state February 22, 1893, and an act amendatory thereof, approved February 25, 1895.For the purposes of this inquiry the two acts are essentially the same, and what is predicated of the one might generally be predicated of the other.They will therefore be treated as one act, except in so far as it is necessary to note distinctions touching their relative provisions, or the surrounding circumstances attending their adoption.

It is contended that the act of February 22, 1893, is unconstitutional because--First, it is in conflict with subdivision 10, § 23, art. 4, of the constitution, which provides that the legislative assembly shall not pass local or special laws for the assessment and collection of taxes for state, county, township, or road purposes; second, it is a local law, "regulating the practice in courts of justice," contrary to subdivision 3, § 23, art. 4; third, it is in violation of section 22, art. 4, which provides that "no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length"; fourth, the act treats of several distinct and unconnected subjects, contrary to section 20, art. 4, which provides that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title"; fifth, it is an act for raising revenue, and originated in the senate, in contravention of section 18, art. 4, requiring that bills for raising revenue shall originate in the house of representatives; and, sixth, it contravenes section 10, art 1, which requires that "justice shall be administered openly and without purchase."

1.The act provides for a fixed salary for the clerks, sheriff, and recorder, in each of the counties of the state with the exception of Lincoln, and it is claimed that this omission is fatal to the act, under Manning v. Klippel,9 Or. 367.A proper construction of the act will determine whether or not it comes within the doctrine of that case.As to whether or not the fees which the several officers are required to collect and turn over to the county treasurer are taxes, within the meaning of subdivision 10, § 23, art. 4, of the constitution, it is unnecessary for the court to decide at the present time.But if it be conceded that they are taxes, within the meaning of that clause, it does not follow that the act is local, and therefore void.Section 1 thereof provides that "each of the county clerks of the several counties in this state in which there exists such office shall receive a salary as follows."Then follows a list containing the names of all the counties, except Lincoln, with the amount of the salary set opposite each county in said list.Section 2 relates to clerks of the circuit and county courts chosen in counties where such offices exist separate from the office of county clerk.Section 3 relates to recorders of conveyances.Section 4 provides that "the sheriffs of the several counties in this state shall receive an annual salary as follows."Then follows a list of the counties, with the amount of salary set opposite, Lincoln county being omitted.Section 5 provides that: "The salaries herein provided for in favor of said county clerks, recorders of conveyances, clerks of the circuit and county courts and sheriffs, shall be audited and paid by the several counties to the respective parties entitled thereto, in monthly payments, and in the same manner that other county charges are paid; and no one of such officials shall be entitled to receive any fees or other compensation for his services than as above provided, and except as hereinafter provided, except for furnishing to private parties copies of the records and files in his office for their benefit and convenience, in which case he shall be entitled to charge such private parties therefor at the rate of ten cents a folio, but shall not be entitled to anything for authenticating such copies, beyond including the number of words contained in the certificate of authentication in his computation of the number of folios."Section 6 provides, in effect, that "the sheriffs of the several counties in the state shall be entitled to receive the same compensation now allowed by law for the board and keeping of prisoners confined in the county jail of his county."They shall be entitled to any reward offered for the apprehension of persons charged with crime, and to receive from the state the fees now allowed by law for transporting convicts to the penitentiary, and insane and idiotic persons to the asylum.They shall also be entitled to claim from the plaintiff or moving party in any action or proceeding such reasonable sums of money as they may have been compelled to pay or incur on account of the care of property in their custody under attachment, execution, etc.; and, where they are required to travel into another county or state to make an arrest or receive a prisoner, they shall receive their actual or necessary expenses incurred.By the amendment of February 25, 1895, three provisions are added, all applicable to counties of more than 50,000 inhabitants, but none other.The first provides for letting the board of prisoners to the lowest bidder; the second requires the payment of fees received from the state for conveying convicts to the penitentiary, and insane to the asylum, to be paid into the county treasury, and the payment by the county of the actual expenses incurred; and the third is as follows: "Provided further, also, that in counties containing more than fifty thousand inhabitants the sheriff shall be entitled to receive all mileage for serving process or papers in civil cases, but shall not receive any mileage in criminal cases whatever, or on executions in civil or criminal cases."Section 7 provides that the "coroners of the several counties shall also be entitled to the same fees now allowed for the performance of service in an action, suit or proceeding where the sheriff is a party, and the party paying the same shall be entitled to recover the amount paid from the adverse party."Section 8 provides that: "It shall be the duty of the several clerks of the circuit and county courts in the state at the time any suit, action or proceeding for the enforcement of private rights, including appeals and writs of review, but not proceedings in probate matters, is instituted to exact from the plaintiff or moving party in such suit, action or proceeding, the sum of five dollars.*** Such clerk shall also, at the time of filing any answer, demurrer or motion in any such action, suit or proceeding upon the part of such defendant exact from such defendant the sum of three dollars *** and *** shall also exact from such plaintiff or moving party at the time such suit, action or proceeding comes on for trial or hearing upon a question of fact or law involved therein, unless referred to a referee, and except upon demurrer, an additional sum of twelve dollars.*** And every such clerk upon receiving any money as provided in this section, shall immediately pay the same over to the county treasurer of his county and take his receipt therefor."The amendment of 1895 enlarges the fees above provided for, where the amount in controversy is above $500, and reduces the trial fee in all cases to $2.It also provides for the payment of a fee in probate proceedings.Section 9 provides that: "The several sums required to be paid by parties...