Sears v. Multnomah County

• Decision Date: 29 January 1907
• Citation: 49 Or. 42,88 P. 522
• Parties: SEARS v. MULTNOMAH COUNTY.
• Court: Oregon Supreme Court

88 P. 522

49 Or. 42

SEARS v. MULTNOMAH COUNTY.

Supreme Court of Oregon

January 29, 1907

Appeal from Circuit Court, Multnomah County; Thomas A. McBride Judge.

Action by Alfred Sears, Jr., against Multnomah county. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action brought by the respondent against the appellant to recover an amount of salary as circuit judge, claimed to be due fom December 24, 1903, to January 31, 1904, under section 2926 of B. & C. Comp., as amended December 24, 1903 (Laws Or Sp.Sess.1903, p. 14), granting to certain circuit judges $1,000 per annum additional salary to be paid by the county this being salary for part of the time prior to the expiration of 90 days after the adjournment of the Legislature. Appellant is contesting the payment thereof for the reason that the act providing for the salary contains no sufficient emergency clause to become effective from the date of its approval. A demurrer to this complaint was filed and overruled by the court, and judgment rendered for the respondent for want of an answer, from which judgment this appeal is taken.

Williams Wood & Linthicum, for appellant.

Charles H. Carey, for respondent.

EAKIN J. (after stating the facts).

There is practically but one question involved here. That is whether the emergency clause in the amendment of section 2926, B. & C. Comp., approved December 24, 1903 (Sp.Sess.Laws 1903, p. 14), is such as to render the law effective from that date. The emergency clause of that act reads as follows, viz.: "Whereas, the compensation of judges in judicial districts composed of one county only, is, under the present law, inadequate, an emergency is declared, and this act shall take effect upon its approval by the governor." This emergency clause in the amendment of section 2926 was evidently intended as a compliance with the requirements of section 28 of article 4 of the Constitution, and is sufficient under that section if it is not affected by the amendment of section 1 of that article, adopted June 2, 1902, which provides, among other things, that "the people reserve to themselves *** power at their own option to approve or reject at the polls any act of the legislative assembly. *** The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by petition," etc. "Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly." This court, in Kadderly v. Portland, 44 Or. 118, 147, 74 P. 720, in speaking of the exception made in the amendment of section 1 of article 4 of the Constitution, namely, laws "necessary for the immediate preservation of the public peace, health, or safety," say that the Legislature might put them in operation through an emergency clause as provided by section 28 of article 4 of the Constitution or allow them to become laws without an emergency clause, the necessity or expediency of either course being matter for its exclusive determination, but "as to all other laws the amendment applies, and they cannot be made to go into operation for 90 days after the adjournment of the session at which they were adopted, or until after approval by the people if the referendum is invoked." Counsel for respondent claims that the decision of this point was not an essential one in the Kadderly Case, questions its correctness, and seeks to have it re-examined by the court at this time.

It is claimed by the appellant that the emergency clause that will authorize an act to...