State ex rel. Swigert v. Banfield

• Decision Date: 06 July 1903
• Parties: STATE ex rel. SWIGERT et al. v. BANFIELD et al.
• Court: Oregon Supreme Court

72 P. 1093

43 Or. 287

STATE ex rel. SWIGERT et al. v. BANFIELD et al.

Supreme Court of Oregon

July 6, 1903

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Alfred F. Sears, Jr., and M.C. George, Judges.

Quo warranto by the state, on the relation of C.F. Swigert and others, against M.C. Banfield and others. Judgment for relators, and defendants appeal. Affirmed.

Williams Wood & Linthicum, for appellants.

John Manning, Dist. Atty., and Carey & Mays, for respondents.

WOLVERTON J.

This is a proceeding to determine whether the relators or the defendants are entitled to exercise the power and authority vested in the board of commissioners of the port of Portland. The questions involved relate to the construction and sufficiency of the title of the act of 1903, which act purports to invest the relators with such power and authority, and, if valid, displaces the defendants, who constitute the present board. The following is a literal copy of the title, including quotation marks (Laws 1903, p. 339):

An act to amend section 25 and section 28 of an act entitled an act to revise and amend an act entitled "An act to establish and incorporate the port of Portland, and to provide for the improvement of the Willamette and Columbia rivers in said port, and between said port and the sea passed by the Legislative Assembly of the state of Oregon in the year 1891, and filed in the office of the Secretary of State February 18, 1891; and to repeal an act entitled an act to amend an act of the Legislative Assembly of the state of Oregon, filed in the office of the Secretary of State February 18, 1891, entitled an act to establish and incorporate the port of Portland, and to provide for the improvement of the Willamette and Columbia rivers in said port, and between said port and the sea, and filed in

the office of the Secretary of State February 10, 1893, and to repeal an act entitled an act to amend an act entitled an act to establish and incorporate the port of Portland, and to provide for the improvement of the Willamette and Columbia rivers in said port, and between said port and the sea, filed in the office of the Secretary of State February 18, 1891 and to amend an act entitled an act of the Legislative Assembly of the state of Oregon, filed in the office of the Secretary of State February 18, 1891, entitled an act to establish and incorporate the port of Portland, and to provide for the improvement of the Willamette and Columbia rivers in said port, and between said port and the sea, filed in the office of the Secretary of State February 10, 1893," and approved February 18, 1899.

The first section of the act, observing the quotation marks as therein set forth, reads in part as follows:

That section 25 of an act entitled an act to revise and amend an act entitled "An act to establish and incorporate the Port of Portland, *** filed in the office of the Secretary of State February 10, 1893," and approved February 18, 1899, be amended to read as follows.

The title of the act of 1901 reads, preserving its form of quoting (Laws 1901, p. 417):

An act to revise and amend an act entitled "An act to establish *** filed in the office of the Secretary of State February 10, 1893," and approved February 18, 1899.

In this title it will be noted that the closing words, "and approved February 18, 1899," are not contained in the quotation marks of the title of the act to be amended. The title of the 1899 act (Laws 1899, p. 146) reads, literally:

An act to amend an act entitled "An act ***" filed in the office of the Secretary of State February 10, 1893.

This gives a sufficient outline of the situation. The judgment of the trial court being favorable to the relators, the defendants appeal, and in support thereof make two contentions: (1) That the act in question is void, because it was designed to be amendatory of the act of 1899, which had theretofore been repealed by the act of 1901; and (2) that, if designed to be amendatory in any respect of the act of 1901, it is void, because the latter act is not sufficiently described so as to indicate with reasonable certainty and definiteness that it is the act intended to be amended.

Speaking of the first contention, there is some confusion, caused, no doubt, by the inappropriate or inaccurate use of the quotation marks. If they had been so placed as to include the words, "an act to revise and amend an act entitled," at the beginning, and the words, "and approved February 18, 1899," at the conclusion of the title, there could have been no mistaking the purpose of the Legislature to amend the act of 1901. By section 1 it is provided "that section 25 of an act," running in exact language and punctuation as the title of the act of 1901, "be amended to read as follows," section 25 as amended, being then set forth in extenso. And section 2 provides "that section 28 of said act be amended to read as follows," setting forth the section in like manner as with section 25. A reference to the act of 1899 shows it to be "An act to amend an act entitled 'An act to establish and incorporate the port of Portland, ***' filed in the office of the Secretary of State February 10, 1893." The act under consideration is entitled, "An act to amend section 25 and section 28 of an act entitled 'An...