State v. Wells Fargo & Co.

Decision Date01 October 1912
Citation126 P. 611,64 Or. 421
PartiesSTATE v. WELLS FARGO & CO.
CourtOregon Supreme Court

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by the State of Oregon against Wells Fargo & Co. On motion to dismiss plaintiff's appeal. Motion denied.

A.M. Crawford, Atty. Gen., and I.H. Van Winkle, Asst Atty. Gen., for the State.

Snow &amp McCamant, of Portland, for respondent.

MOORE J.

This action is based on section 3540 et seq., L.O.L., and was instituted to recover from an express company licenses of 3 per cent. of its annual gross receipts in Oregon, and 10 per cent. additional as penalties for failure to pay the sums so prescribed for the privilege of conducting the business in this state. The complaint contains three separate causes of action to obtain by course of law the sums of $4,154 $9,907.77, and $7,796 as licenses and penalties for the years 1906, 1907, and 1908, respectively. The answer to each cause of action set up three separate defenses, viz That the act hereinbefore referred to and pursuant to which the tax was undertaken to be imposed was an attempted exercise of the initiative power reserved to the electors by an amendment of the fundamental law of the state (Const.Or art. 4, § 1), which alteration contravened the provisions of the federal Constitution; that the statute mentioned had been repealed by an act of the legislative assembly, approved February 28, 1907 Laws Or.1907, p. 458); and that the statute first adverted to had also been abrogated by an act of the Legislature filed in the office of the Secretary of State February 24, 1909 (Laws Or.1909, p. 345). A demurrer to the several defenses was interposed on the grounds that the facts thus set forth were insufficient to constitute a justification, or a confession and avoidance, of the allegations of the complaint. The demurrer to the separate defenses put forward to the first and second causes of action was sustained, but was overruled as to the third. Thereupon counsel for the respective parties stipulated that the entry of a judgment herein should be deferred until a decision was reached by the Supreme Court of the United States on a writ of error to the Supreme Court of Oregon, wherein the validity of the gross earnings tax of 1906, an initiative act, was involved; that, if such act were upheld, judgment should be rendered against the defendant for the sum of $14,061.77, the amount of the first and second causes of action, with interest thereon from June 29, 1909, and for the costs and disbursements, but, if the act were declared invalid, judgment should be entered for the defendant for its costs and disbursements, and that plaintiff take nothing by its action. The cause thus referred to was dismissed for want of jurisdiction, thereby impliedly upholding the validity of the initiative act. Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 32 Sup.Ct. 224, 56 L.Ed. 377. Pursuant to the stipulations mentioned, judgment was entered April 1, 1912, in favor of the plaintiff and against the defendant for the sums specified, which award was paid in full and satisfied of record two days later. As to the third cause of action stated in the complaint, it was determined that plaintiff take nothing thereby. From this latter judgment the plaintiff appealed, and, the cause having been transferred, the defendant's counsel moved to dismiss the appeal on the grounds that the part of the...

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2 cases
  • Stevens v. Carroll
    • United States
    • Oregon Supreme Court
    • February 18, 1913
  • State v. Wells Fargo & Co.
    • United States
    • Oregon Supreme Court
    • March 25, 1913
    ...Judge. Action by the State against Wells Fargo & Co. From a judgment in favor of defendant, the State appeals. Affirmed. See, also, 126 P. 611. This an action brought by the state of Oregon to recover certain sums of money claimed to be owing by respondent under the gross earnings tax law e......

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