Trader's Guardianship, In re

• Decision Date: 21 March 1951
• Citation: 191 Or. 203,229 P.2d 276
• Parties: In re TRADER'S GUARDIANSHIP. ADMINISTRATOR OF VETERAN'S AFFAIRS v. UNITED STATES NAT. BANK OF PORTLAND.
• Court: Oregon Supreme Court

Page 276

229 P.2d 276

191 Or. 203

In re TRADER'S GUARDIANSHIP ADMINISTRATOR OF VETERAN'S AFFAIRS v. UNITED STATES NAT BANK OF PORTLAND.

Supreme Court of Oregon.

March 21, 1951.

Metta D. Baughman, Asst. Atty., U. S. Veterans' Administration, Portland, argued the cause for appellant, W. N. Rydalch, Chief Atty., Portland Regional Office, Portland, on the brief.

Wilber Henderson, Portland, argued the cause for respondent, Platt, Henderson, Cram & Dickinson, of Portland, and R. A. McCourry, McMinnville, on the brief.

Will H. Masters, Portland, for Judiciary Committee, House of Representatives, as amicus curiae.

Before BRAND, C. J., and HAY ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.

BRAND, Chief Justice.

This is an appeal by the Administrator of Veterans' Affairs from an order made by the Circuit Court of Yamhill County dated August 12, 1949, approving the 16th annual account which was filed by the United States National Bank of Portland, as guardian of the estate of Glenn D. Trader, incompetent. In the report of the guardian it was alleged that the guardian was entitled to a credit against the guardianship estate in the sum of $117.50 as the legal guardianship fee and commission for services rendered as guardian during the year covered by the accounting. Objections were made to the account by the Veterans' Administration upon the ground that the commission claimed by the guardian was in excess of 5 per cent of the annual income of the estate of the ward, and was therefore in violation of O.C.L.A. § 22-124, as amended by Chapter 273, Laws of 1943. It it the contention of the guardian that the 1943 amendment is unconstitutional. Upon motion of the Administrator, the cause was transferred from the County Court to the Circuit Court for Yamhill County. After hearing the cause, the Circuit Court held that the 1943 amendment was violative of Oregon Constitution, Article IV, Section 20. If therefore overruled the objections of the Veterans' Administration and held that $117.50 is a reasonable amount to be allowed to the guardian, and authorized the said bank to receive said amount from the assets of the guardianship. The Administrator of Veterans' Affairs appeals.

The Administrator assigns as error the order of the court in overruling his objections to the allowance of a commission in the sum of $117.50 to the guardian. The same question is raised by Assignment of Error No. 2 which asserts that: 'The Circuit Court erred in holding that Section 22-124, O.C.L.A., is unconstitutional in that it violates the provisions of Section 20, Article IV of the Oregon Constitution.'

The guardian in its brief argues, first, that Chapter 273 of the Laws of 1943 is invalid because violative of Section 20, Article IV of the Oregon Constitution, and also because of an alleged violation of Section 20 of [191 Or. 208] Article I of the Constitution, The Equal Protection Clause.

The only serious question in the case relates to the alleged violation of the constitutional provision which reads as follows: 'Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.' Constitution of Oregon, Article IV, § 20.

O.C.L.A. § 22-124 was originally enacted as Chapter 424, Laws of 1927. The title of that act reads as follows: 'Requiring guardians of minors, insane and incompetent persons receiving pensions, compensation, insurance or other benefit from the United States to serve certain petitions and accounts upon representatives of the United States government.'

The body of the act is as follows: 'Whenever a guardian has been appointed by any court of this state for the estate of any minor, insane or incompetent person, who is receiving or may thereafter receive compensation, insurance, pension or other benefit from the United States government, the department or bureau of the United States charged with the payment of such compensation, insurance, pension or other benefit may serve upon such guardian, and file with the clerk a notice requesting that a copy of all accounts, petitions for the sale, lease or mortgage of the property of the estate, and petitions for the investment of the funds of the estate, filed in said estate, shall be served upon a representative of the said department or bureau, to be designated in said notice, and thereafter it shall be the duty of such guardian to serve upon said representative a copy of all such accounts and petitions before the same are filed in said estate. If any such guardian shall fail or refuse to file any account or report required by law the court shall, upon the petition of such representative of the United States government, make an order requiring such guardian to file said report or account or to show cause for failure so to do.'

The title to Chapter 273 of the Laws of 1943 reads as follows: 'To amend sections 22-123 and 22-124, O.C.L.A., relating to compensation and duties of guardians of wards.'

Section 1 of said Chapter 273 purports to amend O.C.L.A. § 22-123, but makes no substantial change in that section. Section 2 of said Chapter 273 purports to amend O.C.L.A. § 22-124 which was Chapter 424 of the Laws of 1927, supra. The amendatory act of 1943 duplicates O.C.L.A. § 22-124 word for word, but also adds certain new provisions. With the first of these provisions we are not concerned. It purports to give to the governmental agency the right to 10 days' notice of the time set for hearing upon the guardian's account or petition. The additional matter with which we are concerned and which is added by the 1943 amendment reads as follows: '* * * The guardian, under the direction of the court and without notice to any party except to the representative of such governmental department or bureau as hereinbefore provided, may invest the available funds of the ward in securities in which trust companies are permitted to invest trust funds, and shall make no other investments except under the direction of the court, upon petition, after 10 days' notice to all persons interested in the estate and hearing in open court. Compensation shall not be allowed to any guardian annually from any moneys received from the United States in the form of compensation, insurance, pension or other benefit in excess of 5 per cent of the amount of said moneys received during the period covered by the account, and the revenue of profit from any property previously acquired therewith in whole or in part, except that additional reasonable compensation may be allowed after hearing where extraordinary services have been performed by the guardian.'

It will be observed that the title to Chapter 424, Laws of 1927, now O.C.L.A. § 22-124, is perhaps as restrictive in scope as any title to any act passed by the legislature. It gives notice that the body of the act will require guardians in certain types of case to serve certain petitions and accounts upon representatives of the United States government. Furthermore, the body of the act is strictly limited to the narrow purview of the title. Its constitutionality is conceded by the guardian. The new material added by the amendatory act of 1943, after reenacting all of the requirements of the 1927 act, goes further and expressly provides a restriction upon the power of the court to allow compensation to a guardian in the cases covered by the act. If the 1943 act had not been passed, then it is clear that the right of the guardian to compensation would have been controlled by the general statutes which authorize a court to award such compensation as it shall consider just and reasonable. O.C.L.A. § 22-126, and Oregon Laws 1947, Sec. 20, Ch. 524. The 1943 amendment in effect purports to amend, as to a certain class of cases, the general statute concerning the method of fixing the fees of guardians. It purports to control that discretion, which the court would otherwise have, to award a fee deemed by it to be just and reasonable. It purports to limit the right of a guardian to receive such fee. A person considering whether or not to accept appointment as guardian of an incompetent under the provisions of the 1927 act would have received no notice whatever from the title or the body of that act that there was any limitation upon his right to compensation other than the limitation imposed by the general statute under which the court fixes the fees of guardians. The legislative intent to be gathered from the title of the original act is clearly limited to the imposition upon certain guardians of the duty to serve certain petitions and accounts upon representatives of the United States government and the text of that act is strictly limited to the purpose stated in the title. Whether the 1943 amendment is within the subject expressed in the title to the 1927 act or is a matter properly connected therewith is the question for decision.

In considering the issue, we must be guided by the following accepted principles. Every legislative act is presumed to be constitutional. Section 20 of Article IV of the Oregon Constitution should receive a liberal construction if necessary to sustain the legislative intent, and before a statute is to be held void on the ground that its subject is not sufficiently expressed in the title, the conflict between the statute and the Constitution should be palpable and irreconcilable. Miles v. Veatch, 189 Or. 506, 220 P.2d 511, 221 P.2d 905; Lovejoy v. City of Portland, 95 Or. 459, 188 P. 207. But, when properly construed, the constitutional provision is mandatory. Anthony v. Veatch, 189 Or. 462, 220 P.2d 493, 221 P.2d 575; State ex rel. Umatilla County v. Hawks, 110 Or. 497, 222 P. 1071; Brugger v. Wagner et al., 135 Or. 615, 297 P. 343.

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