Warren v. Crosby

• Decision Date: 08 November 1893
• Citation: 24 Or. 558,34 P. 661
• Parties: WARREN v. CROSBY, Mayor, et al.
• Court: Oregon Supreme Court

34 P. 661

24 Or. 558

WARREN v. CROSBY, Mayor, et al.

Supreme Court of Oregon

November 8, 1893

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Action by M.S. Warren against M.C. Crosby, mayor of the city of Astoria, Or., and others, to enjoin such city from incurring further expense in assessing and collecting the city taxes for the year 1893. From a judgment in favor of plaintiff defendants appeal. Affirmed.

J.F Hamilton, for appellants.

George Noland, for respondent.

LORD C.J.

This is a suit brought by a taxpayer of the city of Astoria to enjoin the city from incurring any further expense in assessing and collecting a city tax for the year 1893. The question sought to be raised is the right of the city of Astoria to assess and collect a city tax for said year, in disregard of the general law of the state. The contention is that the general act is amendatory of section 38 of the special act incorporating the city of Astoria, in violation of section 22, art. 4, of the constitution, 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." The general act--passed at the last session of the legislature--is entitled "An act to secure a more convenient mode of making assessments and of collecting and paying taxes," etc., ^[1] and consists of nine distinct sections, which, in substance, provide as follows: Section 1 provides for four additional columns to the assessment and tax rolls, to be headed "Cities," "School Districts," "Amt. City Tax," and "Amt. School District Tax," and for inserting the name of the city or school district in which each item of property is assessable. Section 2 provides for listing the cities and school districts in the several counties in alphabetical and numerical order upon a page or pages of the tax roll, with the aggregate value of all the assessable property in each city and district set opposite the name or number thereof. Section 3 provides for taxing property in cities and school districts according to its valuation by the county assessors and for furnishing the proper officers of such cities and districts with statements of the aggregate valuation of the assessable property in their respective cities and districts. Section 4 provides for annual notice to the clerks of the several county courts of the rate per cent. of the tax levy in each city and school district in the respective counties. Section 5 provides for computing the tax upon the property of each individual by the several clerks of the county courts and extending the same so as to show the aggregate tax of each individual upon his property in the respective cities and districts. Sections 6 and 7 provide for the collection of such taxes, and the payment thereof to the respective cities and school districts for which they were collected. Section 9 provides "that all laws providing for assessors in, or assessments of property by any school district, incorporated town or city and all laws in conflict herewith, be and the same are hereby repealed." By this act the power to assess and collect taxes, conferred on the different cities of the state by their charters, and also upon the different school districts, as well as the duties connected therewith, is transferred to the county officers designated therein. Section 38 of the special act incorporating the city of Astoria provides that its common council shall have power "to assess, levy and collect taxes for general municipal purposes, upon all property, real and personal, which is taxable by law for state and county purposes." It will be observed that the effect of the general act is to eliminate from section 38 of the special act the power conferred on the common council to assess and collect taxes for municipal purposes, and to transfer it and the duties connected therewith to the officers of the county so designated. This, it is claimed, is such a change or alteration of section 38 as, in effect, amends it without conforming to the requirements of section 22, art. 4, of the constitution; and hence that such a change or alteration could not be legally made without setting forth and publishing at full length such section as changed or modified. The question, therefore, to be determined is whether the general act comes within the scope of the constitutional provision invoked. The language of that provision is both prohibitory and mandatory. By its terms it inhibits the revision or amendment of an act by mere reference to its title, and requires that the act revised or section amended shall be inserted at length. It does not purport to limit or restrict the power of the legislature in the enactment of laws. It relates only to the mode or form in which the legislative power shall be exercised. Its prohibition is against legislation effected by modes not in conformity with its requirements. The evil it sought to remedy was the mode in which the legislative power was sometimes exercised in the enactment of revisory or amendatory laws. This evil, as is well known, was the practice of amending or revising laws by additions or other alterations, which, without the presence of the original law, were usually unintelligible. Acts were passed, amending an existing statute by substituting one phrase for another, or by inserting a sentence, or by repealing a sentence, or a part of a sentence, in some portion or section thereof, which, as they stood, often conveyed no meaning, and, without examination and comparison with the original statute, failed to give notice of the changes effected. By such means an opportunity was afforded for incautious and fraudulent legislation, and endless confusion was introduced into the law. Legislators were often deceived, and the public imposed upon by such modes of legislation. To prevent these consequences, and to secure a fair and intelligent exercise of the lawmaking power, was the object of the constitutional provision in question. This object it accomplished by imposing a limitation, not on the power of the legislature to make laws, but upon the mode in which that power should be exercised in the enactment of amendatory or revisory laws. If the act is in itself complete and perfect, and is not amendatory or revisory in its character, it is not interdicted by this provision, although it amends by implication other legislation upon the same subject. Such an act, although it may operate to change or modify prior acts, is not within the mischief designed to be remedied by said section 22. "Statutes," says Judge Cooley, "that amend others by implication are not within this provision, and it is not essential that they even refer to the acts or sections which by implication they amend." Cooley, Const. Lim. p. 152. Hence an act of the legislature, not amendatory in character, but original in form, and complete in itself, exhibiting on its face what the law is to be, its purpose and scope, is valid, notwithstanding it may, in effect, change or modify some other law upon the same subject.

As the general act under consideration deprives the cities and school districts of the state of the power to assess and collect taxes, which had been theretofore conferred upon them by special and general laws, it is claimed that this is such a change or alteration of those laws in that particular as is amendatory, and that, unless the general law sets forth and republishes at length the part or section thereof as amended it directly falls within the constitutional inhibition, and is void. Hence, as the effect of the act is to take from the city of Astoria the power to assess and collect taxes, conferred upon it by section 38, supra, it is amendatory of that section, and, for like reason, unconstitutional. This construction of the constitutional provision in question is based on the assumption that any act of the legislature which in effect alters or changes an existing law, or part thereof, is an amendment of it, and void, unless it inserts the law at length, or such part as changed or amended. In support of this construction we are cited to the case of State v. Wright, 14 Or. 370, 12 P. 708, in which Strahan, J., said: "In legislation an amendment means an alteration in the draft of a bill proposed, or in a law already passed. Rap. & L.Law Dict. tit. 'Amendment.' So that, if this act alters the legal effect of the charter of the city of Astoria in a particular already covered and provided for by the charter, then it is to be taken as an amendment of the charter. This is not a case where new and additional powers are added by way of supplement, but the change or alteration of an existing power; and I think it is too plain for argument that it is an amendatory statute." In that case the act under consideration provided, in substance, that "every person obtaining a license to sell spirituous or vinous liquors shall pay into the treasury of the county, city or town granting such license the sum of three hundred dollars per annum, and in the same proportion for a less period, or two hundred dollars per annum, and in the same proportion for a less period, for a license to sell malt liquors only: provided, that no license shall be granted for a less period than six months: and be it further provided, that no license to sell spirituous, malt or vinous liquors shall be granted by any incorporated city or town for a less sum than that hereinbefore specified," etc. The effect of this act, if valid, was to amend the charter of every city and incorporated town in the state. As the city of Astoria by its charter had the power conferred upon it through its common council to license and tax barrooms and drinking shops, and, in pursuance thereof, had passed an...