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It may also be premised that, while a constitutional amendment is a law of a higher order than one enacted by the Legislature, it, nevertheless has the same effect upon existing legislation as a law passed by the ordi

a prior constitutional or statute provision in conflict with it, just as one statute may amend or repeal a prior one, if such is its necessary effect or intent.

the Constitution, which was adopted June 3, 1 of the bonds, and which is concededly ade 1919, and became effective by proclamation of quate to the proceeding here initiated, unthe Governor on June 23, 1919, operated pro-less the percentage of the issue to be permitprio vigore to remove the limitation of 2 pted is subject to regulation and restriction by cent. prescribed in section 19, c. 103, supra, the Legislature. and to authorize counties without further legislative action to issue bonds for the construction of roads, subject to the limitation prescribed in section 10 of article 11, as then amended; in other words, that the machinery for holding such elections being al-nary methods. Thus it may amend or repeal ready in existence, and no new machinery being required for the purpose, the constitutional amendment furnished full authority to counties desiring so to do to proceed in the manner provided by chapter 103, supra, to hold an election for the purposes above set forth, if the proposed bond issue did not exceed the limitation of 6 per cent, prescribed by the last amendment. If the amendment operated as a grant of power directly to the counties to incur a bonded indebtedness within and up to the limit of 6 per cent. of the assessed valuation of the property subject to taxation, the conclusion is irresistible that the provision is practically, though not technically, self-executing, and that the proceeding here being considered is regular, and a bond issue valid.

If, on the other hand, the amendment is to be construed as merely an authorization to the Legislature to permit, by an act afterwards to be passed, counties to issue bonds within a limit of 6 per cent., but less if legislative wisdom should so determine, then the proceeding herein must fail.

This involves a construction of the section in question, which is a matter not devoid of difficulty, but which seems, in the judgment of the writer, to indicate that the amendment now being considered is and was intended as a direct grant of power to the counties to proceed with the legal machinery then in hand, and which, by force of the amendment, was entirely adequate for the purpose, to provide for permanent roads within their limits without interference from other sections of the state, acting by means of their representatives in the Legislature and without being limited in their action by other sections of the state.

In the instant case it would seem that such an intent is plainly evinced, if we examine the history of constitutional and statutory legislation upon the subject in hand. It is a familiar canon of constitutional construction that the courts, in determining the intent of a statute, will consider the circumstances under which it was enacted, and the mischief to be remedied by its enactment, with a view to so construing it, if reasonably possible, to correct the supposed defect sought to be obviated. Cooley Const. Lim. (7th Ed.) 100, 101.

With this rule in view, we will first examine the history and evolution of the constitutional provision now under consideration.

Section 7, art. 11, of the original Constitution provided in substance that the legislative Assembly should not create any debt against the state in excess of $50,000, with certain exceptions therein noted.

Section 10, art. 11, as originally adopted, is as follows:

"No county shall create any debts or liabilities the sum of five thousand dollars, except to which shall singly or in the aggregate exceed suppress insurrection or repel invasion; but the debts of any county at the time this constitution takes effect shall be disregarded in estimating the sum to which such county is limited."

The Constitution was adopted in 1859, when the state did not contain to exceed 50,000 inhabitants, had little taxable property, and was poor in everything except potential natural resources.

It may be premised that this is not a case like Andrews v. Neil, 61 Or. 471, 120 Pac. 383, 123 Pac. 32, wherein it was attempted to hold A comparison of section 7 with section 10, an election for the issuance of bonds for supra, indicates that, while section 7 is a road purposes in the absence of any statute limitation on the power of the Legislature authorizing such elections, or providing how and addressed expressly to it, section 10 was or where such proceeding should be initiated. an inhibition addressed expressly to the counIn that case we held that the county author- ties as such, and in the whole history of legities could not improvise the machinery for islation upon this subject we find no statute calling and holding such an election, and authorizing counties to contract debts within that the attempt to do so was a nullity for the limit of $5,000. The section was conthat reason. Thereupon the Legislature pass-sidered as both a limitation and a permission ed chapter 103, supra, which enacted a com- to counties without further legislative action plete Code of Procedure and provided carefully for every step necessary, from the in

to contract debts within the prescribed limit, and the only cases which ever arose involv

(190 P.)

those instances where it was claimed the In 1919 there arose a general demand for limit had been exceeded.

further improvements, and it being conceived The distinction attempted to be made above that the limit of 2 per cent. on the assessed seems to have been in the mind of this court valuation of property would not raise suffiin the various cases, wherein it has been held cient funds with which to effect them, and that involuntary indebtedness thrust upon a transportation by means of heavy trucks county by operation of law and which it can- and automobiles having become more and not escape is not within the constitutional more necessary, the Legislature of 1919 subinhibition; the substance of judicial reason-mitted the present amendment, which reads ing being that, as the county is compelled by as follows: law to perform certain duties and to pay for such performance, it does not "create the indebtedness arising therefrom, but that, the obligation being thrust upon it by superior authority, it did not constitute any part of the $5,000 indebtedness contemplated by the Constitution and impliedly authorized there

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"No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion or to build permanent roads within the county and debts for permanent roads shall be incurred

only on approval of a majority of those voting on the question."

As before stated, there was no election machinery in existence by which the amended section could be put into execution, and we held that for that reason the counties could not avail themselves of the privilege therein granted until such machinery was provided.

which shall, singly or in the aggregate, with "No county shall create any debts or liabilities previous debts or liabilities, exceed the sum of $5000.00, except to suppress insurrection, or repel invasion or to build or maintain permanent roads, within the county; and debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, and shall not either singly or in the aggregate, with previous debts and liabilities of the assessed valuation of all the property in incurred for that purpose, exceed six per cent. the county."

The words in italics indicate the only changes made from the amendment of 1910.

When this amendment was submitted and

appeared in the voters' pamphlet there appeared an affirmative argument signed by two members of the Senate and one member of the House, and concurred in by a local good roads committee of Klamath county, setting forth the effect and purposes of the amendment. The members of the Legislature signing this argument were Hon. Geo. T. Bald

win, Senator from the Seventeenth district, Hon. W. W. Banks, Senator from the Fourteenth district, and Hon. G. H. Merryman, Representative from the Twenty-First representative district. The purposes of the measure and the reasons why it should be supported are given as follows:

"(1) The measure is intended to grant to counties the option of voting bonds up to 6 Thereupon chapter 103, Laws 1913, was per cent. of assessed valuation for road purpassed by the Legislature, with the follow-poses. ing title:

"To authorize the county courts of the state of Oregon to issue and sell bonds or county warrants of the county for the purpose of building and maintaining permanent highways within the respective counties, and to provide a sinking fund for the purpose of retiring the bonds at maturity; to authorize the several counties of the State of Oregon to hold special elections for the purpose of submitting to the voters of the county the question of the issuance of bonds and warrants; and generally to provide a complete manner of procedure for the issuance of county bonds for the purpose of the building, construction and maintenance of permanent highways."

Pursuant to this act, many counties held elections for the purpose of authorizing the issuance of road bonds, and many extensive improvements were authorized and carried to completion.

It is a matter left entirely with the particular county. As to whether or not, after the passage of this measure, a county votes bonds, will be no concern of any other county. "(2) Many counties desiring more funds for roadwork are asking that you consent that they burden themselves if they so desire. Your affirmative vote on this measure does not prejudice you in the least, nor cost you a penny.

are a paying investment and badly needed, is it "(3) If, in the opinion of a county, good roads not your duty to vote to allow that county to put the question to its people?

"(4) A private corporation cannot do busiable, much less can a public corporation make ness with only 2 per cent. of its capital availnecessary improvements on that amount; 6 per cent. is little enough.

"(5) This is a purely local option measure; no county need assume burdens unless it desires.

"Appeal is made to the sense of fairness of voters to grant the opportunity and privilege for which the measure provides."

There was no negative argument, and the amendment was adopted at the polls by a large majority.

Under our election system, every voter in the state received this voters' pamphlet, and it is safe to say that those who voted for the amendment. did so in the light of the explanation furnished by this official document, and vouched for by eminent members of the Legislature, which prepared and submitted it. That the voters thought they were wiping out and removing the 2 per cent. restriction and substituting a 6 per cent. restriction, and cast their ballots with that intent, must be apparent to any unprejudiced mind. This brief summary of the history of the legislation on this subject makes it clear to the mind of the writer that it was the intent of the Legislature, when the amendment was submitted, and of the people when they adopted it, to do away with the previous 2 per cent. restriction and to permit the people of the several counties, within the limit prescribed, to say for themselves without legislative interference to what extent they would pledge the credit of their counties for the purpose of securing permanent roads. The original section may have been restrictive, but both the amendments contain permissive elements in that they allow, and, as heretofore shown, were intended to allow, counties to go beyond the original restriction so long as they did not exceed the prescribed 6 per cent.

What was the mischief to be remedied? Clearly the limitation of the power of the counties to tax themselves for permanent roads, by removing the 2 per cent. limitation so that up to 6 per cent. they would be free to act in the matter as they might choose. The removal of the restriction was an implied grant of the power so to act.

It should be remembered that, in the absence of any restriction, there was in the counties inherent power to contract debts without limitation as to amount. The original section limited the exercise of this power to the creation of a voluntary indebtedness of $5,000. The present amendment still further enlarged the privilege, which, without some constitutional limitation, would have been boundless.

Its effect was not only impliedly to amend the previous amendment, but to amend chapter 103, supra, by implication, by inserting the word "six" instead of "two." It is simply a case of amending a law enacted by the Legislature by another enacted by the people. There was never any necessity for legislative enactment to prescribe the limit within which counties could incur indebtedness. The first amendment did that effectually, but what was then lacking was election machinery by which the counties could exercise the privilege given them by the amendment. Every provision of the Consti

existence at the time of its adoption legal machinery by which its mandates can be enforced or its privileges exercised, and there is not an authority in all the reports cited by the defendant to the contrary, and they do not exist.

The question as to whether the amendment is or is not self-executing cuts no figure in this case. A self-executing provision is one which furnishes by its own terms the machinery by which the rights under it may be exercised, but it does not follow that because it does not contain within itself such a formula that the rights granted by it must remain in abeyance, if machinery adequate to carry its provisions into effect already exists, which is the case here. If a farmer purchases a scythe blade, the blade itself is not “selfexecuting," it will cut no grass until it has a snath, but, if he already has a snath that will serve the purpose, he would be but a foolish and extravagant husbandman if he purchased a new snath instead of using the one he already possessed. The simile is homely, but it seems to the writer to be appropriate in the present instance. This amendment is no mere voluntary proposition suggested by a group of private citizens, but the solemn and deliberate act of the two great lawmaking bodies of the state acting in conjunction, possessing all the force of a statute and all the supposed sanctity that hedges about a constitutional amendment. Why should the Legislature be required to speak again and say in effect, “Section 19 of chapter 103, Laws of 1913, shall be amended by striking out the figure 2' in line 3, and inserting the figure '6' in lieu thereof, so as to read," etc., when the highest law that can be enacted has by implication done that very thing. To so hold seems to the writer to be clinging to the veriest shadow of an unprofitable technicality at the expense of defeating the intent of the Legislaturę, when it enacted and submitted the amendment and of the people when they ratified it.

The history of this legislation seems to the writer to show the legislative construction of the effect of the amendment, which is always entitled to weight, and the action of the half dozen or more counties which have acted upon that construction and voted to issue bonds indicates the construction which the people who voted for it placed upon it, and both indicate a common intent that it should become effective with the machinery ready at hand by which this privilege can be put into immediate effect, and it would be little short of a calamity if the people of Clackamas county and other counties which have taken, similar action should be required to wait until the Legislature does what is seems to the writer the amendment itself has already done, and go to the expense of

(190 P.)

do what the amendment has aleady author- make advances and pay certain expenses for
ized to be done.
defendant, and keep just accounts of his
For the reasons above given, I dissent from earnings, and that defendant continued so
the majority opinion.

to work until May 21, 1917, when he traded
in his Standard truck for the Velie truck

HARRIS and JOHNS, JJ., concur in this which is the subject of this suit. When
dissent.

(97 Or. 232)

LIND v. BOULIN.

(Supreme Court of Oregon. July 6, 1920.)

this trade was made, he avers that plain-
tiff made certain advances to defendant, en-
abling him to make his payments on the
truck. Thereafter he continued to work for
plaintiff, who agreed to keep him and his
truck occupied, but ceased to employ him in
the summer of 1918, whereupon he drove
his truck to his home in Portland. It is
further alleged that plaintiff has failed to

1. Replevin 100(1)-Decree giving defend-keep just and true accounts between the
ant the right to acquire ownership on com-
pleting payments held proper.

In replevin action by seller against buyer,
who pleaded an equitable defense under L. O.
L. § 390, as amended by Laws 1917, p. 126,
decree giving plaintiff possession with the right
in defendant to acquire ownership by complet-
ing payments held proper under the pleadings
and the statute.

2. Replevin 11(2) - Demand unnecessary
where defendant claims title.

In replevin, where defendant claimed title
in himself, it was unnecessary for plaintiff to
prove a demand.

3. Pleading 261-Refusal to permit amend
ment to answer changing defense held proper.
Under L. O. L. § 102, where defendant
asked for an accounting under allegations as
to the contract him certain price

per yard for transportation of building ma-
terials, court properly refused to permit him
to amend answer so as to allege contract re-
quiring plaintiff to supply him with sufficient
work to enable him to make the payments on
an automobile truck and violation of such
agreement by plaintiff entitling him to damages;
such amendment substantially changing the de-
fense and injecting an entirely new issue.

Department 1.

Appeal from Circuit Court, Multnomah
County; Geo. R. Bagley, Judge.

Action by Charles E. Lind against Wil-
liam Boulin. Decree for plaintiff, and de-
fendant appeals. Affirmed, with directions.

parties, and has not credited him with the
customary and reasonable hire for his work,
and has charged him with interest on suins
which he does not owe.
that plaintiff paid for defendant, among other
It is also alleged
items, $331.94, which was then due from de-
fendant to the Copeland Lumber Company,
upon a note and mortgage which was by
plaintiff charged to defendant's account, but
that plaintiff refuses to satisfy the mortgage
upon the records. The prayer is for an ac-
counting and a decree awarding to defend
ant the sum found to be due, and satisfy-
ing upon the records the mortgage. A reply
having joined issue upon equitable matters
set up in the answer, a trial was had as
in equity, and the court made and entered

a decree as follows:

the plaintiff is the owner of and is entitled to
the immediate possession of that certain model
26-A Velie 32-ton truck, with 148-inch wheel
base, with dump body attachment, chassis No.
108, engine No. 13065-E.

"It is ordered, adjudged, and decreed that

"It is further ordered, adjudged, and decreed
that the sheriff of Multnomah county, Or., be
and he hereby is ordered and directed to deliver
the possession of said truck to the plaintiff
forthwith.

"It is further ordered, adjudged, and de-
creed that, in the event the defendant shall pay
to the plaintiff on or before 30 days from the
date of this decree the sum of $2,962.09, he
shall have the right to purchase said truck from
the plaintiff, and upon the payment of said
sum of money' within said time the plaintiff be
and hereby is required to deliver a bill of sale
of said truck to the defendant and thereby
transfer an unincumbered title to said truck to
the defendant.

"It is further ordered, adjudged, and decreed
that, in the event the defendant fails, neglects,
or refuses to pay said sum of $2,962.09 to the
plaintiff on or before 30 days from the date of
this decree, all of the right of the defendant to
purchase said truck shall cease and determine,
and that defendant shall have no further in-

This proceeding began as an action at law,
to replevy a certain motortruck which the
complainant alleges had been wrongfully
taken by the defendant. The defendant,
in accordance with the provisions of section
390, L. O. L., as amended in chapter 95,
Laws of 1917, filed his answer, wherein, after
a general denial, an equitable defense is
pleaded, which, in brief, is to the effect that
in 1914 plaintiff was a contractor in Bell-terest therein.
ingham, Wash., for whom defendant began
working with a Standard truck, hauling con-
struction materials for certain highways,
under an agreement that plaintiff was to

"It is further ordered, adjudged, and decreed
that the plaintiff do have and recover of and
from the defendant his costs and disburse-
ments herein, taxed at the sum of $

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Rehearing denied July 27, 1920.

From this decree defendant appeals. Sanderson Reed, of Portland, for appel

lant.

A. A. Hampson, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondent.

BENSON, J. (after stating the facts as above). Defendant contends that, since plaintiff has not prayed for affirmative relief, the court exceeded its power in granting him a decree of strict foreclosure. This

proceeding was begun as a replevin action, and the defendant followed the procedure set out in chapter 95, Laws of 1917, by pleading an equitable defense, and asking for an accounting, and plaintiff replied, without any specific prayer for equitable relief. The amendment of 1917 was designed to relieve a defendant, having an equitable defense, from the necessity of filing a complaint in the nature of a cross-bill, and permits him to set up such defense in answer to the complaint. The amendment provides

that:

"Equitable relief respecting the subject-matter of the suit may thus be obtained by answer, and equitable defenses to new matter contained in the answer may thus be asserted by reply. When such equitable matter is interposed, the proceedings at law shall be stayed, and the case shall thereafter proceed until the determination of the issues thus raised as a suit in equity by which the proceedings at law may be perpetually enjoined or allowed to proceed in accordance with the final decree, or such equitable relief as is proper may be given to either party."

[1] It will be noted that the statute gives a large discretion to the trial court, and properly so. In the case at bar the complaint alleged the ownership of the truck to be in plaintiff, with the right of immediate possession, which was demanded. The answer denied every allegation of the complaint, alleged ownership of the truck and right of immediate possession in defendant, alleging further that, if an accounting should be had between the parties, it would develop that defendant had paid all of his obligations to plaintiff, and that he would be entitled to recover moneys from him. The reply joined issue thereon, and the case proceeded as a suit in equity, wherein the court found that plaintiff had purchased the truck, taking title in himself, and had agreed to sell it to defendant at cost, giving defendant time in which to make the payments. It was further found that, without having made the required payments, defendant wrongfully took possession of the truck and conveyed it from Bellingham, Wash., to Portland, Ore. An accounting was had, wherein it was determined that, while the defendant had made some payments on the purchase price, he

price which would entitle him to any ownership in the property. If these findings are justified by the evidence, the court might have been content to do no more than to award the immediate possession of the car to the plaintiff, but this course would not have been just as to the defendant, and so, in a spirit of fairness, the decree gives him additional time in which to make his payments and acquire ownership of the property. This, we think, was clearly within the province of the court, under the pleadings and the statute.

[2] It is next urged that the evidence does not sustain the allegation that the taking by defendant was wrongful, and that there is no evidence of any demand for the return It is conceded, of course, of the property. that, if the taking was wrongful, no demand for the return is necessary. The evidence as to whether or not the taking was wrongful is to some extent conflicting and uncertain, but it appears from the defendant's answer that he claims title in himself, and the right of possession, a situation which relieves the plaintiff from the necessity of proving a demand. Brown v. Truax, 58 Or. 572, 115 Pac. 597.

[3] It appears from the record that the work done by defendant for plaintiff, after the purchase of the Velie truck, was done at the agreed price $1.52% per yard, for all of which it is agreed that defendant had received credit. However, defendant sought to show that it was also agreed that he should be supplied with sufficient work at that rate to enable him to make his payments on the truck, and that plaintiff had violated this part of the contract by employing so many trucks that there was not work enough to keep defendant occupied, and that

therefore he should be credited with the reasonable value of his services, which he claimed to be $2.50 per hour. In support of this position, defendant, during the trial. asked leave to amend his answer to include allegations of such breach of the agreement. The denial of this application is assigned as error. The defendant's answer is based upon an express contract, which he seeks to have enforced, but by the proposed amendment he would add a new issue, in the form of a breach of contract and damages therefor. Section 102, L. O. L., provides that during the trial amendments to pleadings may be allowed which do not substantially change the cause of action or defense. The amendment in question does substantially change the defense, and injects an entirely new issue, and was properly denied.

We have carefully analyzed the evidence in the case, and are satisfied that the findings made by the trial court are fully justified thereby. The decree is therefore affirmed, with the provision that the 30 days allowed

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