66 P. 815 | Or. | 1901
delivered the opinion.
This is a mandamus proceeding to compel the defendant, as county clerk and ex officio clerk of the circuit court for Union County, to perform an act which it is alleged the law specially enjoins upon him as a duty resulting from his office. The facts are that by an act of the legislative assembly which took effect March 1,1901, purporting to annex a part of Union County to the County of Baker, the clerk of Union County was required, within thirty days after said act should become operative, to make out and deliver to the clerk of Baker County certain transcripts, and also to deliver certain original papers on file in his office: Laws, 1901, p. 435. An alternative writ, averring that the defendant refused and still refuses to discharge the duty so enjoined upon him, having been issued, commanding him to perform the same, or show cause why he had not done so, for return thereto he denied the material averments contained therein, and alleged, in effect, the following separate defenses: (1) That he is entitled to ten cents per folio for mailing transcripts of the records and files of his office; that, having been requested to comply with the provis
Examining the separate defenses in the order in which they are alleged, the first question to be considered is whether the defendant, as clerk of Union County, can be compelled to deliver the transcripts required without being paid therefor by Baker County. His counsel contend that the statute has prescribed his salary, which is in lieu of all fees or other compensation for his services (Laws, 1895, p. 77), except for furnishing to private parties copies of the records and files of his office, for which he is entitled to charge them ten cents a folio (Laws, 1901, p. 285); that Baker County is a private party, within the meaning of said act, and obliged to pay the fees prescribed for the performance of the duty enjoined, and, not having done so upon a demand therefor, the court erred in
But if it be assumed that the making of the required transcripts constitutes “particular services,” within the meaning of the clause of the constitution alluded to, even then we do not think the defendant can demand from Baker County the payment of his fees in advance; for, the State of Oregon being exempt from the necessity of tendering such fees in advance, a county, which is a governmental division of the state, must, also be exempted, on the principle that the greater includes the less. Judge Cooley, in his work on Constitutional Limitations (6 ed.), p. 692, in discussing this question, says: “When the property is taken directly by the state, or by any municipal corporation by state authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it. The decisions upon this point assume that, when the state has provided a remedy, by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction, since the property of the municipality or' of the state is a fund to which he can resort without risk of loss.” In Branson v. Gee, 25 Or. 462 (36 Pac. 527, 24 L. R. A. 355), it was held, in construing a statute authorizing a road supervisor summarily to take from the owner materials needed for the public roads, and another statute providing that the party aggrieved by such taking might apply
In order to ascertain where the power lies to assess property and collect taxes therefrom, to determine the jurisdiction
In McWhirter v. Brainard, 5 Or. 426, the court, in speaking of an act providing for the location of a county seat at either of five designated places, as the electors of the county might declare by a majority vote, says: “The power of location is exercised by the legislative assembly, but it takes effect in a particular mode, or not at all, by a vote of the electors interested. ” It is maintained that the language quoted is directly in point, and the authority controlling in this case. If it was meant by the decision relied upon that all local and special laws must be submitted to the electors interested for their approval by a majority vote before such acts could become operative, we cannot yield our consent to such a conclusion. The court Avas evidently discussing the necessity for complying with the provisions of an act which required that the location of a county seat should be determined by a vote of the electors interested, and what was there said must apply to the particular facts involved; that is, the legislative assembly having prescribed the mode in which the act was to take effect, the method indicated Avas exclusive, and, if not pursued, the act could not take effect. We do not think the constitution of this state makes it obligatory upon the legislative assembly in any instance, except in the original selection or subsequent relocation of the seat of government (Const. Or. Art. XIV, §§ 1, 3), to submit a local or special act to the electors interested for their determination by a majority vote before such act can become operative; but it may, in its discretion, so submit local and special laAVS, and when it does so the manner prescribed must
“See. 3. The senators and representatives shall be chosen by the electors of the respective counties or districts into which the state may from time to time be divided bylaw.”
' ‘ ‘ Sec. 5. The legislative assembly shall, in the year eighteen hundred and sixty-five, and every ten years after, cause an enumeration to be made of all the white population of the state. ’ ’
“Sec. 6. The number of senators and representatives shall, at the session next following an enumeration of the inhabitants by the United States or this state, be fixed by law, and appor
‘ ‘ Sec. 7. A senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating senatorial districts.1 ’
It is argued that the legislative assembly, having apportioned the number of senators among the several counties of the state, exhausted the measure of power delegated, and was without authority, until another federal or state enumeration of the inhabitants was taken, to make a reapportionment. In support of this principle several eases are cited, but in most of them the constitutions of the respective states prohibited a reapportionment until another enumeration could be taken. Thus, in People ex rel. v. Holihan, 29 Mich. 116, it was held that the legislature had no authority to enlarge the boundaries of a city by annexing to it parts of adjoining townships in such manner as to interfere with the boundaries of representative districts at a time when any alteration therein was forbidden by the constitution, which provided for the apportionment of senators and representatives among the counties and districts according to the number of inhabitants in 1854 and every ten years thereafter, and also contained the following claiise: “Each apportionment and the division into representative districts by any board of supervisors shall remain unaltered until the return of another enumeration.” In People ex rel. v. Board of Sup’rs, 147 N. Y. 1 (41 N. E. 563, 30 L. R. A. 74), by an act of the legislature of New York a part of the
No error, having been committed by the court in sustaining the demurrer, it follows that the judgment is affirmed.
Affirmed..