131 P. 1028 | Or. | 1913
delivered the opinion of the court.
The questions involved here relate to the sufficiency of the complaint to show that the proceedings of the city council in attempting to extend the city boundaries over the plaintiffs’ property were void.
“For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or of this state; nor while engaged in the navigation of the waters .of this state, or of .the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any*118 almshouse, or other asylum, at public expense; nor while confined in any public prison. ’ ’
This court has considered this section of the Constitution in the case of Wood v. Fitzgerald, 3 Or. 573, and we should be governed by the construction of that section there given, unless we find that it is erroneous. In that case Mr. Justice McArthur, who wrote the opinion, says:
“We cannot see the legal-force or propriety of placing such a construction upon that section as would preclude an employee of the United States or state government from making any change in his domicile that he may desire to make. Though such an one cannot gain or lose a residence by reason of his presence or absence when employed in the service, yet he can establish his domicile and gain a residence at such a point as he may see fit by taking the proper and appropriate steps so to do, independently of his employment. In People v. Holden, 28 Cal. 137, it was decided that Section 4 of Article II of the constitution of California (the language of which is almost identical with that of Article ÍI, Section 4, of the constitution of Oregon) does not add to or take from the conditions upon which the fact of residence is made to depend; and it was held that that section meant simply that, in determining the fact of residence, presence or absence in the service of the United States shall not be taken into account, or, in other words, neither presence nor absence in the service of the United States is a condition upon which the fact of residence can be affirmed or denied”: See, also, Darragh v. Bird, 3 Or. 229; Silvey v. Lindsay, 107 N. Y. 55 (13 N. E. 444).
In the case of Warren v. Board of Registration, 72 Mich. 401 (40 N. W. 554, 2 L. R. A. 204), Mr. Justice Campbell, referring to a clause in the Constitution similar to Section 4 of Article II, says: “These provisions do not prevent such persons from becoming residents, if such is their purpose, and if they are able to choose. ”
The extent and purpose of this exception in favor of the state is well stated by Mr. Justice Barbour in United States v. Knight, 14 Pet. 315 (10 L. Ed. 465), where the question related to the right of a United States prisoner to jail liberties, in which the judge says:
“It is first objected that whatsoever may be the construction of this section, as now governing executions, in case of other parties, yet it does not embrace those issued on judgments rendered in favor of the United States; and this upon the ground that the United States are never to be considered as embraced in any statute, unless expressly named. The words of this section being ‘that writs of execution and other final process issued on judgments and decrees rendered in any of the courts of the United States,’ it is obvious that the language is sufficiently comprehensive to embrace them, unless they are to be excluded by a construction founded upon the principle just stated. In Bac. Abr., tit. ‘Prerogative,’ 3-5, it is said that the general rule is that, where an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the king shall be bound by such act, though not particularly named therein. But where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case he shall not be bound, unless the statute is made by express words to extend to him. It is a settled principle that the king is not ordinarily barred, unless named by an act of limitations. The principle expressed in the maxim, ‘nullum tempus occurrit regi,’ rests upon the ground that no laches*122 shall be imputed to him. The doctrine that the government should not, unless named, be bound by an act of limitations is in accordance with that just cited from Bacon, because, if bound, it would be barred of a right, and in all such cases is not to be construed to be embraced, unless named, or what would be equivalent, unless the language is such as to show clearly that such was the intent of the act. The same principle has been decided in New York, Massachusetts, Pennsylvania, and, no doubt, in other states, and all upon the same ground. Not upon any notion of prerogative, for even in England, where the doctrine is stated under the head of prerogative, this, in effect, means nothing more than that this exception is made from the statute for the public good; and the king represents the nation. The real ground is a great principle of public policy, which belongs alike to all governments, that the public interest should not be prejudiced by the negligence of public officers, to whose care they are confided”: Potter v. Fidelity & Deposit Co. (Miss.), 58 South. 714; County of De Kalb v. Atlanta, 132 Ga. 739 (65 S. E. 72).
In State v. City of Milwaukee, 145 Wis. 131 (129 N. W. 1101, 22 Ann. Cas. 1212), it is stated that it is presumed that the legislature does not intend to deprive the crown of any prerogative, rights or property unless it expresses its intention so to do in explicit terms or makes the inference irresistible; and in a note to that case in 22 Ann. Cas. 1216, it is said: “The common-law rule as to the construction of statutes has been said to be subject to these exceptions which are likewise applicable to a state: ‘If a statute is intended to give a remedy against a wrong, the king, though not named, shall be bound by it; and the king is impliedly bound by the statutes passed for the public good, the preservation of public rights, and the suppression of public wrongs, the relief and maintenance of the poor, the general advancement of learning, religion, and justice, or for the prevention of fraud.’ ”
The notice calling the election is set out in full in the complaint, and the defect alleged therein is set out in subdivision 17 thereof, which we understand to be that two separate proposed annexations were submitted at one election by one notice. However, in plaintiff’s brief it is admitted that the notice calling the election required by Section 3209, L. O. L., was duly advertised, and the election regularly held. Therefore we conclude that the complaint does not allege any defects in the proceedings by the city to extend its territory over the territory annexed that render them void, and the demurrer to the complaint should have been sustained.
The decree is reversed, and the suit is dismissed.
Reversed: Suit Dismissed.