State v. Hines

186 P. 420 | Or. | 1920

JOHNS, J.

1. Much of the original relator’s brief is devoted to the question of whether or not the constitutionality of the act can be tested in a mandamus proceeding. That matter is not controverted by the defendant, and the weight of authority sustains the relator.

2. The case of New Mexico ex rel. E. J. McLean & Co. v. Denver & Rio Grande R. R. Co., was first decided by the Supreme Court of New Mexico, 12 N. M. 425 (78 Pac. 74, 79 Pac. 295), and later affirmed by the United States Supreme Court, 203 U. S. 38 (51 L. Ed. 78, 27 Sup. Ct. Rep. 1, see, also, Rose’s U. S. Notes). In 1884 the territory of New Mexico enacted a law providing that all butchers should keep a record of all animals slaughtered and should keep the hides and horns free for inspection for thirty days. This law was later amended to provide that any inspector employed by the sanitary board should have the right at any time to enter any slaughter-house or other place where cattle were killed,, to examine the same, and the books and records required to be kept therein, and to compare the hides found with such records. In 1901 Section 3 was added to the original act, reading thus:

“Hereafter it shall be unlawful for any person, firm or corporation to offer, or any railroad company or other common carrier to receive, for the purpose of * * transportation beyond the limits of this Territory, any hides that have not been inspected and tagged by a duly authorized inspector of the cattle sanitary board of New Mexico, for the district in which such hides originate.”

It was vigorously contended that the whole law, this section in particular, was unconstitutional, but such claim was overruled by both decisions, the Supreme Court of the United States saying:

“The purpose of these provisions is apparent, and it is to prevent the criminal or fraudulent appropriation of cattle by requiring the inspection of hides and registration by a record which preserves the name of the shipper and purchaser of the hides, as well as the brands thereon, and by which is afforded some evidence, at least, tending to identify the ownership of the cattle. It is evident that the provision as to the shipment of the hides beyond the limits of the Territory is essential to this purpose, for if the hides can be surreptitiously or criminally obtained and shipped beyond such limits, without inspection or registration, a very convenient door is open to the perpetration of fraud and the prevention of discovery. * *

“We see no reason why an inspection law which has for its purpose the protection of the community against fraud and the promotion of the welfare of the people cannot be. passed in the exercise of the police power, when the legislation tends to subserve the purpose in view. In the Territory of New Mexico, and other parts of the country similarly situated, it is highly essential to protect large numbers' of people against criminal aggression upon this class of property. The exercise of the police power may and Should have reference to the peculiar situation and needs of the community. The law under consideration, designed to prevent the clandestine removal of property in which a large number of the people of the Territory are interested, seems to us an obviously rightful exercise of this power.”

3. There is no legal question about the right of the legislature to enact a law for the inspection of hides as one condition of their shipment by a common carrier. It will be found upon an examination of the New Mexico law that there are no exceptions or reservations in the original act or any amendment thereto. It must be remembered that Section 3 of the act of 1919 provides, “that this act is not to be deemed to apply to farmers or ranch owners who slaughter their own animals, or to small, isolated dealers who purchase and ship hides to central dealers.” 3 Words & Phrases, page 2699, defines the word “farmer” as “one who resides on a farm with his family, cultivating such farm and mainly deriving his support ■ from it.” Webster defines the word “ranch” as “a tract of land used for grazing and' the rearing of horses, cattle or sheep.” Assuming that the words “farmer” and “ranch owner” have a certain, specific-legal meaning, how can a common carrier determine whether or not the consignor of hides is a farmer or ranch owner who has slaughtered his own animals, or that he is a small or isolated dealer for that the consignee is a central dealer? Yet under the provisions of the act all of such individuals have a right to have hides shipped without inspection. As stated, the purpose of the law is to detect and prevent the stealing of livestock. It is a matter almost within the judicial knowledge of this court that from -the very nature of things the stock “rustler” largely conducts his nefarious operations in sparsely settled country and isolated sections, where hides from stolen stock would have their origin of shipment. But such portions of the state are denied the benefits of the protection intended to be provided by the act.

4. To arrive at the true meaning of the exemptions embraced in Section 3 of the act of 1919 above quoted, reference must be made to Section 16 of Chapter 33, Laws of 1915, reading thus:

“The governor shall at any time after the passage andl approval of this act, upon request of the Cattle & Horse Baisers’ Association of Oregon, appoint a stock inspector or inspectors for any stock yard or yards in the state of Oregon, the compensation of such stock inspector or inspectors to be agreed upon and paid by said Cattle & Horse Baisers’ Association of Oregon. * * ”

It will be noted that by Section 3 of Chapter 404, Laws of 1919, “Multnomah County, Oregon, is to be exempt from the terms of this act so long as a state brand and livestock inspector is maintained at the Union stockyards, North Portland, Oregon.” That is to say, a stock inspector for Multnomah County is to be appointed by the Governor, at the request of the Cattle & Horse Baisers’ Association and on condition that the association pay for his services. Hence, it must follow that if the association does not make the request, or declines to pay for the services of the inspector, Multnomah County would not have an inspector and would not be exempt from the requirements of the act. When these two sections are construed together, it is a matter entirely in the discretion of the Cattle & Horse Baisers’ Association as to whether or not Multnomah County shall be exempt from the provisions of the act of 1919.' It is contended that this is a delegation of the legislative power and for that reason is unconstitutional. Section 1 of Article IV of the Constitution says:

“The legislative authority of the state shall he vested in a legislative assembly, consisting of a senate and house of representatives. * * ”

And Article I, Section 21, reads thus:

“No ex post facto law or law impairing the obligations of contracts, shall ever be passed, nor shall any law be passed, the taking effect of which shall be made, to depend upon any authority, except as provided in this constitution. * * ”

These latter sections have been construed by this court in the case of Portland v. Coffey, 67 Or. 507 (135 Pac. 358), where it was held:

“If a statute is complete within itself when it comes from a legislative assembly, it is a general law and effective throughout the entire state, though its operation in particular localities may be made to depend upon a majority vote of the qualified electors thereof: Elliott, Elements Mun. Corp., Section 60.

“The principle thus announced is well.recognized in this state, where it has been held that-a general statute, complete in itself, requiring nothing else to give it validity, could be made applicable to a particular section by a vote of the qualified electors: Fouts v. Hood River, 46 Or. 492 (81 Pac. 370, 7 Ann. Cas. 1160, 1 L. R. A. (N. S.) 483). The application of the act under consideration is not made to be appropriated to any particular district upon any vote of the people, who are regarded as the source from which legislative authority emanates, but the validity of the enactment is to depend upon a decisión of the Supreme Court. This is, in effect combining independent departments of the state government which the organic law declares shall be kept separate: Article III, Section 1, of the Constitution of Oregon. ”

The same doctrine is sustained in Slinger v. Henneman, 38 Wis. 504, and Mitchell v. State, 134 Ala. 392 (32 South. 689). Therein lies the distinction between the instant case and the authorities cited by the defendant.

In its present form, Chapter 404, Laws of 1919, is a delegation of the legislative power to the Cattle & Horse Raisers’ Association of Oregon. We hold that the act as it now stands is unconstitutional and void.

The demurrer is overruled and the writ is sustained.

Demurrer Overruled.

Bean, J., was not present at the hearing. Bennett, J., does not express any opinion.