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ground, as was the fact here. It is conceded owned by the railway company. There was

. by appellants that, in some states where apparently no dispute that the land of the there is no statute regarding lis pendens, the appellants sought by the railway company courts have held that one who purchases land was not worth to exceed $50 per acre for after the proceedings are commenced takes agricultural purposes. The appellants claim subject to the proceedings. 2 Pomeroy's that the land taken by the railway was a Equity Jurisprudence (2d Ed.) § 632 et seq.; great damage to other lands of appellants 2 Lewis on Eminent Domain, 338. But it is not taken, by reason of the fact that Castle argued that the common-law rule is repealed Rock was valuable as a stone quarry, beby section 4887, which does not apply to cause it contained about 18,000,000 tons of this class of cases. Either the statute or the stone, and that the construction of the railcommon-law rule, one or the other, must be way prevented appellants from quarrying the in force as regards this class of cases, be- stone at a profit. The great burden of apcause, as seen above, no provision in refer- pellants' evidence was to the effect that, ence thereto is made by the statute relat- in order to work the rock known as Castle ing to eminent domain. We think the Legis- Rock at a profit, it was necessary to blast lature used the term "actions affecting the down great quantities of the rock at a time title of real property" as applying to all and throw the same toward the river. Otheractions and proceedings relating to such wise the property could not be worked at a property, and for that reason made no pro- profit, and was therefore of no value. This vision in the eminent domain act for no- same evidence showed without question that, tice to purchasers or subsequent incumbran- in order to do this, the rock would be piled cers pending the suit. The giving of this high upon lands which appellants did not instruction was therefore not error.

own, and could not acquire because such Appellants allege, further, that the court lands were already owned by the railway erred in giving the following instruction : company. It requires no argument to show "You are instructed that, if you find from that, if appellants' property was so situatthe evidence that Castle Rock can only be ed that it could not be utilized without inprofitably worked by blasting it in such a jury to others, its use would not be permitmanner that portions of it would fall upon ted at all; and, if the value of appellants' land now owned by the railroad company, property was dependent upon other property then you may disregard all the evidence of which they did not own and could not acvalue as a quarry. The owners of Castle | quire, then, as shown by the appellants themRock are by law required, if they desire to selves, the property had no value, and, of quarry the same, to so quarry their rock as course, was not damaged. We think the innot to interfere with the rights of others. struction was proper in this case. If you find from the evidence that peti- The verdict and award of damages in this tioner herein owns a right of way across the was $5,000. Appellants contend that Snooks donation land claim and up to the this amount is too small, and that a new land of defendants, then it is the duty of trial should be granted on that account. Aftthe defendants or claimants to quarry the er a careful reading of all the evidence in rocks so as not to interfere or trespass upon the case, we are satisfied that the appelthis right of way, and you are not to con- lants have no good reason to complain on sider the inability of defendants or claim- this account, and that a much smaller award ants to use this right of way on the Snooks would have been sustained. donation land claim as an element of de- The questions presented which we have fendants' damages whereby the property not not noticed are either decided by what we taken by this action is damaged. The dam- have said above or are not deemed of suffiage you are to consider is confined to that cient importance to warrant a reversal. which arises and naturally flows from the We find no reversible error in the record, appropriation of the land for a right of way and the judgment is therefore affirmed. across defendants' land, which is sought by this suit." The evidence shows that the

HADLEY, C. J., and ROOT, CROW, and right of way of the railway runs close to

DUNBAR, JJ., concur. the base of a large rock, several hundred feet in height, the exact measurement not being shown, known as “Castle Rock"; that RU'DKIN, J. (dissenting). I do not think one face of this rock is toward the Columbia that the mere fact that a stone quarry canriver, which is 400 or 500 feet distant from not be profitably worked at the present time, the rock ; that the railway runs between the without blasting and casting rock on the rock and the river; that the appellants did property of others, entirely destroys its value not own all the land between the river and as such; and I therefore dissent from the the rock; that a large portion thereof was judgment.

(50 Or. 269)

"'Warning. STEVENS V. BENSOX, Secretary of State. 'It is a felony for any one to sign any (Supreme Court of Oregon. Sept. 3, 1907.)

initiative or referendum petition with any

name other than his own, or to knowingly 1. CoxstiTUTIONAL LAW – LEGISLATIVE AC

sign his name more than once for the same TION-DIRECTION-SELF-EXECUTING PROVISIONS.

measure, or to sign such petition when he is Const. art. 4, § 1, as amended in 1902, re- not a legal voter. serving to the people initiative and referendum powers, and providing for the submission of

'Petition for Referendum. legislation to the voters of the state or other " "To the Honorable ......, Secretary

of political subdivision, is self-executing.

State for the State of Oregon (or to the 2. SAME-ENFORCEMENT-STATUTES.

Honorable .. Clerk, Auditor, or ReLaws 1907, p. 399, providing the procedure to facilitate the enforcement of the initiative corder, as the case may be, of the City and referendum powers reserved to the people

of ......): by Const. art. 4, § 1, as amended in 1902, was

"'We, the undersigned citizens and legal a proper exercise of legislative power, though the constitutional provision was self-executing.

voters of the state of Oregon (and the district 3. STATUTES-DJRECTORY PROVISIONS.

of ......, county of ......, or city of ......, Laws 1907, p. 399, providing for the carry. as the case may be), respectfully order that ing into effect of the initiative and referendum the Senate (or House) Bill No...., entitled powers reserved to the people, provided (section

(title of act, and if the petition is against 1) a form of petition, which was required to be substantially followed. The form contained a

less than the whole act then set forth here warning clause that it was a felony for any the part or parts on which the referendum is one to sign any such petition with any name

sought), passed by the ...... legislative asother than his own, or to knowingly sign his name more than once to the same measure, or

sembly of the state of Oregon, at the regular to sign such petition when he was not a legal | (special) session of said legislative assembly, voter; and section 2 declared that the form shall be referred to the people of the state given was not mandatory, and if substantially

(district of ......, county of

..., county of ......, or city followed in any petition it should be sufficient, regardless of clerical or mere technical errors

of ......, as the case may be), for their apHeld, that the form, in so far as it contained proval or rejection, at the regular (special) the warning clause, was merely directory, and election to be held on the ... day of ......, that a referendum petition omitting such clause

A. D. 19. ., and each for himself says: I was not thereby fatally defective.

bave personally signed this petition. I am Appeal from Circuit Court, Marion Coun- a legal voter of the state of Oregon, and (disty; Wm. Galloway, Judge.

trict of ......, county of ......, city of ... Suit by Robert L. Stevens against F. W. ..., as the case may be). My residence and Benson, as Secretary of State. From a de- post office are correctly written after my cree in favor of complainant, defendant ap- Dame.' peals. Reversed. Suit dismissed.

"Sec. 2. * * * The forms herein given A. M. Crawford, L. R. Webster, and S.

are not mandatory, and if substantially fulSmith, for appellant. Dan J. Malarkey and

lowed in any petition it shall be sufficient, John F. Logan, for respondent.

disregarding clerical and merely technical er

rors." EAKIN, J. On May 18, 1907, there was The provisions of the Constitution infiled in the office of the Secretary of State a volved are as follows: section 1, art. 4, petition for referring to a vote of the people amendment of 1902, namely: "The legislaof the state, under the referendum provision tive authority of the state shall be vested in of the Constitution, an act passed by the leg- a legislative assembly, consisting of a Senate islative assembly in February, 1907, provid- and House of Representatives, but the people ing for the custody and control of persons reserve to themselves power to propose laws confined in county jails, etc.; and this suit and amendments to the Constitution and to was brought by plaintiff to enjoin defendant, enact or reject the same at the polls, indeas Secretary of State, from filing said peti-pendent of the legislative assembly and also tion tendered. Demurrer to the complaint reserve power at their own option to approve was overruled, and final decree thereupon or reject at the polls any act of the legislarendered enjoining the filing of the petition. tive assembly. The first power reserved by

The objection to the petition was that it did the people is the initiative, and not more not contain the warning clause required by than eight per cent, of the legal voters shall section 1 of the act of the legislative assembly be required to propose any measure by such of 1907 (Laws 1907, p. 399), which provides petition, and every such petition shall infor carrying into effect the initiative and ret- clude the full text of the measure so proerendum. Section 1 of that act provides posed. Initiative petitions shall be filed with that:

the Secretary of State not less than four "The following shall be substantially the months before the election at which they are form of petition for the referendum to the to be voted upon. The second power is the people on any act passed by the legislative referendum, and it may be ordered (except assembly of the state of Oregon, or by a city as to laws necessary for the immediate pres. council:

ervation of the public peace, health, or safe 91 P.-37

ty), either by the petition signed by fire per retition, but also forestalling any possibility cent. of the legal voters, or by the legislative of deieat, by inaction of the Legislature in assembly, as other bills are enacted. Refer- regard to the manner of its submission to endum petitions shall be filed with the Secre- the people. As said in Willis v. Mahon, sutary of State not more than ninety days aft- pra: "The object being to put it beyond the er the final adjournment of the session of the power of the Legislature to render them nulegislative assembly which passed the bill gatory by refusing to enact legislation to on which the referendum is demanded. carry them into effect." If it were not self* * * Petitions and orders for the initia- executing, even though it were manilatury tive and for the referendum shall be filel upon the Legislature to make provision to with the Secretary of State, and in submit- carry it into effect, there is no power to comting the same to the people be, and all other pel it to do so. The exercise of that power officers, shall be guided by the general laws in any particular case must depend on the and the act submitting this amendment un- volition of the Legislature. Cooley's Const. til legislation shall be especially provided Lim. (7th Ed.) 121; In re State Census, o S. therefor."

D. 510, 62 X. W. 129; People ex rel. v. RunThe question arises: Is this section of the sey, 61 Ill. 11. Thus a strong reason appear's Constitution self-executing? A constitution- why it was intended to be self-executing, al provision is said to be self-executing if it and it should be so considered. enacts a sufficient rule by means of which 2. But, when a provision of the Constituthe right given may be enjoyed and protect- tion is self-executing, legislation may be ed. The language used, as well as the ob- desirable for the better protection of the ject to be accomplished, is to be looked into right secured and to provide a more specific in ascertaining the intention of the provision. and convenient remedy for carrying out suci As said in Willis v. Mabon, 48 Minn. 140. provision, and it is plain that the statute in 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. question was intended for that purpose, and Rep. 626: "The question in every case is reduces to a system and simplifies the prowhether the language of a constitutional pro- ceeding, makes every step definite, as well vision is addressed to the courts or the Leg- as placing safeguards around it to protect it islature. Does it indicate that it is intended from abuse, without curtailing the right as a present enactment, complete in itself as or placing any undue burdens upon its exerdefinitive legislation, or does it contemplate cise. As said by Judge Cooley, in his work subsequent legislation to carry it into effect? on Constitutional Limitations (page 122), a This is to be determined from a considera- constitutional provision that is self-executing tion both of the language used and the in- may admit of supplementary legislation in trinsic nature of the provision itself. If the particulars where in itself it is not as comnature and extent of the right conferred and plete as may be desirable. It will also overof the liability imposed are fixed by the pro- ride and nullify whatever legislation, either vision itself, so that they can be determined prior or subsequent, would defeat or limit by the examination and construction of its the right. Reeves v. Anderson, 13 Wash. 17, own terms, and there is no language used in- 42 Pac. 625; Beecher v. Paldy, 7 Mich. 188; dicating that the subject is referred to the Willis v. Mabon, supra; Swift & Co. v. City Legislature for action, then the provision of Newport News, supra. And so the Legisshould be construed as self-executing." To lature may enact laws to facilitate the enthe same effect are Acme Dairy Co. v. City forcement of constitutional provisions that of Astoria (Or.) 90 Pac. 153; Swift & Co. v. are self-executing, and such laws will be obCity of Newport (Va.) 52 S. E. 821, 105 Va. ligatory upon the court when intended by the 108, 3 L. R. A. (N. S.) 401; Taylor v. Hutch- Legislature to be mandatory, so long as they inson, 145 Ala. 202, 10 South. 108; Logan et do not curtail the rights reserved or exceed al. v. Parish of Ouachita, 105 La. 499, 29 the limitations specified therein. Ordronaux's South. 975. As expressed by one court, Constitutional Legislation, 262–265; People whether it is intended thereby to declare v. Draper, 15 Y. Y. 532. Cooley's Constitupersonal rights of a citizen or to define a rule tional Limitations (7th Ed.) 126, lays down a for the government of the Legislature; and, fundamental rule as to the power of the Legif the former, it is legislative, and needs no islature in such cases as follows: "In creatlegislation to give it force. It is plainly ing a legislative department and conferring expressed in the provision itself in this case upon it the legislative power, the people that its reserved rights are to be independent must be understood to have conferred the of the Legislature, and is sufficiently specific full and complete power as it rests in and that it may be carried out without legislative may be exercised by the sovereign power of aid (Logan et al. v. Parish of Ouachita, su- any country, subject only to such restrictions pra); and in the last clause it provides that as they may have seen fit to impose and to the Secretary of State, in submitting to the the limitations which are contained in the people the matter referred, shall be governed Constitution of the t'nited States. The legLoy the general laws until further provision islative department is not made a sperial is made by the Legislature, thus not only agency for the exercise of specifically defined contemplating that such legislation is not legislative powers, but is intrusted with the necessary as to procuring and presenting the general authority to make laws at discretion." And in Willis v. Mabon, supra, the complishes the substantial purposes of the court holds, that the remedy for enforcement statute." To the same effect are 23 Am. & of a self-executing constitutional right is Eng. Ency. 438; Thomson v. Harris, 88 Hun, always within the control of the Legislature 431, 34 N. Y. Supp. 885; Custer County v. to modify, change, or make exclusive, pro- Yellowstone County, 6 Mont. 39, 9 Pac. 586. vided only it remains adequate, but is be- Negative words, or words of prohibition, or youd the power of the Legislature to defeat à penalty affixed to the requirements of a its object. Hickman v. City of Kansas, 120 statute, make such provision mandatory, and Mo. 110, 23 S. W. 223, 23 L. R. A. 658, 41 must be complied with, or where the requireAm. St. Rep. 684.

ment is a necessary element of the thing to 3. It is claimed by defendant, however, be done, or affects the rights or burdens of that the statute in this case, in so far as it the persons interested, it must be observed. relates to the warning clause contained in the People v. Supervisors of Ulster, 34 N. Y. 268; form for the petition, is directory only, and Corbett v. Bradley, 7 Xey. 108. But the dithat it constitutes no element of the petition

rections in a statute which are not of the proper, and therefore its omission from the essence of the thing to be done, but which petition in this case is not fatal. The stat- are given with a view to the orderly and ute has not in terms enacted that there shall prompt conduct of the business, and by a be a warning clause upon the petition, but

failure to do which the rights of those inonly in giving the form of the petition in- terested will not be prejudiced are not comcluded a warning therein, which it provides monly to be regarded as mandatory. 5 Words "shall be substantially the form of petition," and Phrases, 4332; Custer County v. Yellow. and further provides that “the forms herein stone County, supra; Bladen v. Philadelphia, given are not mandatory, and if substantial- 00 Pa. 161. But there is an absence of anyly followed in any petition it will be suffi- thing indicating an intention that it shall be cient, disregarding clerical and merely tech- mandatory. On the contrary, it is clear that nical errors.” This part of the statute is

it is only directory. It is not of the essence only a provision of a form to aid in carrying

of the thing to be done, viz.: Direct the Sec. out a right already existing independent of

retary of State to submit to the vote of the the statute, and expressly states that it is

people at the next election the act known as not mandatory. Lewis' Sutherland's Statu

House Bill No. 213." There is no affirmatory Const. § 627, says: “When the proceed

tive provision for it in the act, nor negative or ing is permitted by the general law, and an

prohibitive words relating thereto, and the act of the Legislature directs a particular

statement following the forns that they shall form and manner in which it shall be con

not be mandatory leads us to the conclusion ducted, then it will depend on the terms of

that the statute providing the warning clause the act itself whether it shall be considered

in the form of petition is only directory, and merely directory, subjecting the parties to

its omission from the petition does not rensome disability if it be not complied with, or

der it void; and the Secretary of State propwhether it shall render the proceeding void."

erly received the same for filing, and the lowIf the Legislature creates a right, and at the

er court erred in overruling the demurrer

and in granting the injunction. same time prescribes the mode of its exer

Therefore the decree of the lower court is cise, then such mode would be mandatory

reversed, and, this being the only question and exclusive; but when the right exists,

involved in the case, decree will be entered and may be exercised effectually without such

here dissolving the injunction and dismissing provision, and the legislative provision only

the case. relates to its better enforcement, the intention of such provision must be gathered from

BEAY, C. J., did not take part at the hearthe act and its declared purpose, whether it

ing of this case and Palmer v. Benson, infra, shall be construed mandatory or directory. Section 611 of Sutherland provides: “Unless

being a regent of the University of Oregon, a fair consideration of a statute, directing

the party interested in the latter case, and the mode of proceeding of public officers,

the question here being involved in both. shows that the Legislature intended compliance with the provision in relation thereto to

(50 Or. 277) be essential to the validity of the proceed

PALMER et al. v. BENSOX, Secretary of ings, it is to be regarded as directory merely.

State. Those directions which are not of the essence of the thing to be done, but which are (Supreme Court of Oregon. Sept. 3, 1907.) given with a view merely to the proper, order

STATUTES-REFERENDUM-PETITIOX. ly, and prompt conduct of the business, and Laws 1907, p. 399, § 1, provides a form of by the failure to obey which the rights of

petition for the carrying into effect of the retthose interested will not be prejudiced, are

erendum powers reserved to the people, and sec

tion 2 declares that every sheet of the petition not commonly to be regarded as mandatory; for petitioners' signatures shall be attached to a and if the act is performed, but not in the

full and correct copy of the title and text of the

measure so proposed by the initiative petition, time or in the precise mode indicated, it will

but such petitico may be filed with the Secretary still be sufficient if that which is done ac- of State in numbered sections, for convenierce

in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. II eld that, while an initiative petition is required to contain a correct copy of the title of the act, a referendum petition containing a full and correct copy of the act without the title is sufficient.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Mandamus, on petition of Eugene Palmer and another, against F. W. Benson, as Secretary of State. From a judgment denying the writ, petitioners appeal. Reversed and remanded, with directions.

Tilmon Ford and M. E. Pogue, for appellants. A. M. Crawford and Geo. G. Bingham, for respondent.

EAKIN, J. On the 23d day of May, 1907, the plaintiffs and others presented to the Secretary of State for filing a petition directing a reference to the people, under the referendum provision of the Constitution, of a measure passed by the legislative assembly in February, 1907, known as “House Bill No. 37,” to increase the annual appropriation for the support of the University of Oregon. Defendant refused to receive or file the said petition, and the plaintiffs bring this proceeding by mandamus to compel defendant to file said petition. Defendant answered to the writ of mandamus, denying the allegations of the same and alleging affirmatively that said petition is not in the form prescribed by section 1 of the act of the legislative assembly of 1907 (Laws 1907, p. 399), providing for carrying out the initiative and referendum, in that it did not contain the warning clause provided for in said act, and, further, that it does not contain a full and correct copy of the title and text of the measure sought to be referred. A reply was filed to the answer, and the cause tried in the court below upon the pleadings alone, and only two questions raised by the answer are suggested upon this appeal.

The objection made by defendant that the petition does not contain the warning clause provided by the statute has been fully considered in the case of Stevens v. Benson, 91 Pac. 577, just decided, and the decision in that case disposes of the objection here adversely to defendant. The only other question for consideration is whether the petition for the referendum must be attached to a full and correct copy of the title and text of the measure to be referred, or whether a full and correct copy of the text of the measure is sufficient.

The constitutional provision and the form of petition provided by the statute, upon which the proceeding is based, are set out in full in Stevens v. Benson, supra. Section 2 of the act to provide for carrying into effect the initiative and referendum (Laws 1907, p. 399), so far as it relates to the question

here discussed, is: “Every such sheet for petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed by the initiative petition; but such petition may be filed with the Secretary of State in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not more than twenty signatures on one sheet shall be counted,” etc. The petition in this case did contain a full and correct copy of the text of the act, but erroneously gave the title of the act as “A bill for an act to increase the annual appropriation for the support and maintenance of the University of Oregon," when the real title of the act as passed is "An act to amend section 3529 of Bellinger & Cotton's Annotated Codes and Statutes of Oregon, by increasing the annual appropriation for the support and maintenance of the University of Oregon," and this discrepancy in setting out the title of the act is the ground assigned for the insufficiency of the petition. The purpose of the title to a bill or measure before the Legislature is, as stated in Clemmensen v. Peterson, 35 Or. 48, 56 Pac. 1016, “to prohibit the Legislature from combining in one act subjects wholly incongruous, diverse in their nature, and haring no perceptible or necessary connection with each other, and to obviate the practice of inserting in an act clauses involving matter of which the title is not calculated or adequate to give or convey any intimation. Thus it was designed by the framers of the Constitution that in every case the proposed measure should stand upon its own merits, and that the Legislature should be fairly satisfied of its purpose by an inspection of the title, when required to pass upon it, so as not to be surprised or misled by the subject which the title purported to express." Neither the reason nor the necessity for such a title to a bill before the Legislature exists with reference to the referendum proceeding. The purpose of the petition for referendum is to identify a particular enactment of the legislative assembly which the petitioners desire to have referred to the people—a question of identity, not of legislation. There is a distinction in that regard between the referendum and the initiative, in which latter legislation is initiated and the whole matter must be formulated just as it is to be submitted to the people, while in the referendum it is only a question of the approval or disapproval by the people of what the Legislature has already enacted as a law. Section 1 of article 4 of the Constitution recognizes this distinction by providing that the initiative petition shall "include the full text of the measure," while as to the referendum no reference is made as to the manner in which the measure shall be mentioned in the peti

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