Grant County v. Sels

By the Court, Burnett, J.: The complaint in this case alleges that the respondent is a public corporation and a county in the State of Oregon, duly organized according to the laws thereof, under the name of Grant County. That on the first Monday iu June, 1870, the appellant was duly elected judge of said county, and thereafter, on the first Monday in July, 1870, duly qualified according to law and entered upon said office, and that he continued as such officer until the first Monday in July, 1874. That during his said term of office, to wit, from the first day of July, 1872, to the sixth day of July, 1874, the said appellant had and received from said county, without any consideration whatever, in warrants drawn upon the treasury of said county, the sum of eight hundred dollars. That said sum was taken and received by defendant (appellant) from — 244 — said county upon a pretend ed right that he was entitled to have and receive from said county an annual salary of one thousand two hundred dollars as compensation for his services as judge of said county, for said time, when, in truth and in fact, the defendant (appellant) was, from the first day of July, 1872, until the sixth day of July, 1874, only entitled by law for said services to the annual salary of eight hundred dollars and no other or greater sum. Then follows a list of the county warrants alleged to have been drawn in favor of the appellant, and received by him, for the two years from July, 1872, to July, 1874, and amounting altogether to the sum of $2400 (eight hundred dollars of which, it is alleged, was issued without authority of law), and demand for judgment for eight hundred dollars and interest. To this complaint appellant by counsel interposed a demurrer in the court below, upon the grounds: (1.) That plaintiff (respondent) has no legal capacity to sue in this action, in this, that § 346, pages 234 and 235 of the Code, inhibits plaintiff from prosecuting actions of this nature. (2.) That the complaint does not state facts sufficient to constitute a cause of action. The court below overruled the demurrer, and rendered judgment in favor of Grant County, the plaintiff therein, for .the sum of eight hundred dollars, but did not allow any interest thereon. The defendant appeals, and assigns in his notice of appeal the following grounds of error: (1.) That the court erred in deciding that the law of 1870 did not repeal, revise, or amend the law of 1868, relating to the salary of the county’ judge of Grant County, Oregon. (2.) That the court erred in not deciding that the law of Oregon, passed 1870, in relation to the salary of the county judge of Grant County, was unconstitutional and void. (3.) That plaintiff had no legal capacity to sue. The principal question presented to the Court by this appeal is, whether the act of the Legislature of October 26, 1870, entitled “An Act to regulate the salaries of county judge and county treasurer of Umatilla and Grant Counties,” — 245 — is void or not, as being contrary to § 22, Art. IY of the Constitution. The section above referred to reads as follows: “No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” It is a well-settled rule, and one that has been more than once announced by this Court, that before a statute will be declared unconstitutional it must appear very clearly to be so. The opposition between the Constitution and the law should be such that the judge feels a strong and clear conviction of their incompatibility with each other. (Fletcher v. Peck, 6 Cranch, per Marshall, C. J.) Mr. Justice Washington, says Cooley in his work on Constitutional Limitations, gives a reason for this rule which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says: “But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt, so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt.” (Ogden v. Saunders, 12 Wheat. 270.) The authorities are uniform upon this subject, giving the acts of the Legislature the benefit of a reasonable doubt. If, then, we are to hold that the act of 1870, heretofore referred to, is void, it must appear, after a careful examination, to be in plain violation of that section of the Constitution above referred to. We are not prepared to say that such is the case. There may be some doubts about it, and that is as far as we can go; and, being in doubt, we feel bound, in the language of Mr. Justice Washington, to resolve that doubt in favor of the validity of the law in ques — 246 — tion, and to hold that the law of 1870, fixing the salary of the judge of Grant County at eight hundred dollars, is valid, and repeals by implication all prior acts, or parts of acts, that conflict with it. The doctrine of repeal by implication is not' prohibited by our Constitution, and has been recognized and adopted by this Court in the cases of State v. Benjamin (2 Or. 125); Fleischner v. Chadwick, ante, p. 152, and Hurst v. Hawn, post, p. 275. The Constitution of the State of Missouri has a similar provision to that in § 22, Art. IY of our Constitution, and the Supreme Court of that State, having that provision before them in the case of State of Missouri ex rel. C. Maguire, Relator, v. Daniel M. Draper, State Auditor, Respondent (47 Mo. 29), says: “Counsel for relator, to sustain the position that- the constitutional mode of amending laws has not been complied with, refers to Article IY, § 25, which provides that ‘the act revised or re-enacted, or the act or part of act amended, shall be set forth and published at full length, as if it were an original act or provision.’ * * * The statute under consideration, however, does not purport in terms to amend or repeal any particular act or section, and can only be held to have that effect by implication.” 'The court further says: “Counsel urge upon our consideration the embarrassments and inconveniences arising from attempting to amend by implication such important statutes as those pertaining to- revenue, and show that the doubts and uncertainties as to what is really the law, against which the constitutional provision referred to was provided, still exist if such implied amendments or repeals are sustained. “We are fully aware that doubts and uncertainties not only must exist from imperfection of language and want of foresight, but also are often created by the careless or inconsiderate action of legislative bodies. But still we can not pronounce that action illegal, and invalidate the enactment, unless it plainly contravenes some constitutional provision. “The Constitution has gone so far as to prohibit amend — 247 — ments in terms, except in a particular way, but it has not prohibited amendments by implication. It has not said that when an act is passed inconsistent with -a preceding one, so that both cannot stand, the latter one shall be void and the earlier one shall prevail, but has left the law as it always has been, viz., that when two statutes are inconsistent and repugnant, the one last enacted shall be considered in force. This must be so, in the nature of things, for the last enactment is the latest expression of the legislative will, and must prevail, unless it contains some inherent vice that prevents it becoming a statute. In many cases it would be difficult, if not impracticable, to re-enact and repeal all statutes inconsistent with a new enactment. & & it -vS- -Sf Counsel have cited no authorities which deny the power of repeal by implication, and I have been unable to find any. On the other hand cases are numerous, and that have arisen under constitutions like our own, where such repeals are sustained.” Again, in the same opinion, it is said:' “The Constitution is silent upon the question of implied repeals; and whether or not, as so elaborately argued by counsel, the same evil .results from allowing such repeals as those specially provided against in that instrument, we cannot create a new prohibition, or give the present one a scope beyond its import and’beyond the construction universally given it.” It is claimed, by counsel for appellant, that this case falls within the case of Stock v. The City of Portland (2 Or. 69); but this is a mistake, for in that case the act. in question was entitled “An Act to amend an Act entitled ‘An Act to incorporate the city of Portland;’” and the court say it was an attempt to amend an existing law by mere reference to the title, without setting the same forth at full length as amended, showing an entirely different case from the one at b^ir. The next point upon which error is assigned is, that the county has not legal capacity to sue. We are disposed to treat this action as for money had and received, and think the action can be maintained under subdivision 1 of § 346 — 248 — of the Code; for if the appellant received county orders of the value of eight hundred dollars which he has no right to retain, there.would be an implied contract raised by the law in favor of the county, and against the appellant, upon which it could sue. It was further argued, by counsel for appellant, that this was a voluntary payment by the county to the appellant, and that the county cannot recover it bach. It is, perhaps, a sufficient answer to this position to say that no error has been assigned on this point, and though the “demurrer in the court below contained an objection to the complaint on the ground of its insufficiency, yet the appellant seems to have abandoned-that point on his appeal, and the rule is well settled that the appellant can only correct those errors assigned in his notice of appeal, in an action at law.' But, admitting there was a proper assignment of error on this point, or that that point could be raised for the first time in this Court, I do not think a county is in any manner bound by the illegal act of one of its officers. The duties of such officers are pointed out by law, and if they go beyond them their acts are void. If the clerk issues county orders on the county treasury, either with or without directions from the County Court, that there is no authority in law for issuing, they are void. The party who takes such warrants obtains no advantage that will estop the county from asserting her rights and refusing to pay them, or from recovering back their value if the party-refuses to surrender them. In the case of People v. Supervisors of El Dorado County (11 Cal. 170), the Supreme Court of the State of California held that the board Of supervisors of a county possess no power to allow the county auditor compensation for the issuance and cancellation of warrants drawn on the county treasurer; that such a claim is not authorized by law, and the power of the board to allow accounts against the county is confined to those legally chargeable; that county warrants acquire no greater validity in the hands of third parties than they originally possessed in the hands of the first holder, no matter for what consideration they may have been trans — 249 — ferred, or in wliat faith they may have been taken. If illegal when issued they are illegal for all time. There is no doubt of the general rule of voluntary payments, as claimed by appellant’s counsel, but that such does not apply to the case at bar seems to be well sustained by reason as well as by the authorities. In the case of the American Exchange Fire Insurance Company v. Britton et al. (8 Bos., N. Y. Rep. 149), it is held that money exacted by and paid to public officers under a claim of right for their services as such, if they be not entitled thereto, is illegally exacted and may be recovered back, and that such a payment is not a voluntary payment. Judgment affirmed.