State v. Wells, Fargo & Co.

On Motion to Dismiss Appeal. Mr. Justice Moore delivered the opinion of the court. This action is based on Section 3540 et seq., L. O. L., and was instituted to recover from an express company licenses of 3 per cent, of its annual gross receipts in Oregon, and 10 per cent additional as penalties for failure to pay the sums so prescribed for the privilege of conducting the business in this State. The complaint contains three separate causes of action to obtain by course of law the sums of $4,154, $9,907.77, and $7,796 as [424] licenses and penalties for the years 1906, 1907, and 1908, respectively. The answer to each cause of action set up three separate defenses, viz.: That the act hereinbefore referred to and pursuant to which the tax was undertaken to be imposed was an attempted exercise of the initiative power reserved to the electors by an amendment of the fundamental law of the State (Constitution, Article IV, Section 1), which alteration contravened the provisions of the Federal Constitution; that the statute mentioned had been repealed by an act of the legislative assembly, approved February 28, 1907 (Laws 1907, p. 458) ; and that the statute first adverted to had also been abrogated by an act of the legislature filed in the office of the Secretary of State February 24, 1909 (Laws 1909, p. 345). A demurrer to the several defenses was interposed on the grounds that the facts thus set forth were insufficient to constitute a justification, or a confession and avoidance, of the allegations of the complaint. The demurrer to the separate defenses put forward to the first and second causes of action was sustained, but was overruled as to the third. Thereupon counsel for the respective parties stipulated that the entry of a judgment herein should be deferred until a decision was reached by the Supreme Court of the United States on a writ of error to the Supreme Court of Oregon, wherein the validity of the gross earnings tax of 1906, an initiative act, was involved; that, if such act were upheld, judgment should be rendered against the defendant for the sum of $14,061.77, the amount of the first and second causes of action, with interest thereon from June 29, 1909, and for the costs and disbursements, but, if the act were declared invalid, judgment should be entered for the defendant for its costs and disbursements, and that plaintiff take nothing by its action. The cause thus referred to was dismissed for want of jurisdiction, thereby impliedly upholding the validity of the initiative act. Pacific States Tele [425] phone & Telegraph Co. v. State of Oregon, 223 U. S. 118 (32 Sup. Ct. 224: 56 L. Ed. —.) Pursuant to the stipulations mentioned, judgment was entered April 1, 1912, in favor of the plaintiff and against the defendant for the sums specified, which award was paid in full and satisfied of record two days later. As to the third cause of action stated in the complaint, it was determined that-'plaintiff take nothing thereby. From this latter judgment the plaintiff appealed, and, the cause having been transferred, the defendant’s counsel moved to dismiss the appeal on the grounds that the part of the judgment undertaken to be reviewed was a necessary incident to the remainder, from which no appeal had been taken, that the judgment was entered pursuant to stipulations of the parties and for that reason it was not reviewable, and that the sums so awarded have been paid into court by the defendant, accepted by the plaintiff, and the judgment satisfied, and hence there is nothing from which an appeal will lie. 1, 2. Considering the reasons assigned in the order stated, the rule is well settled in this State that, when the provisions of a judgment are so intimately connected and reciprocally dependent that a reversal as to one part would necessarily change other portions, a party cannot accept the benefits of the provisions in his favor and retain his right of appeal. Moore v. Floyd, 4 Or. 260; Inverarity v. Stowell, 10 Or. 261. Though the complaint herein sets forth three distinct causes of action, each is as separate as if it were based on the different primary pleading. Taffe v. Smyth, 62 Or. 227 (125 Pac. 308, 313). The judgment predicated on the first and second causes of action is not therefore so closely related to, or contingent upon, the third cause as necessarily to demand a reversal of the determination of either of the former, in case the order dismissing the third cause of action were set aside on appeal. 3. In stipulating that the entry of a judgment for a specified sum equivalent to the amount demanded in the [426] first and second causes of action should be deferred until a decision was reached by the' Supreme Court of the United States in a case involving the validity of an act initiated by petition and ratified by the electors of Oregon, no reference was made to the third cause of action to which the demurrer had been sustained. Under the maxim that the inclusion of one or more items of a bill of particulars excludes all others, it might seem to follow that the stipulation for entering a judgment impliedly, at least, contemplated a final determination of the entire cause by consent of the parties so as to preclude an appeal. The right of a superior court to review the determination of an inferior tribunal ought never to depend upon implication, and, when a judgment is given pursuant to an agreement, the consent ought to be so express in terms that no mistake could possibly arise respecting the concurrence of the parties. There is not such an explicit specification as to the third cause of action as to preclude a review of the judgment rendered thereon. In Portland Construction Co. v. O’Neil, 24 Or. 54, 56 (32 Pac. 764, 765), it was said: “It has been repeatedly held that where the pleadings admitted a certain amount due, and such sum had voluntarily been tendered, or paid after judgment, the amount tendered or paid on the judgment may be accepted by the prevailing party without waiving the right of appeal.” In Campbell v. Cincinnati Southern Ry., 80 Ky. 585, the plaintiff sought to recover the sum of $231,451.78. ' The answer denied the entire demand except $28,726, which was admitted to be due, and for which sum judgment was given. The action as to the remainder of the claim was dismissed, and the plaintiff appealed. Thereafter he accepted the sum of money admitted to be due, and it was held that the collection of the part of his demand which was uncontroverted did not prevent him from prosecuting an appeal from the judgment dismissing the action as to [427] the portion which was disputed. Under the rule thus announced, the plaintiff by accepting the sum of money conceded to be due and satisfying the judgment of record was not precluded from having the order of the court dismissing the third cause of action reviewed on appeal. (130 Pac. 985.) Statement by Mr. Chief Justice McBride. This is an action brought by the State of Oregon to recover certain sums of money claimed to be owing by respondent under the gross earnings tax law enacted under the initiative in June, 1906. The complaint contained three counts; the first thereof claiming the tax due on the earnings of respondent in the fractional year 1906, the second thereof on the earnings of respondent in the calendar year 1907, and the third thereof on the earnings in the calendar year 1908. Judgment was entered in the court below in favor of appellant and against respondent for the amounts claimed for the years 1906 and 1907, and that judgment was paid by respondent. The lower court on demurrer to the answers to the third count in the complaint held that the initiative law for 1906 had been repealed by the tax law of 1907, found in the Session Laws for that year at pages 485 to 497, and that the gross earnings tax law had also been repealed by the act of 1909 creating the board of tax commissioners, found in the Session Laws for that year at pages 345 to 364. Judgment was entered for respondent on the third count of the complaint for the tax claimed on its earnings in 1908. The question presented by this appeal is whether the act of 1906 is repealed by either o* both of the acts aforesaid. For an understanding of the questions raised on this appeal, it is necessary to recite the.three acts in question. The gross earnings statute enacted, by initiative in 1906, in so far as it is important for present purposes, is as follows (Session Laws 1907, pp. 7, 8) : [427] It follows that the motion should be denied, and it is so ordered. Denied.