Volume 109 — Oregon Reports

<p>Pleading — Portions of Answer in Part Material and in Part Immaterial Secure from Motion to Strike.</p> <p>1. Portions of an answer to a petition for mandamus wkieh are either entirely material or in part material and in part immaterial are seeure from attack made by motion to strike.</p> <p>Counties — County Which had Exceeded Debt limit Could not Contract for Courthouse to be Paid for Out of General Fund.</p> <p>2. A county in debt in an amount e-xceediug the constitutional limit could not contract for construction of a courthouse to be •paid for out of its general fund, -and could legally contract only for -the building of a courthouse to be paid for out of special funds.</p> <p>Counties — Special Levies Made for Courthouse on One Block not Available to Contractor for Courthouse on Other Block.</p> <p>3. S-peeiol levies by a -county for certain years-, made expressly for a courthouse on one bloek, cannot be -availed of by a contractor to construct another courthouse on another bloek -as a special fund available f-or payment of 'his warrants, though -all taxes collected f-or courthouse construction, including -both, were commingled in one fund.</p> <p>Counties — Courthouse Contractor Entitled to Look to Special Fund as It Legally is.</p> <p>4. A contractor with a county to construct a courthouse is entitled to look to the special courthouse fund as it was and legally is, and is not bound by what might have but was not done in respect of such fund.</p> <p>Mandamus — Allegations of Answer to Courthouse Contractor’s Petition for Mandamus Relative to Levy for Other Courthouse Immaterial to Issues.</p> <p>5. In mandamus proceedings by contractors with a eounty to construct a courthouse to compel the treasurer to pay a money decree previously obtained against the county on account of an unpaid warrant given the contractors, allegations in the answer as to the proposed levy for another new courthouse, begun, but not finished, were foreign to the issues.</p> <p>Statutes — Phrase must be Read in Light of Origin and History of Statute.</p> <p>9. A phrase used in a statute must be read in the light of the origin and history of the statute.</p> <p>Taxation — Statute Authorizing Reception of County Orders in Payment of “County Taxes” Excluded State Taxes.</p> <p>7. When Section 3406, Or. L., providing county orders payable out of county revenue shall be received in payment of county taxes, etc., was originally enacted, the words “county taxes” were used to exclude at least state taxes and possibly other taxes.</p> <p>Taxation — Statute Authorizing Reception of County Orders in Payment of Taxes Receives Strict Construction.</p> <p>8. A rule of strict construction is applied to statutes like Section 3409, Or. L., providing that eounty orders payable out of county revenue shall be received in payment of eounty taxes without -regard -to priority of presentment, number, etc.</p> <p>Counties — Reception of County Warrants on Other Funds in Payment of Special Courthouse Taxes Equivalent to Borrowing from Courthouse Fund.</p> <p>9. However Section 3406, Or. L., providing county orders payable out of oournty revenue -shall be received in payment of eounty taxes, -etc., may be construed, whenever a county warrant drawn on some other fund was presented and received in payment of special courthouse taxes, it was in the final analysis equivalent to borrowing from the -courthouse fund moneys with which to pay the debt of the other fund, -and the courthouse contractor, as creditor of the special courthouse fund, is entitled to h-ave -restored to such fund cash in an amount equal to the amount of warrant® on other funds received in payment o-f special courthouse taxes since the date to which the contract for the courthouse referred.</p> <p>Judgment — Taxpayers and Sheriff Need not Pay in Cash Courthouse Taxes Paid by Surrender and Cancellation of County Warrants Pursuant to Judgment.</p> <p>19. Where, pursuant to judgment against him in a taxpayer’s action, the sheriff of a county received in payment of special courthouse taxes certain county warrants and turned them over to the county treasurer and was given credit therefor, while the warrants were canceled and retired, the taxpayer, at instance of the contractor for a new courthouse, need not again pay such taxes, and the (sheriff need not pay, whether or not reception of the warrants in payment of taxes was proper.</p> <p>Counties — Restoration of Depleted Special Courthouse Fund cannot be Made by Taking Moneys from Nondebtor Special Fund.</p> <p>11. Restoration to a special courthouse fund depleted by the reception of connty orders in payment of special courthouse taxes cannot be made by taking moneys from a nond'ebtor special fund, warrants of which have not been received in payment of the courthouse taxes.</p> <p>Taxation — Courthouse Contractor’s Claim Against County Subordinate to That of State for Taxes.</p> <p>13. If there are not enough moneys in the hands of a connty treasurer to pay both state taxes and a contractor with the connty to build a courthouse, the contractor’s claim must be subordinated to that of the state.</p>

From Multnomah: J. P. Kavanaugh, Judge. Department 1. Plaintiff instituted an action to recover the sum of $5,897.76 with interest as a repayment of money upon a contract of sale of certain real estate. The defendants answered and set up an equitable defense under Section 390, Or. L. The cause was tried as an equity suit and a decree rendered in favor of defendants foreclosing the contract of purchase and sale. From this decree plaintiff appeals.

<p>Municipal Corporations — Streets Belong to Public — “Public Highways.”</p> <p>1. The streets within an incorporated city are a part of the public highways, and belong to the whole people of the state, and persons residing in the city have an equal but not a superior right to the use of the streets over those who reside elsewhere.</p> <p>Municipal Corporations — Legislative Power of Over Streets Dependent on Delegation by Legislature.</p> <p>2. Municipalities possess no legislative power over public streets Within corporate limits unless conferred, by legislative authority, the legislature being empowered to delegate to municipalities the power to regulate streets and to withdraw it at will.</p> <p>Municipal Corporations — Municipal License Fee Imposed on a Carrier of Passengers by Motor Vehicles Between Two Cities, not Being for Regulatory Purposes, Held Void.</p> <p>3. "Where a carrier of passengers by motor vehicles for hire between two cities under a permit issued by the Public Service Commission had paid the license fee required by Laws of 1921, Chapter 371, page 728, Section 25, as amended by Laws of Special Session of 1921, Chapter 8, page 23, which by Laws of 1921, Chapter 371, page 729, Section 26, is in lieu of any license fee imposed by a municipality except for regulation only, a license fee of $300 imposed .by ordinance for receiving and discharging passengers on the streets was not regulatory, but a tax, and in conflict with Laws of Special Session of 1921, Chapter 10, page 36, Section 3, conferring on the Public Service Commission the right to regulate motor vehicles for hire not operating exclusively within the corporate limits of any cities, and is therefore void.</p> <p>Carriers — Licensed Carrier Entitled to Receive and Discharge Passengers on the Streets.</p> <p>4. Where a carrier was authorized by the Public Service Commission to transport passengers for hire between two incorporated cities, it had a right to receive and discharge passengers upon the public streets, of one of the cities, and the municipality could net prevent or prohibit it.</p>

<p>Master and Servant — Owner of Premises Owes Contractor’s Employees Duty of Reasonable Care.</p> <p>1. A company contracting for the doipg of work on its premises by another owes the same duty to -the latter’s employee® to keep the premises and place of w>ork in a reasonably safe condition, as if they were its own employees.</p> <p>Steam — High Degree of Care Required.</p> <p>2. Steam is such a dangerous agency as to require a high degree of care of those engaged in its production and use.</p> <p>Negligence — Owner of Steam Boilers Required to Exercise Ordinary-Care to Safeguard Contractor’s Employee.</p> <p>3. A corporation letting a contract for the installation of a mud-drum under a steam boiler on its premises- held required to take -such reasonable precautions in proportion .to the danger of steam being ejected into the drum through a blow-off pipe from another boiler, as an ordinarily prudent man, knowing that the contractor’s employee was ignorant of the danger, would have employed, under the circumstances, to safeguard him.</p> <p>Negligence — Question for Jury.</p> <p>4. While the mere happening of an injury is insufficient to raise an inference of neglige-nee, the case is for the jury, where proof of the accident is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn.</p> <p>Negligence — Finding of Negligence as to Contractor’s Workman Scalded by Steam Warranted.</p> <p>5. In an action for injuries to a contractor’» employee while installing a mud-drum under a steam boiler on defendant’s premises, evidence held sufficient to authorize the inference by the jury that valves in pipes connecting the blow-off tank with the mud-drum in which plaintiff wins working were negligently left .open when another boiler was blown off, thereby causing the steam to “kick back” and scald plaintiff, and that defendant failed to- exercise due care to ascertain whether the valvels1 were open before blowing off the boiler.</p> <p>Negligence — Negligence as to Contractor’s Workman “Scalded by Steam Held for Jury.</p> <p>-6. In an action for injuries to a contractor’s employee from steam ejected into a mud-drum being installed by him under a boiler on defendant’s premises, defendant’s evidence that its employee closed the valves in pipes connecting the blow-off tank with the mud-drum and did not open them before plaintiff’s injury held insufficient to authorize a directed verdict for defendant, in view of evidence that the valves wore open when the steam was turned' into the pipes and that defendant failed to exercise due care to ascertain whether they were open before blowing off the boiler.</p> <p>Master and Servant — Filing Claim for Compensation not Necessarily Election Precluding Suit Against Third Party.</p> <p>7. The mere filing of a claim for compensation by a contractor’s employee, injured while doing work on another’s premises under a contract let to hi® employer, followed by an awiai’d of the full statutory compensation, does not necessarily constitute an election to take under the act or effect an assignment of his right of action against the third party to the -state under Section 6616, Or. L., whieh merely requires that such election be in advance of any suit.</p> <p>Master and Servant — Election to Take Compensation Instead of Suing Third Person not Presumed, Where Servant Acts in Ignorance of Obligation to Elect.</p> <p>8. An election, under Workmen’s Compensation Act (Section 6616, Or. L.), by a workman injured while away from his employer’s plant, to take under the act, instead of. suing a negligent third person, will not be presumed, where he acts in misapprehension of his rights and in ignorance of his obligation to elect especially when no other person's rights are prejudicially affected.</p> <p>Master and Servant — Payment of Nurse Hire by Accident Commission Does not Vest State With Interest in Workman’s Bight of Action Against Negligent Third Party.</p> <p>®. Payment of nurse hire by the Industrial Accident 'Commission as first aid to a workman injured while away from his employer’s plant is no part of his compensation under 'Section 6628, Or. L., and cannot be invoked to vest in the state, under Section 6616, an interest in his right of action -against a negligent third party.</p> <p>Master and Servant — Acceptance of Compensation Held not Election so as to Work Assignment to State of Bight of Action Against Negligent Third Party.</p> <p>10. Beoeipt and acceptance of two weeks’ compensation awarded an injured workman held mot an election to take under the Compensation Act so' as to work an assignment to the state, under Section 6616, Or. L., of hi® right of action against a negligent third party, where the sum paid was promptly returned to and accepted by the Commission with the understanding that the state’s claim was discharged.</p> <p>Appeal and Error — Submission of Question Whether Injured Workman Elected to Take Under Compensation Act Held not Beversible Error.</p> <p>11. Submission to the juay of the question whether one suing for injuries sustained while doing work on defendant’s premises under the latter’s contract with his employer elected to take under the Workmen’s 'Compensation Act by filing a claim and accepting two weeks’ compensation, which he subsequently refunded, held not error of which defendant could complain.</p>

<p>From Multnomah.: Robert Tucker, Judge.</p> <p>Department 2.</p>

From Clatsop: J. A.. Eakin, Judge. Department 1. This is an appeal by a garnishee from a judgment rendered under the authority of Section 320, Or.