State v. Richardson

¶1delivered the opinion of the court.

¶2It is contended by defendants’ counsel that, as no further proceedings were ordered in remanding the cause on the former appeal, the court erred in permitting, over objection, the alternative writ of mandamus to be amended. In the early practice, when some particular, act was sought to be enforced, a mere *312letter from the sovereign' power was issued, addressed to the person upon whom the duty devolved, commanding him to perform it. No return was originally allowed to the order, a disobedience of which subjected the offender to punishment. As mandatory proceedings became more general, the common-law courts, relaxing the ancient rule, permitted a return to the writ, which had taken the place of the king’s letter; but the facts therein stated could not be traversed. If the return, though false, disclosed an adequate legal reason for not performing the act commanded, the proceedings were dismissed, and the petitioner’s remedy was thereupon limited to the maintenance of an action to recover the damages which he had sustained by reason of the sham statement. A return was first permitted to be traversed by St. 9 Anne, c. 20, in cases involving a contest- for a municipal office, and later the facts so stated were allowed to be controverted in all cases by St. 1 Win. IY. c. 21, thereby avoiding the necessity of bringing an action for a false return. Pursuant to the rules governing the early practice in mandamus proceedings, any mistake therein of substance was fatal and could not be corrected; but after the passage of the statutes mentioned the rigor of the ancient mode of procedure was abated, so as to allow amendments to the alternative writ, when by doing so justice would be promoted, provided no new or different cause of action was thereby substituted, and this modern rule now generally prevails in- this country: Merrill, Mandamus, §§ 5, 293, 294. Though the courts will not ordinarily permit a peremptory writ of mandamus to be altered (High, Ex. Legal Eem. § 519), the practice of amending an alternative writ thereof, provided no new or different cause is thereby stated, is quite general: 13 Enc. Pl. & Pr. 753; State v. Gibbs, 13 Fla. 55 (7 Am. Rep. 233); State v. Bailey, 7 Iowa, 390; Union Pacific Ry. Co. v. Hall, 91 U. S. 343 (23 L. Ed. 428).

¶31. The statute of this State, recognizing the wisdom of the rule thus outlined, prescribes Avhat shall constitute the pleadings in mandamus proceedings, and, referring thereto, contains the following provision:

“They are to have the same effect and to be construed, and *313may be amended in the same manner, as pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion or demurrer allowed or disallowed, and the issue joined shall be tried and the further proceedings thereon had in like manner and with like effect as in an action”: B. & C. Comp. § 612.

¶4These liberal provisions authorize an amendment of an alternative writ of mandamus while the cause remains in the trial court, and its action in granting leave so to amend is a matter wholly within its discretion, which will not be disturbed, except in cases of an abuse thereof: Highway Commissioners v. People, 38 Ill. 347; Stevens v. Miller, 3 Kan. App. 192 (43 Pac. 439).

¶52. Our statute regulating the practice on appeal provides that, in affirming or reversing a judgment, this court may, if necessary and proper, order a new trial: B. & C. Comp. § 556. Observing the rule that a court will take judicial knowledge of the facts which it has acquired at a prior hearing of the cause (16 Cyc. 851; Mills’ Estate, 40 Or. 424, 67 Pac. 107), we have examined the record pertaining to the order affirming the judgment on the former appeal and find that it concludes as follows:

“It is further ordered that the cause be remanded to the said court below, and that a judgment be there entered and docketed in accordance herewith.”

¶63. Does the language here quoted show such a final disposition of the cause as to preclude the trial court from allowing the alternative writ to be amended? In Powell v. Dayton, S. & G. R. Co. 13 Or. 446 (11 Pac. 222), a demurrer to the complaint therein was overruled, and the defendants appealed. In disposing of the cause, Mr. Justice Thater says: “The case is too important to be determined upon demurrer, and the appellants would have been allowed to answer over it, if the decision of the lower court had been affirmed. We have therefore concluded to reverse the decree appealed from and remand the case with leave to the respondents to amend their complaint.” The remittitur having been sent down, the plaintiffs filed an amended complaint to which a demurrer was interposed and overruled, whereupon the defendants again appealed (s. c. 14 *314Or. 22, 12 Pac. 83), their counsel insisting that, in case the decision of the lower court was sustained, their clients should be given leave to answer over. In disposing of such contention, Mr. Justice Strahan, after referring to the former practice in this court in such cases, remarks: “We therefore announce it as a rule of practice in such cases that whenever this court does not make a final disposition of the cause, but remands the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not.” In Fowle v. House, 29 Or. 114 (44 Pac. 692), which was a suit to enforce a mortgage, a demurrer to the complaint was sustained, and the suit dismissed, whereupon the plaintiff appealed. At the trial in this court the complaint was found to be insiifficient, and the decree affirmed. The mandate having been sent down, the motion of plaintiff’s counsel to recall it was denied (s. c. 30 Or. 305, 47 Pac. 787), because the cause was remanded for further proceedings.

¶7It will be observed that the cases adverted to were suits which were dismissed .because the comjfiaints Avere respectively held to be insufficient on demurrer. An appeal in equity from a decree rendered on an issue of fact brings up the cause for trial aneAv in this court upon the transcript and evidence accompanying it (B. & C. Comp. § 555), and a final decree in such cases is usually rendered in this court. A mandate is thereupon sent to the court beloAA, to be entered, however, as our decree, and not as that of the court a quo. "When, on appeal from a decree in equity, the cause is sent back because the complaint is considered insufficient or the evidence inadequate to support a material averment, no final decree is rendered in this court, except to set aside the decree of the court below and to require further proceedings to be had therein. The rule, therefore, as promulgated in Powell v. Dayton, S. & G. R. Ry. Co. 13 Or. 446 (11 Pac. 222), applies only to suits in equity.

¶84. Appeals in law actions are tried in this court on bills of exceptions, disclosing alleged errors set out in the transcript (B. & C. Comp. § 555), and the conclusion here reached is, when remitted, entered in the court below as its judgment. *315When a judgment, rendered on an issue of fact in a law action, is reversed on appeal, a new trial is generally ordered, unless the court below should have sustained a motion for a judgment of nonsuit, because of an entire lack of evidence: Durbin v. Oregon Ry. & Nav. Co. 17 Or. 5 (17 Pac. 5, 11 Am. St. Rep. 778); McPherson v. Pacific Bridge Co. 20 Or. 486 (26 Pac. 560); Coughtry v. Willamette St. Ry. Co. 21 Or. 245 (27 Pac. 1031); Eastman v. Monastes, 32 Or. 291 (51 Pac. 1095, 67 Am. St. Rep. 531); Abbot v. Oregon Railroad Co. 46 Or. 549 (80 Pac. 1012, 1 L. R. A., N. S., 851, 39 Am. & Eng. R. Cas., N. S., 52). A reversal of the judgment in each of the eases last cited was a final disposition of the cause. Where, however, a judgment in a law action is reversed on appeal, and the cause is remanded for a new trial or for further proceedings, the court below possesses power to allow reasonable amendments to be made to the pleadings, and its action in this respect will not be disturbed, except for an abuse of discretion: Henderson v. Morris, 5 Or. 24; Baldock v. Atwood, 21 Or. 73 (26 Pac. 1058); Talbot v. Garretson, 31 Or. 256 (49 Pac. 978); Lieuallen v. Mosgrove, 37 Or. 446 (61 Pac. 1022); York v. Nash, 42 Or. 321 (71 Pac. 59).

¶95. A demurrer to a conlplaint interposes an issue of law, the determination of which constitutes a trial by a court: B. & C. Comp. § 114; Hume v. Woodruff, 26 Or. 373 (38 Pac. 191). When such a trial results in sustaining a demurrer, and the plaintiff declines to amend the complaint, in consequence of which a judgment is rendered against him, and he appeals, an affirmance of the judgment leaves nothing further to be considered, and hence, the ordering of a new trial, as jireseribed by statute (B. & C. Comp. § 556), would be useless. When a judgment or decree given under such circumstances is affirmed on appeal, and the cause is remanded, if the plaintiff seeks to correct his error by amending the complaint, his payment of or responsibility for the costs and disbursements incurred should be a sufficient punishment for his mistake, and his application so to amend ought to be allowed, if it is reasonable and meets the approval of the trial court. We believe that a fair inter*316pretation of the rules of practice prevailing in this State authorized the court to allow the alternative writ of mandamus to be amended, in permitting which no error was committed.

¶106. Considering the case on its merits, no exceptions were taken to the findings, nor was any request made for any other decision upon a question of fact, and as the findings made by the court show a compliance with the requirements of the several provisions of the local option act, thereby supporting the judgment rendered, the only questions to be considered are the action of the court in striking out parts of the answer, and in sustaining a demurrer to the other parts thereof. The averments which were struck out are lengthy, and an examination of them convinces us that no error was committed in their elimination, for evidence of the facts thus stated could have been admitted under the remaining allegations, and hence the new matter so set out will not be detailed.

¶117. It is insisted by defendants’ counsel that the local option law violates Section 20, Art. I of the constitution of this State, which is as follows:

“No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens”—

¶12and that, having sought to raise this and other constitutional questions by averments of new matter in the answer, an error was committed in sustaining the demurrer interposed thereto. An examination of the provisions of the act in question fails to show that any privileges or immunities are attempted to be granted thereby. The law, when put into operation, may deny to some persons rights theretofore enjoyed, of selling intoxicating liquors as a beverage; but the act does not grant any special privileges or immunities to any citizen or class of citizens.

¶138. If it did, however, it would not contravene common right, because the sale of such liquors for the purpose specified is not a privilege guaranteed to the citizens of the United States: *Sandys v. Williams, 46 Or. 327 (80 Pac. 642).

¶14*3179. It is maintained that the act under consideration is violative of Section 1, Art. II, of the organic law of the State, which is as follows:

“All elections shall be free and equal.”

¶15No qualified elector was prevented by any means whatever, so far as disclosed by the transcript, from freely voting to adopt or reject the local option law, or deprived of having his vote counted as cast, and if he exercised the right of suffrage on this particular occasion, his opportunity was equal to that of all other persons voting, and hence the act does not contravene the clause of the constitution invoked to defeat it: 10 Am. & Eng. Enc. Law (2 ed.), 583.

¶1610. It is insisted that Section 10 of the act (Laws 1905, p. 47, c. 2) violates Subdivision 3 of Section 23 of Art. IV of the Constitution of Oregon, which is as follows:

“The legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say: … (3) Regulating the practice in courts of justice”—

¶17and that it contravenes Sections 1 and 12, Art. VII of the fundamental law of the State, which, so far as involved herein, are as follows, respectively:

“1. The judicial power of the State shall be vested in a … county court … having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this constitution.

12. The county court shall have the jurisdiction pertaining to probate courts, and boards of county commissioners, and such other powers and duties, and such civil jurisdiction not exceeding the amount of value of five hundred dollars, and such criminal jurisdiction not extending to death or imprisonment in the penitentiary, as may be prescribed by law. But the legislative assembly may provide for the election of two commissioners to sit with the county judge, whilst transacting county business in any or all the counties, or may provide a separate board for transacting such business.”

¶18The section of the act thus challenged requires the county court, if a majority of the votes cast in an entire comfiy, or in any subdivision thereof as a whole, or in any precinct, at an election called for that purpose, be in favor of prohibition, to *318make an order declaring the result of such vote and absolutely prohibiting the sale of intoxicating liquors as a beverage within the prescribed limits. It will be observed that this section makes the declaration of the result of a majority vote for prohibition and the interdiction of the sale of intoxicating liquors as a beverage in pursuance thereof, by the county court, a ministerial act: State ex rel. v. Malheur County Court, 46 Or. 519 (81 Pac. 368).

¶1911. We think the part of Section 12, Art. YII of the constitution which vests the county court with “such other powers and duties … as may be prescribed by law,”, requires such court to perform the obligation thus imposed upon it by Section 10 of the act, in the discharge of which it exercises neither discretion nor judgment.

¶2012. We conclude, therefore, that mandamus lies to corhpel a compliance with the requirements of this clause of the act.

¶2113. It is contended that the title of the local option act contravenes Section 20 of Art. IY of the Constitution of Oregon, which, so far as deemed important, is as follows:

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”

¶22It is argued that the title of the act in question implies an intention on the part of the framers of the statute that it should lie local in its operation, so that qualified electors in each community could, for themselves, determine whether or not the sale of intoxicating liquors as a beverage should be prohibited therein, and that no intimation is given in the inscription of the act that an aggregation of precincts in which, as a whole, a majority of the voters who were' in favor thereof could impose prohibition upon a precinct in which a majority of the qualified electors was ojrposed thereto. The object of the constitutional inhibition in question is to prevent matters wholly foreign to the subject-matter specified in the title from being inserted in the body of the act: Simpson v. Bailey, 3 Or. 515; McWhirter v. Brainard, 5 Or. 426. In laws proposed by initiative petitions pursuant to an amendment of our consti*319tution, it would seem that the method frequently adopted by members of the legislature of securing votes for the passage .of a bill by promises of reciprocal support of other measures could not be pursued, and hence one of the reasons assigned for requiring every bill introduced in the legislative assembly to comply with the requirement of Section 20, Art. IV, of the organic act of the State, so that it may stand on its own merits, the purpose of which, to be valid, must be fairly disclosed in the title, would have no application to the consideration of an act which, like the local option law, resulted from a vote of the people. The validity of laws adopted at the polls must be determined like enactments by the legislative assembly, by the test of the constitution as modified by the amendment thereto. Though the argument that a ¡proposed measure must depend upon its own merits may not apply to acts initiated by petitions, a valid reason for requiring that the subject-matter of laws to be adopted or rejected at the polls should be stated in the title nevertheless exists. The majority of qualified electors are so much interested in managing their own affairs that they have no time carefully to consider measures affecting the general public. A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversation with their associates. We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition Avho have attentively studied its contents and know how it will probably affect their private interests. The greater .number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the veiy meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage. It is important, therefore, that the title to laws proposed in the manner indicated should strictly comply with the constitutional requirement.

¶2314. An examination of the provisions of the act under con*320sideration shows an evident intent to make a county the utmost limit and a precinct the smallest territory in which the local option law may be put into operation, and, as the greater necessarily includes the less, a majority vote in the entire county in favor of prohibition, when carried into effect, prevents the sale of intoxicating liquors as a beverage in any precinct therein, though a majority of the qualified electors in such precinct may have voted against the law. Between these extremes of territory another district may be created which is known as a subdivision of a county, composed of two or more 'entire and contiguous precincts, and the adoption of local option in a subdivision as a whole, when declared as such by the county court, necessarily puts the law into operation in each precinct forming an integral part of the subdivision, though a majority of the votes cast in one of the precincts embraced therein may have been opposed to prohibition. In an election held in a county as a whole, or in a subdivision thereof, if any precinct embraced therein cast a majority vote in favor of prohibition, though a majority of the votes cast in the other parts of the territory may be against interdiction, the provisions of thé act are required to be enforced in the precinct in which a majority vote was cast in favor thereof: Laws 1905, pp. 41, 47, c. 2, §§ 1 and 10. The title in question, so far as it relates to the objection urged, is as follows:

"An act to propose by initiative petition a law providing for election in any county, or any precinct therein, or any subdivision of a county, consisting of any number of entire and contiguous precincts of such county, to determine whether the sale of intoxicating liquors shall be prohibited in such county or subdivision thereof or in such precinct, … declaring what shall constitute a subdivision of the county within the meaning of this law, … providing for the issuance by the county court of orders prohibiting the sale of intoxicating liquors within certain limits and declaring the duties of such courts in reference thereto.”

¶24We think the title is a fair index of the subject-matter of the act, and that the last clause of the inscription quoted is sufficient to call attention to and give adequate notice of the *321provisions of the law making it applicable to the territory specified under the particular circumstances hereinbefore mentioned.

¶25Believing that no error was committed as alleged, the judgment should be affirmed, and it is so ordered.

¶26Aeeirmed.