consideration, in order to better qualify himself to understand and apply the facts alleged in the affidavits pro and con, he visited the place where the land in dispute lies, and made a careful investigation of the facts as to its location, and, after mature consideration, refused to allow the relief asked. In view of these facts, the nisi prius judge was well qualified to pass an intelligent judgment upon the matter submitted, and it is not enough that we might reach a different conclusion to justify an interference with the exercise of his discretion. There must be not merely error of judgment, but such an exercise of it as amounts to a plain abuse of discretion. Our examination of the record has not satisfied us that the order should be disturbed, and it is therefore affirmed.

(24 Or. 558)

WARREN v. CROSBY, Mayor, et al. (Supreme Court of Oregon. Nov. 8, 1893.) CONSTITUTIONAL LAW-STATUTES-AMENDMENT BY REFERENCE TO TITLE-REPEAL BY IMPLICATION.

1. Const. art. 4, § 22, which provides that "no act shall ever be revised or section amended by mere reference to its title, but the act revised or section amended, shall be set forth and published at full length," does not inhibit the enactment of a general law which is complete and perfect in itself, and not amendatory or revisory in its character, though such law by implication amends other statutes on the same subject. State v. Wright, 12 Pac. Rep. 708, 14 Or. 370, overruled.

2. Laws 1893, p. 116, "An act to secure a more convenient mode of making assessments and of collecting and paying taxes," etc., which by section 9 eliminates from the special act incorporating the city of Astoria the provisions conferring on such city power to assess, levy, and collect all taxes, is not invalid because it amends such special act without setting forth in full the section as amended.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by M. S. Warren against M. C. Crosby, mayor of the city of Astoria, Or., and others, to enjoin such city from incurring further expense in assessing and collecting the city taxes for the year 1893. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

J. F. Hamilton, for appellants. George Noland, for respondent.

more

amended by mere reference to its title, but the act revised or section amended, shall be set forth and published at full length." The general act-passed at the last session of the legislature-is entitled "An act to secure a convenient mode of making assessments and of collecting and paying taxes," etc., and consists of nine distinct sections, which, in substance, provide as follows: Section 1 provides for four additional columns to the assessment and tax rolls, to be headed Districts,' "Amt. City "Cities," "School Tax," and "Amt. School District Tax," and for inserting the name of the city or school district in which each item of property is assessable. Section 2 provides for listing the cities and school districts in the several counties in alphabetical and numerical order upon a page or pages of the tax roll, with the aggregate value of all the assessable property in each city and district set opposite the name or number thereof. Section 3 provides for taxing property in cities and school districts according to its valuation by the county assessors, and for furnishing the proper officers of such cities and districts with statements of the aggregate valuation of the assessable property in their respective cities and districts. Section 4 provides for annual notice to the clerks of the several county courts of the rate per cent. of the tax levy in each city and school district in the respective counties. Section 5 provides for computing the tax upon the property of each individual by the several clerks of the county courts, and extending the same so as to show the aggregate tax of each individual upon his property in the respective cities and districts. Sections 6 and 7 provide for the collection of such taxes, and the payment thereof to the respective cities and school districts for which they were collected. Section 9 provides "that all laws providing for assessors in, or assessments of property by any school district, incorporated town or city and all laws in conflict herewith, be and the same are hereby repealed." By this act the power to assess and collect taxes, conferred on the different cities of the state by their charters, and also upon the different school districts, as well as the duties connected therewith, is transferred to the county offcers designated therein. Section 38 of the special act incorporating the city of Astoria provides that its common council shall have power "to assess, levy and collect taxes for general municipal purposes, upon all property, real and personal, which is taxable by law for state and county purposes." It will be observed that the effect of the general act is to eliminate from section 38 of the special act the power conferred on the common council to assess and collect taxes for municipal purposes, and to transfer it and the duties connected therewith to the officers

1 Laws 1893, p. 116.

of the county so designated. This, it is claimed, is such a change or alteration of section 38 as, in effect, amends it without conforming to the requirements of section 22, art. 4, of the constitution; and hence that such a change or alteration could not be legally made without setting forth and publishing at full length such section as changed or modified. The question, therefore, to be determined is whether the general act comes within the scope of the constitutional provision invoked. The language of that provision is both prohibitory and mandatory. By its terms it inhibits the revision or amendment of an act by mere reference to its title, and requires that the act revised or section amended shall be inserted at length. It does not purport to limit or restrict the power of the legislature in the enactment of laws. It relates only to the mode or form in which the legislative power shall be exercised. Its prohibition is against legislation effected by modes not in conformity with its requirements. The evil it sought to remedy was the mode in which the legislative power was sometimes exercised in the enactment of revisory or amendatory laws. This evil, as is well known, was the practice of amending or revising laws by additions or other alterations, which, without the presence of the original law, were usually unintelligible. Acts were passed, amending an existing statute by substituting one phrase for another, or by inserting a sentence, or by repealing a sentence, or a part of a sentence, in some portion or section thereof, which, as they stood, often conveyed no meaning, and, without examination and comparison with the original statute, failed to give notice of the changes effected. By such means an opportunity was afforded for incautious and fraudulent legislation, and endless confusion was introduced into the law. Legislators were often deceived, and the public imposed upon by such modes of legislation. To prevent these consequences, and to secure a fair and intelligent exercise of the lawmaking power, was the object of the constitutional provision in question. This object it accomplished by imposing a limitation, not on the power of the legislature to make laws, but upon the mode in which that power should be exercised in the enactment of amendatory or revisory laws. If the act is in itself complete and perfect, and is not amendatory or revisory in its character, it is not interdicted by this provision, although it amends by implication other legislation upon the same subject. Such an act, although it may operate to change or modify prior acts, is not within the mischief designed to be remedied by said section 22. "Statutes," says Judge Cooley, "that amend others by implication are not within this provision, and it is not essential that they even refer to the acts or sections which by implication they amend." Cooley, Const. Lim. p. 152. Hence an act of the leg

islature, not amendatory in character, but original in form, and complete in itself, exhibiting on its face what the law is to be, its purpose and scope, is valid, notwithstanding it may, in effect, change or modify some other law upon the same subject.

As the general act under consideration deprives the cities and school districts of the state of the power to assess and collect taxes, which had been theretofore conferred upon them by special and general laws, it is claimed that this is such a change or alteration of those laws in that particular as is amendatory, and that, unless the general law sets forth and republishes at length the part or section thereof as amended, it directly falls within the constitutional inhibition, and is void. Hence, as the effect of the act is to take from the city of Astoria the power to assess and collect taxes, conferred upon it by section 38, supra, it is amendatory of that section, and, for like reason, unconstitutional. This construction of the constitutional provision in question is based on the assumption that any act of the legislature which in effect alters or changes an existing law, or part thereof, is an amendment of it, and void, unless it inserts the law at length, or such part as changed or amended. In support of this construction we are cited to the case of State v. Wright, 14 Or. 370, 12 Pac. Rep. 708, in which Strahan, J., said: "In legislation an amendment means an alteration in the draft of a bill proposed, or in a law already passed. Rap. & L. Law Dict. tit. 'Amendment.' So that, if this act alters the legal effect of the charter of the city of Astoria in a particular already covered and provided for by the charter, then it is to be taken as an amendment of the charter. This is not a case where new and additional powers are added by way of supplement, but the change or alteration of an existing power; and I think it is too plain for argument that it is an amendatory statute." In that case the act under consideration provided, in substance, that "every person obtaining a license to sell spirituous or vinous liquors shall pay into the treasury of the county, city or town granting such license the sum of three hundred dollars per annum, and in the same proportion for a less period, or two hundred dollars per annum, and in the same proportion for a less period, for a license to sell malt liquors only: provided, that no license shall be granted for a less period than six months: and be it further provided, that no license to sell spirituous, malt or vinous liquors shall be granted by any incorporated city or town for a less sum than that herein before specified," etc. The effect of this act, if valid, was to amend the charter of every city and incorporated town in the state. As the city of Astoria by its charter had the power conferred upon it through its common council to license and tax barrooms and drinking shops, and, in

sess and collect taxes; or, in other words, it operated to amend such section by repealing, pro tanto, that portion of it by implication. But the act does not purport to be an amendment of any previous statute, special or general. It is an independent act of legislation, complete and perfect in itself. The power conferred, and the duties imposed, and all matters connected therewith, are specified in the body of the act. It shows on its face what the law is to be. Neither the legislators nor the public could fail to discover its purpose and meaning, without reference to any prior legislation upon the same subject. It is entitled "An act to secure a more convenient mode of making assessments and collecting and paying taxes," etc., and establishes a new policy of the state in reference to the assessment and collection of taxes. Such an act does not fall within the constitutional provision or mischief intended to be remedied.

pursuance thereof, had passed an ordinance fixing the sum at $200 per annum, for which licenses were granted and issued, the effect of the act was to repeal such ordinance in so far as it fixed a different amount for the license than the sum prescribed by the act, and to limit the power of the common council, under the charter, to grant licenses for sums less than those named in the act. While, therefore, the effect of the act was to alter or change to this extent an existing power, it was produced by such act repealing pro tanto, by implication, the section of the charter which conferred it. The act itself is complete; its meaning and scope plain and apparent; nor is there anything on its face to evince an amendatory character. It is an independent act of legislation, designed to regulate the sale of liquor in the state. When an act of this character so operates as to modify or change prior acts of legislation, it does not fall within the mischief designed to be remedied by the constitution, although the effect is to alter or amend by implication some prior legislation upon the same subject. To hold otherwise, and give this constitutional provision the construction claimed, would be, in effect, to declare that the legislature is powerless to pass any act changing or altering in any respect the statute law of this state without re-enacting and republishing at length every section of all prior statutes, general and special, that might be affected by the new statute. We do not think that such construction is tenable, or sustained by the adjudications. Statutes which amend or repeal others by implication are not obnoxious to the constitution. If, therefore, the general act now in question is complete in itself as an inde pendent act of legislation, although it may operate to change or modify some prior law, it does not fall within the constitutional inhibition, and is valid. In form the act is original, and not amendatory. It does not assume to amend or revise any prior general or special act, or section thereof, but, by conferring on the county officers the power to assess and collect taxes for the cities and school districts of the state, it had an amendatory effect by implication upon such prior legislation as conferred that power on such cities and school districts, and by its last section expressly repeals all laws providing for assessors in or assessments of property in school districts, incorporated towns, or cities. The city of Astoria having the power conferred on it by section 38, supra, to assess, levy, and collect taxes for municipal purposes, the effect of the general act in conferring upon the county officers the power to assess and collect taxes, but not to levy them, for cities and school districts of the state, was to deprive the city of the right to exercise such power, and, as a consequence, the act operated to change or alter section 38 by striking out the power to as

The adjudications are numerous to the effect that an act which does not assume to amend prior legislation, and is a complete and perfect act itself,-its purpose and scope apparent on its face,-is not interdicted by the constitution, although it amends by implication other statutes on the same subject. In People v. Mahaney, 13 Mich. 496, where a similar provision of the constitution of Michigan was under consideration, it was held that an act establishing a policy of government for an incorporated city, which did not assume in terms to revise, alter, or amend any section of the city charter, was valid, although by the transfer of the duties from one officer to another it had an amendatory effect by implication on sections of the city charter which were not re-enacted and republished. Cooley, J., said: "It is next objected that the law is invalid because in conflict with section 25 of article 4 of the constitution, which provides that 'no law shall be revised, altered, or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length.' The act before us does not assume, in terms, to revise, alter, or amend any prior act, or section of an act, but by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the provision referred to. whenever a new statute is passed, it is necessary that all prior statutes modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the state would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was. If, because an act establishing a police government modifies the powers and

If,

duties of sheriffs, constables, water and sewer commissioners, marshals, mayors, and justices, and imposes new duties upon the executive and the citizen, it has thereby become necessary to re-enact and republish the various laws relating to them all as now modified, we shall find, before the act is completed, that it not only embraces a large portion of the general laws of the state, but also that it has become obnoxious to the other provisions referred to, because embracing a large number of objects, only one of which can be covered by its title. This constitutional provision must receive a reasonable construction, with a view to give it effect.

The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the diffculty in making the necessary examination and comparison, failed to become apprised of the changes inade in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent." This construction of the Michigan constitutional provision was reaffirmed in People v. Wands, 23 Mich. 385, and in Swartwout v. Railroad Co., 24 Mich. 389. In Evernham v. Hulit, 45 N. J. Law, 53, where a similar provision of the New Jersey constitution was under consideration, Depue, J., said: "A construction of this constitutional provision which would sustain the contention of the plaintiff would lead to the most embarrassing results. It would be equivalent to holding that the legislature can pass no act changing any part of the statute law in force in this state withou: re-enacting at length every section in the whole body of existing statutes that might be affected by the new legislation. Since the constitutional amend,nents went into effect, a considerable number of acts have been passed designed to simplify and make more efficacious the mode of making and collecting assessments for local improvements in the municipalities of this state. These were subjects specially provided for in sections contained in their several acts of incorporation. General acts have also been passed providing for the assessment, collection, and lien of taxes,-subjects specially provided for in sections incorporating cities, towns, and townships, as well as in several parts of the general tax law of this state. In many in

stances provisions of this kind are contained in long sections, in which it is usual to express and define the general powers of corporations. Sometimes they are distributed in appropriate places in different sections of the acts. If this constitutional provision has made it necessary to the validity of a new statute on the subject that every prior statute on the same subject which may be altered or modified should be inserted in it at length, it would be quite impossible to legislate at all on the subjects mentioned, or on kindred subjects; for a statute which would comply with such a requirement would probably be obnoxious to that other provision of the constitution that every law should embrace but one object, and that object should be expressed in its title." The same rule of construction has been applied in other states. Branham v. Lange, 16 Ind. 497; Lehman v. McBride, 15 Ohio St. 603; Ex parte Pollard, 40 Ala. 77; Bridge Co. v. Olmstead, 41 Ala. 9; Shields v. Bennett, 8 W. Va. 75; Baum v. Raphael, 57 Cal. 361; Fleischner v. Chadwick, 5 Or. 155; Cooley, Const. Lim. 183.

In coming to the conclusion reached in this case we have not overlooked the princlple that a general law will not be considered as modifying or repealing a special or local law, except by express words or necessary implication. "Laws special and local in their application," says Allen, J., "are not deemed repealed by general legislation, except upon the clearest manifestation of the legislature to effect such repeal, and ordinarily an express repeal by some intelligl ble reference to the special act is necessary to accomplish that end." People v. Quigg, 59 N. Y. 88. "But," as was said by Dixon, J., "there is no rule of law which prohibits the repeal of a special act by a general one; nor is there any principle forbidding such repeal without the use of express words de clarative of the legislative intent to rep al the entire statute." New Brunswick v. Williamson, 44 N. J. Law, 167. The question is one of intention, and the purpose of the general act to modify or repeal the special act must be clearly manifested-the conflict must be irreconcilable-in the absence of express words declarative of the legislative intent. Brown v. City of Lowell, 8 Metc. (Mass.) 172; Brown v. County Com'rs, 21 Pa. St. 42; State v. Fitzporter, 17 Mo. App. 273; Fosdick v. Village of Perrysburg, 14 Ohio St. 485, 486; Sedg. St. Law, p. 123. In the case at bar the intent of the general act to interfere with the power conferred by section 38 of the charter is clearly manifest, and the last section is expressly declarative of that purpose. In State v. Wright, supra, the general and special act, in the particular noted, are not only clearly inconsistent with each other, but the act also expressly declares that "no license to sell spirituous, malt or vinous liquors shall be

granted by any incorporated city or town for a less sum than hereinbefore specified." In view of these considerations, in so far as State v. Wright, supra, is in conflict with the construction we have given to the constitutional provision in question, it must be considered as overruled, and the judgment in the case at bar must be affirmed.

(6 Wash. 202)

PEDERSON v. SEATTLE CONSOLI-
DATED ST. RY. CO.

(Supreme Court of Washington. Nov. 6, 1893.)

PERSONAL INJURIES-RELEASE-VALIDITY.

Where a corporation obtains a release from liability for personal injuries from the person injured while he is lying in a hospital, without means or friends, mangled and shocked, and before his wounds are dressed, or his mind is composed, such release is void. Per Dunbar, C. J., dissenting.

Dissenting opinion.

For report of majority opinion, see 33 Pac. Rep. 351.

I

DUNBAR, C. J. I dissent. The testimony, to my mind, shows clearly (1) that the agent of the company in charge of the matter was guilty of gross negligence; (2) that the respondent was not guilty of contributory negligence; (3) that undue advantage was taken of the respondent to obtain the release which the appellant pleads in defense. do not question the law pronounced at great length in the majority opinion, but I assert that it does not govern this case. The opinion does not state the circumstances under which it is alleged the release was obtained. While this man was lying mangled and shocked by the injury, before his wounds were dressed or his mind composed, the agents of the company obtained this socalled "release." The undisputed testimony shows such a condition of mind and body as would render absolutely farcical any attempt of the respondent to enter into a contract concerning important rights. Courts would not hesitate to set aside a contract urged and procured by a private individual under such circumstances as are proven in this case, and no different rule should be prescribed for a corporation. Contracts, when they are honestly and fairly entered into, must be rigidly maintained and enforced by the courts, because contracts, express or implied, are at the bottom of all business relations. But a contract is only entitled to respect from the presumption that the contracting parties were standing on an equal footing at the time the contract was entered into. Will any man assert that the parties to this action were on an equal footing at the time this contract was entered into? Here was a man without means and without friends, torn and bruised by an accident, and jolted and shocked until he was prostrated, his wounds not yet examined to ascertain if they

were fatal, racked with physical pain, and scared out of his wits by the misfortune that had overwhelmed him; and while in this condition-a condition of mind and body absolutely preventive of intelligent calculation

the company with unseemly haste thrust this cold calculating stipulation into his face, and obtained his signature to it. The essence of a contract is an agreement of the minds of the parties, or the consent and harmony of their intentions. The circumstances under which the respondent's sig. nature was obtained to the so-called "release" shows, indeed, no want of harmony; but it was unilateral harmony; there was but one mind operating; the mind of the respondent was plainly in no condition to agree to anything; and appellant should not be allowed to shelter itself behind an instrument obtained in such a way. The judgment should be affirmed.

LEDDY v. ENOS.

(Supreme Court of Washington.

1893.)

(6 Wash. 247)

Nov. 3,

WHAT CON

COVENANTS AGAINST INCUMBRANCES
STITUTE-BREACH-LIABILITY.

1. 1 Hill's Code, § 1424, provides that a warranty deed containing the words "convey and warrant" shall be construed to contain express covenants by the grantor to the grantee, his heirs and assigns, that the premises are free from all incumbrances, "and such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed." Held, that the statute applies to a deed drawn in the form prescribed by statute, and which set out the exact things warranted by the grantor. Per Dunbar, C. J., dissenting.

2. A covenant which recites that the grantor covenants, grants, and agrees that he, "against all and every person and persons whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will warrant and forever defend," is a covenant against incumbrances. Per Dunbar, C. J., dissenting.

3. Outstanding city and county taxes at the time the deed is executed constitute a breach of such covenant, and the payment of such taxes by the grantee, before any move is made to collect the same, imposes a liability on the grantor, under the covenant. Per Dunbar, C. J., dissenting.

DUNBAR, C. J., (dissenting.) I am unable to agree with the reasoning or conclusions of the majority. I think the contention of the respondent that the deed, which is made in the form prescribed by statute, should be construed as a warranty deed carrying implied covenants as provided for in said statute, is irresistible, and that the deed must be construed as though such covenants had been expressed therein. Nor do I think with the majority that the deed is taken out of the statute because it is made fuller than