NORTHERN PAC. EXP. CO. v. METSCHAN, 90 F. 80

MORROW, Circuit Judge, after making the statement of the case as above, delivered the following opinion: As the provision of

section 6 of the act of 1887 relating to express companies is not included in the title of the act, and is not properly connected with the subject of that title, it is clearly void as to express companies, under

section 20 of

article 4 of the constitution of the .state. But the defendant does not base his right upon that provision. His claim is that he has the right to retain the bonds in his posses.sion by virtue of the act of October 21, 1864, amended and approved December 19, 1865, and as further amended by the act approved October 24, 1870. Gen. Laws Or. 1843-72, p. 616, compiled and annotated by Matthew P. Deady and Lafayette Lane. The plaintiff claims that this statute was expressly repealed by

section 25 of the act of 1887, providing for the repeal of sections 1, 2, 3, and 16, c. 24, of the Miscellaneous Laws of Oregon. It is conceded that such was (lie purpose of

section 25, but it is contended that, as the subject of such repeal was not expressed in the title of the act of 1887, the

section is ineffective to accomplish that purpose. The constitutional requirement that every act shall embrace but one subject, which must be expressed in the title, is not violated by an omission to mention in the title of

an act, relating (o a single subject, the repeal of prior acts inconsistent with the new enactment, if the repealing clause is also confined to repealing statutes relating to that one subject; but when the repealing clause departs from the subject embraced in the title of the act, and purports to repeal a statute relatiug to a subject not indicated by such title, it comes within the prohibition of the constitution, and must be treated as void and of no effect as to the subject not mentioned in the title.

The title of the act of 1887 is, “An act to license and regulate insurance business in the state of Oregon.” This title embraces but one subject, and relates to a particular class of business. It does not purport to regulate the express business, or to in any way legislate upon that subject; and when, therefore, we find in the body of the statute the express business made subject to the same regulations as the insurance business, we are compelled to treat sncli legislation as unconstitutional and void. This proposition is, however, not in controversy in this case.

The substantial contention of the plaintiff is that the act of 1887 is a new statute covering the whole subject embraced within the provisions of the previous acts, and that, to give effect to the legislative intent, the repealing

section must necessarily include the acts repealed. But this is not a question of legislative intent. If it were, we would be compelled to give effect to the entire statute, and hold that foreign corporations engaged in the express business are as much subject to the provisions of the act as those engaged in the insurance business. Nor does the question of validity relate to any particular part of the' act of the legislature. The question is, does the act embrace a sub ject not expressed in the title?

If it does, so much of the act as relates to that subject is void, whether it is found in the body of the act, or in the repealing clause. In the act under consideration, the title relates only to the insurance business; but in the body of the act the express business is also included and regulated, and in the repealing clause statutes are repealed which refer to and govern the express business as well as the insurance business. Under the constitutional provision referred to, it is plainly the duty of the court: to declare so much of this statute as relates to the express business unconstitutional and void.

The second proposition of the plaintiff in error is that the law under which the defendant claims the right to hold the bonds in question has no validity because it was never properly adopted. That is to say, the ad: approved October 24, 1870, was amendatory of previous acts requiring the deposit: to be made with the county treasurer, instead of with the state treasurer, and the amendatory act requiring the deposit to be made with the treasurer of the state failed because it did not properly describe the act amended.

The first act was approved October 21, 1864, and was entitled “An act to regulate and tax foreign insurance, banking, express and exchange corporations or associations. doing business in this state.” The second act was approved December 19, 1865, and was entitled “An act to amend

an act entitled ‘An act to regulate and tax foreign insurance and express corporations or associations doing business in this state.’ ” The act of 1870 is entitled “An act to amend

an act to regulate and tax foreign insurance and express corporations doing business in this state,"approved October 21, 1864; amended and approved December 19, 1865.” The first amendatory act, in reciting the title of the original act of 1864, omits the words “banking” and “exchange,” as contained in the latter act ; and it is claimed by the'plaintiff that by this omission the origina' act was not sufficiently described. It is also claimed that the act of 1870 is void for the same reason, and also because the title purports to amend

an act which has already been suspended. The words “banking” and “exchange” appear to have been omitted from the title of the original act as recited in the amendatory act for the purpose of making the entire statute, including the title, read as it was intended to stand after it was amended. • Possibly this treatment of the title of the original statute was supposed to be in accordance with the requirements of the constitution, that “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.” Const. Or. art. 4, § 22. It has been generally understood that this provision refers to the body of the act or section, and that an amendment to an existing act requires no new title. Oregon v. Phenline, 16 Or. 107, 109, 17 Pac. 572. The reference to the title of the original act was therefore not accurate, but it was not such an error as was calculated to mislead the reader as to the purpose of the amendment. Trivial errors in describing the title of the original act, which cannot mislead, will not invalidate the amendatory act. People v.

Howard, 73 Mich. 10, 40 N. W. 789. This statute, as amended by the act of 1865 and by the act of 1870, appears to have been set forth and published as required by the constitutional provision. Laws 1870, p. 46, and Gen. Laws Or. 1843-72, p. 616, compiled and annotated by Matthew P. Deady and Lafayette Lane. This was sufficient, and disposes of plaintiff’s objections to both amendatory acts. Oregon v. Phenline, supra. The judgment of the circuit court is affirmed, with costs.