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the question propounded after he had testi- . plead and be impleaded in all suits or profied that he was a graduate of a medical ceedings brought by or against it. The deschool and a licensed physician, thus show clared oliject of the corporation so formed is ing a prima facie qualification."

to promote the maritime shipping and (cillOther errors are assigned, but not argued, mercial interest of the Port of Colun:linl. nor do they appear material. The record For that purpose, it is given power and made disclosing no material error, the judgment its duty to own, operate, and maintain a of the court below should be a flirmed, i towage service from the .. "1 sea, at the en

trance of the Columbia river, to all its

upon the river extending as far inland is (50 Or. 169)

Tongue Point, near Astoria; to purchase, FARRELL P. PORT OF COLUMBIA et al.

own, lease, control and operate tugs and pilot Supreme Court of Oregon. Sept. 3. 1907.) | boats; to appoint and license pilots; to fix and 1. STATUTES-GENERAL AND SPECIAL LAWS colle«t (harge for pilotage; to acquire, own, MU'YICIPAL CORPORATIONs—CREATION.

and dispose of real and personal property : to ('onst. art. 11, $ 2, as amended June, 1906. providing that corporations may be formed un- make any contracts the making of which is der general laws, but shall not be created by not in this act expressly prohibited; and to special laws, and that the Legislature shall not do all other acts and things which may be amend, enact, or repeal any act of incorpora requisite, necessary, or convenient in carrytion for any municipality, city, or town, etc., deprives the Legislature of power to create a

ing out the powers conferred. For the purcorporation for municipal purposes by special pose of acquiring tug and pilot boats, and proact.

viding the same with necessary appliances, [Ed. Note.-.For cases in point, see Cent. Dig. the corporation is given power to issue, sell, vol. 14, Statutes, $ 89.]

and dispose of bonds not exceeding the aggre2. SAME.

gate sum of $100,000, and power and auLaws 1907, p. 182. incorporating the Port of Columbia as a municipal corporation, is a

thority to assess, levy, and collect each year public law, but not a general one; it being ap a tax upon all property real or personal, withplicable only to a particular locality.

in its boundaries, which is by law taxable 3. SAME-PUBLIC LAWS-DEFINITION.

for state and county purposes, not to exceed A public law is one not designated by the statute itself as private as provided by Const.

a rate therein specified, to retire such bonds art. 4, § 27, and of which court will take ju at maturity and the payment of interest dicial notice.

thereon. The power and authority given to (Ed. Note.-.For cases in point, see Cent. Dig. the corporation is to be exercised by a board vol. 44, Statutes, $ 79.]

of commissioners, and their successors in 4. SAME - SPECIAL LAWS - MUNICIPAL COR

office to be appointed as in this act provided. PORATIONS. Laws 1907, p. 182, incorporating the Port

This law was evidently modeled after that of Columbia as a municipal corporation, was in creating the Port of Portland (Sess. Laws violation of Const. art. 11, § 2, as amended 1891, p: 791), and, if the Constitution had not June, 1906, prohibiting the formation of cor been amended since the enactment of the latporations by special laws, and prohibiting the Legislature from enacting, amending, or repeal

ter statute, it could possibly be sustained, if ing any charter or act of incorporation for a otherwise valid, on the ground that it is a municipality, city, or town.

corporation created for municipal purposes. [Ed. Note.-.For cases in point, see Cent. Dig.

At the time of the passage of the Port of vol. 44, Statutes, $ 89.]

Portland act, the Constitution (article 11, § 2) Appeal from Circuit Court, Multnomah provided that corporations may be formed County ; John B. Cleland, Judge.

under general laws, but shall not be created Suit by Sylvester Farrell against the Port by special laws, except for municipal purof Columbia and others. From a judgment poses, and it was held that the Port of Portin favor of defendants, plaintiff appeals. Re

land was a corporation formed for municipal versed. Judgment for plaintiff.

purposes within the meaning of this provi

sion. Cook v. Port of Portland, 20 Or. 580, J. M. Gearin, for appellant. Warren E.

27 Pac. 203, 13 L. R. A. 333. In June, 1900, Thomas and S. B. Linthicum, for respondents.

the section referred to was amended to read: G. C. Fulton and F. J. Taylor, for Clatsop "Corporations may be formed under general county.

laws, but shall not be created by the legis

lative assembly by special laws. The legislaDEAN, C. J. This suit involves the con tive assembly shall not enact, amend, or restitutionality of an act of the legislative as. peal any charter or act of incorporation for sembly of 1907 to establish and incorporate any municipality, city or town. The legal rotthe Port of Columbia. Laws 1907, p. 182. ers of every city and town are hereby grautBy this act the couuties of Multnomah, Clat- ed power to enact and amend their municipal sop and Columbia are created a separate charter, subject to the Constitution and crimdistrict, and the inhabitants thereof are con inal laws of the state of Oregon." By this stituted and declared to be a corporation by amendment the power to create corporations the name and style of the "l'ort of Colum: for inunicipal purposes by special act was not bia," and as such to have perpetual succes only eliminated, but the creation of a corsion; to hold, reieire, and dispose of real poration by such an act is expressly prohibitand personal property; tu sue and be sue:1. ed, and it is no longer in the power of the

legislative authority to create a corporation, brought within the relation and circumstanpublic or private by a special law. It would ces for which it providerl. But when it is apseem, therefore, that the act incorporating the | plicable only to a partikular branch or desigPort of Columbia is in violation of this sec nated portion of such persons, places, or tion, as amended, and voidl. But counsel ar things, or is limited in the object to which it gue that it is a general and not a special law, I applies, it is special. Lippman v. People. 175 and therefore not prohibited by the Constitu Ill. 101, 51 X. E. $72; Wheeler v. Pennsyltion. It is not easy to define the distinction vania, 77 Pa. 338; 26 Am. & Eng. Ency. of between a general law and one that is special, Law (20. Eil.) 532: 1 Lewis, Sutherland. Stat. and to use the language of the Court of Ap Con. $ 19.5. It is in this sense that the terms peals of New York: "It has been found X "general" and "special" are used in the provipedient to leave the matter, to a considerable sion of the Constitution now under consideraextent, open, to be determined upon the spe tion. The object of the amendment was to de. cial circumstances of each case." Ferguson | prive the lawmaking power of the right to v. Ross et al., 126 X Y. 159, 27 N. E. 954. (reate particular corporations, either public

Statutes are often classified as public or or private, and to require that all corporageneral and private or special, a public stat tions be formed uncler a law, the provisions of ute being one of which the courts will take which shall be applicable alike to all. A generjudicial notice, while a private statute must al law, within this section of the Constitution, be pleaded. 1 Kent, *160; 1 Blackstone, *3.7. is one by which all persons or localities comThat this is a public law must be conceded, plying with its provisions may be entitled to not only because it is one of which the courts exercise the powers and enjoy the rights and will take judicial notice, but because the privileges conferred. A special law, on the Constitution provided that every statute shall other hand, is one conferring upon certain be a public law unless otherwise declared by individuals or citizens of a certain locality the statute itself. Article 4, § 27. It does rights and powers or liabilities not granted not follow, however, that because it is a to, or imposeil upon, others similarly situated. public law it is a general one. “Public" ind The act creating the Port of Portland is clear"general” as applied to statutes are some ly a special law as so defined, and cannot be times synonymous, depending upon the ion upheld without doing violence to the expresstext, but they are not so in all cases. Every ed and plain language of the Constitution. general law is necessarily a public one, but The provision of article 1, $ 23, prohibiting every public law is not a general one. Thus the passage of special and local laws on an act incorporating a city is a public law, enumerated subjects, was under discussion but it is not a general one, because it is ap in Allen v. Ilirsch, 8 Or. 412, anil Maxwell v. plicable to a particular locality. Also an act Tillamook Co., 20 Or. 1995, 26 Pac. 803. What authorizing a certain school district to issue is there said in reference to the distinction bonds for the purpose of erecting a school between general and special laws must be unhouse, and purchasing a site therefor. is a dlerstood as applying to the construction of special law, and in violation of a constitution that provision of the Constitution and has al provision that “the Legislature shall pass only a general bearing upon the present case. no special act conferring corporate power." The cases of Dunn 1. State t'niversity, 9 Clegg v. School District, 8 Yeb. 179; School Or. 357, and Liggett v. Ladd, 23 Or. 26–5, 31 District v. Insurance Co., 103 U. s. 707. 26 Pac. 81, are cited as authorities supporting L. Ed, 001. And, again, laws amending a city defendants' position. It is argued that the charter in respect to making local improve regents of the l'niversity and of the Agriments, or extending the limits of a particular cultural College are not corporations for mucity, are special acts, and held unconstitu nicipal purposes, and since at the time of the tional under a provision that "the Legisla- | passage of the law's providing for their ap. ture shall pass no special act conferring cor pointment and defining their duties the Legporate power." Atchison v. Bartholow. + islature was inhibited from creating corporaKan. 124; City of Wyandotte v. Wood, 5 Kan. tions by special law, except for such purposes, 603; State ex rel. Attorney General v. City the court necessarily must have concluded in of Cincinnati, 20 Ohio St. 18. When used as ruling that they are incorporations, and that opposite to "private," and having reference the act providing for their appointment was a to the subject-matter of a statute, the term general one. Dunn v. University (which was "general" is equivalent to "public." When, citel in Liggett v. Ladd, as authority for however, it is used in reference to the terri holding that the recents of the Agricultural tory embraced within a law, and in opposi- | College are a body capable of taking and tion to loc:ul," it means operating over the holding title to real property) was a suit to whole jurisdiction of the lawmaking power. avoid a deed made to the regents. The de instead of a particular locality. And, when it fense was that they were agents of and held is used in contradistinction to "special," it the property in trust for the state, and theresignifies relating to the whole community or | fore could not be sued. The court considered all of a class instead of to a particular local- this position unsound.

this position unsound. The effect which the ity or a part of a class. In this latter sense a provision of the Constitution inhibiting the lair is general when it operates equally and (reation of corporations by special act had on uuiformly upon all persous, places, or things the question for decision is not referred to or

mentioned by the court. It is said in the ern avenue, in said city, in pursuance of Oropinion, howerer, that the University itself is dinance No. 11,704. From the judgment connot a corporation, but that the regents are firming the assessment roll, the Puget Sound an incorporated body, although not made so Improvement Company and others appeal. by the Legislature. But after discussing this Aflirmed question it is finally concluded that, whether

Peters & Powell and Harold Preston. for an incorporation or not, they were agents of

appellants. Scott Calhoun and Elmer E. the state, holding the legal title to the prop

Todd, for respondent. erty then in controversy, and for that reason possessed no immunity for being sued, and that was the only point in the case. Its de

PER CURIAM. The city of Seattle estermination in favor of the plaintiff was suffi

tablished a street between Virginia and Pike cient for the purpose of the decision, and

streets in that city, calling the same "Pike what is said about the regents being an in

Place." The cost of the improvement was corporation may, with propriety, be deenied $125,000. The statutory board of commisdicta. But, however that may be, the deci sioners was appointed by the court to assess sion is not an authority supporting the act

the costs of the improvement upon the prornow under consideration. The regents of the erty benefited. The commissioners charged University, if an incorporation, in the sense to the city at large $15,000, and apportioned that they may take and hold title to property,

the balance upon private property, making reand sue and be sued, are not a corporation

turn thereof as required by the order apin the ordinary meaning of that term. They pointing them. At the hearing had on this are merely administrative agents of the state, return a number of property owners appeared charged with the control and supervision of

and objected to the assessment made against one of its educational institutions, with no

their respective properties, contending, among power to levy or collect taxes, or impose

other things, (1) that it was not made in acburdens upon the people of the state or any

cordance with benefits, but in proportion to particular locality thereof.

its market value; and (2) that the assessHaving reached the conclusion that the act

ments as made against their respective propunder consideration is unconstitutional and erties greatly exceed the benefits conferred. void, because it is an attempt to create a cor

The trial court heard evidence on the objecporation by a special law, it is unnecessary

tions, found therefrom that they were not to consider the question as to whether a cor

well founded, and confirmed the roll.

The poration of the kind sought to be created is a

objectors named in the title appeal, and asmunicipality, within the meaning of that por

sign as error the ruling of the court on the tion of article 11, $ 2, as amended, which pro

objections above cited. hibits the Legislature from enacting, amend

With reference to the first objection, Coming, or repealing the charter or the act of in

missioner Wateman did testify that one of corporation of a municipality, city, or town.

the elements taken into consideration in esThe decree of the court below will be re

timating benefits was the value of the parversed and one entered here in favor of plain

ticular lot under consideration, and he pointtiff.

ed out that the reason why certain lots were

assessed in excess of certain others lying in MOORE, J., did not sit in this case

the same vicinity was because they exceeded in value tlie others; the excess in the amount

of the assessment being due to the excess of (47 Wash. 42)

value of the one over the other, the percentIn re CITY OF SEATTLE.

age of benefit being the same in each case. (Supreme Court of Washington. Sept. 5, 1907.) The appellants argue that this is assessing 1. MUNICIPAL CORPORATIONS - STREET Iv according to market value, and not according PROVEMENTS-ASSESSMENTS.

to benefits, the manner contemplated by the In making assessments on abutting property for a street improvement, the value of the

statute. We do not think, however, that this different pieces of property may be considered. is a just criticism of the action of the com[Ed. Yote.--For cases in point, see Cent. Dig. missioners.

missioners. As we understand the evidence, vol. 36, Municipal Corporations, $ 1110.)

the assessment was not based entirely upon 2. SAME.

values that is, the commissioners did not Complaint may not be made of the manner merely make an estimate of the values of the in which commissioners arrive at the result in assessing abutting property for street improve

different lots thought by them to be benefited ments, where the property is not assessed for by the improvement, and then apportion the more than it is benefited, or for more than its

charge among the lots on a percentage basis proportionate share of the cost of the improve

--but we understand that value was only one ment.

of the elements taken into consideration in [Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $ 1094.]

estimating benefits, that they not only con

sidered this, but considered all such other Appeal from Superior Court, King County; elements as appeared to them to enter into Mitchell Gilliam, Judge.

the question. There can be no valid objecIn re petition of the city of Seattle with tion to this method of proceeding, as cerreference to establishing and laying out W'est- | tainly the value of a given tract is proper to

be taken into consideration with other ele jury could not find for plaintiff unless they ments in determining what proportion of an

found that he was an employé of defendant,

given at defendant's request, did not become the assessment such tract shall bear. But, if

law of the case, so as to preclude the jury this were not so, the question would not from rendering a verdict on the other thecry. be very material. The commissioners are defendant claiming that there was no evidence chirgeable with the result of their work, and

in the record to support the instruction.

5. MASTER AND SERVANT-ESTABLISHMENT OF not with the manner by which they arrive

RELATION-QUESTION FOR JURY. at that result. If the return itself does not In an action for injuries to plaintiff, who show that the premises of the objector are claimed to be working as defendant's servant, assessed more than they are benefited, and

evidence as to whether plaintiff was defendant's

servant or the servant of an independent conmore than their proportionate share of the

tractor held for the jury. cost of the improvement, the objector is not

[Ed. Note.-For cases in point, see Cent. Dig. injured, and hence it is of no moment to him vol. 31, Master and Servant, $ 1135.] what process the commissioners employed in 6. DAMAGES-INJURIES-EXCESSIVENESS. order to arrive at the result reached by them. Plaintiff, while employed on defendant's On the question of the excessiveness of the

premises, stepped into an unguarded vat of hot

water, and was badly burned. He suffered seassessment against the property of the ob

verely for some time, but his injuries were not jectors, we find the evidence irreconcilably entirely permanent.

entirely permanent. Held, that a verdict allow. conflicting. But, after a painstaking exam

ing plaintiff $2,700 damages was excessive, and ination of it, we are unable to say that the

should be reduced to $1,700.

[Ed. Note.--For cases in point, see Cent. Dig. roll as returned is inequitable or unjust, or

vol. 15, Damages, 88 357–371.] that the objectors' properties have been assessed more than they have been benefited,

Appeal from Superior Court, Pierce Counor more than their just proportion of the

ty; W. 0. Chapman, Judge. cost of the improvement.

Action by J. H. Meyers against the Syndi. The judgment confirming the assessment

cate Heat & Power Company. From a judgroll should be affirmed; and it is so ordered.

ment for plaintiff, defendant appeals. Affirmed on condition.

Fogg & Fogs, for appellant. Walter Chris(47 Wash. 48)

tian and Chas. T. Peterson, for respondent. MEYERS v. SYNDICATE IIEAT & POWER CO.

FULLERTON, J. This is an action for (Supreme Court of Washington. Sept. 5, 1907.) personal injuries. In his complaint the re1. MASTER AND SERVANT-INJURIES TO SERV spondent, who was plaintiff below, alleged, in ANT-IELATIONSHIP-SAFE PLACE.

substance, that he was employed by the apIn an action for injuries to servant, evidence held to warrant å finding that one R.

pellant to work in and about a certain heat was employed as defendant's servant to perform and power plant wbich the appellant was the work, with authority to hire plaintiff to conducting in the basement of a building assist therein, rendering defendant liable for

known as the "Washington Building," locatplaintiff's injuries by failure to provide a safe place to work.

ed in the city of Tacoma; that connected [Ed. Note.--For cases in point, see Cent. Dig. with the power plant was a toolroom mainvol. 31, Master and Servant, $ 953.]

tained by the respondent, in which were kept 2. NEGLIGENCE-DANGEROUS PREMISES — LI the tools with which the respondent was to CEYSEES-INJURIES.

work; that beneath the floor of the toolPlaintiff, even if not defendant's servant. held a licensee on defendant's premises by de

room, and opening therein, was a hot-water fendant's invitation, and defendant was there

tank, filled with boiling water, which the fore responsible to plaintiff for failure to main appellant carelessly and negligently suffered tain the premises in a reasonably safe condition, to remain uncovered and unguarded; that so as not to expose him to hidden dangers of which he was not aware, and which were known

the toolroom was insufficiently lighted, so to defendant.

that any one coming into or passing through [Ed. Note.-For cases in point, see Cent. Dig. the same was in grave danger of stepping vol. 37, Negligence, $$ 42, 41.]

into the water tank; that the respondent 3. TRIAL-SUFFICIENCY OF EVIDENCE-CHAL had never been warned of the existence of LEXGE-EFFECT.

the tank; that in the course of his duties, A challenge to the sufficiency of the evidence must be denied if the evidence makes a

while working under the direction of the apcase against the challenging party, whether pellant's foreman, it became necessary for such case falls strictly within the pleadings or him to go into the toolroom to get some not.

tools; tbat, after passing into the room, the 4. SAME-ISSUES AND PROOF-INSTRUCTIONS. Plaintiff, in an action for injuries, alleged

lights in the adjoining rooms went out, learthat he was defendant's servant, and that de

ing the toolroom insufficiently lighted for fendant was negligent in failing to provide a him to see the water tank, and on his atreasonably safe place to work. Proof disclosed

tempting to leave the room he stepped into that plaintiff was rightfully on the premises and was entitled to recover, though he was not

the tank with his left foot, causing him great defendant's servant, on the theory that defend

and permanent injuries, for which he deant maintained an unguarded vat of hot water manded judgment. In its answer the app in a room on the premises, which was uink own to plaintiff, into which plaintiff fell. II eld,

pellant denied that the respondent was in that defendant having only challenged the sufli

its employ, or working under the direction ciency of the evidence, an instruction that the

of the foreman at the time he was injured,

and denied that it was necessary

of Diamond, with a couple of helpers, to the course of his duty or otherwise for the re plant, directing them to do certain prelimspondent to go into the room in which he inary work found necessary to be done bewas injured, and, while admitting that he fore the pipe could be moved. Diamond and did go into the room and step into the tank, the helpers went to the plant on Thursday, denied that the tank was anywhere near the and continued working there during the repassageway of persons going into or through mainder of the week. While working there, the room, and as an affirmative defense al the tools used by them were kept by permis. leged contributory negligence on the part of sion of the appellant in a room off the enthe respondent. For reply the respondent de gine room towards the front of the building, nied the affirmative allegations of the ar called by the witness the "toolroom." This pellant's answer. The case was tried to a room contained a work bench, and certain jury, which returned a verdict in respond tools belonging to the appellant used in the ent's favor for $2,700. At the close of the business of steam fitting, and appears to evidence, the appellant moved the court to have been used by the appellant as a worktake the case from the jury and enter a judg shop for doing repair work. The hot-water ment for the appellant, and, on the motion tank mentioned in the pleadings was in this being overruled, requested the court to in room. It was a receptacle into which was struct the jury to return a verdict in its fa drained the water condensing from the steam vor, which motion was also denied. After within the steam pipes. The respondent, the return of the verdict, it mover the court who was also a master steam fitter, was at for a new trial, on the ground, among others, this time in the employ of Richardson, workthat the rerdict was excessive and given un ing on a building in another part of the der the influence of passion and prejudice. city. On Saturday preceding the Sunday it This motion the court likewise denied. The was expected to move the pipe, Richardson several rulings on these motions constitute told the respondent of the fact and requested the errors assigned on this appeal.

that he go down there the next morning and The motion to take the case from the jury, do the work, telling him at the same time in and the motion for a directed verdict, raise answer to inquiries that he would find the but one question, namely, the sufficiency of neressary tools and helpers there when he the evidence to justify a verdict in favor of arrived. The respondent reached the plant the respondent; and, since the jury found in shortly before 8 o'clock on Sunday morning. favor of the respondent, we must accept as and found Diamond there in the engine room. true, where the evidence is contradictory, They at once proceeded to change their that part most favorable to his contention. street clothes for their working clothes, and, The evidence tended to show the following when they had finished, the respondent infacts: The appellant operates a heat, light, quired of Diamond concerning the tools. Diaand power plant in the basement of the Wash- : mond told him they were in the toolroom oft ington Building, in the city of Tacoma. That the engine room, and they started for them; a fixture connected with its plant was an ex the respondent leading. They passed through haust pipe which ran from the boiler room the door into the room, and had just reachell to near the center of the building, thence up the work bench when the lights in the buildwards, through a light well, to the roof. To ing went out. Diamond remarked that he accommodate certain alterations that were had a candle, and proceeded to light it with being made in the building, it became neces a match. He failed in his effort, and, not

1 sary to change this pipe to another part of having another match, the respondent said the light well. One Charles Richardson was he would go and get matches. He turned selected to do the work. The appellant's and took a step or two towards the door. secretary called him down to the plant, show when he stepped into the hot-water tank and ed him what was necessary to be done, and received the injuries for which he sues. The directed him to procure the necessary assist- ; tank was uncovered and unguarded, and the ance, and move the pipe to the required po respondent had not been told of its being in sition, telling him that the change must be the room by the appellant, nor did he know made on the coming Sunday, as that would of its existence. be the first day the fires would be out and The facts as here stated seem to us to warthe pipe cool enough to be handled. Richard rant a recovery, no matter what view may son was a master steam fitter, maintaining he taken of the relation existing between the a workshop in the city of Tacoma, where he appellant and respondent. If the respondent kept all the necessary materials and tools , was an employé of the appellant, then the to successfully carry on his trade. IIe also appellant was liable on the prinçiple that it kept regularly in his employ a number of failed to provide him a reasonably safe place men, some of whom were master steam fit , in which to work. On the other hand, if he ters, and others apprentices and helpers. was an employé of Richarilson und RichardThe conversation between the appellant's son was an independent contractor, it is liasecretary and Richardson occurred near the ble to him on the principle that he was on middle of the week, probably on Wednesday. the appellant's premises bs special invitaAfter ascertaining what was to be done, tion, anıl appellant owed him the duty to Richardson sent a steam fitter by the name maintain the premises in a reasonably safe

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