ground, as was the fact here. It is conceded by appellants that, in some states where there is no statute regarding lis pendens, the courts have held that one who purchases land after the proceedings are commenced takes subject to the proceedings. 2 Pomeroy's Equity Jurisprudence (2d Ed.) § 632 et seq.; 2 Lewis on Eminent Domain, 338. But it is argued that the common-law rule is repealed by section 4887, which does not apply to this class of cases. Either the statute or the common-law rule, one or the other, must be in force as regards this class of cases, because, as seen above, no provision in reference thereto is made by the statute relating to eminent domain. We think the Legislature used the term "actions affecting the title of real property" as applying to all actions and proceedings relating to such property, and for that reason made no provision in the eminent domain act for notice to purchasers or subsequent incumbrancers pending the suit. The giving of this instruction was therefore not error.

Appellants allege, further, that the court erred in giving the following instruction: "You are instructed that, if you find from the evidence that Castle Rock can only be profitably worked by blasting it in such a manner that portions of it would fall upon land now owned by the railroad company, then you may disregard all the evidence of value as a quarry. The owners of Castle Rock are by law required, if they desire to quarry the same, to so quarry their rock as not to interfere with the rights of others. If you find from the evidence that petitioner herein owns a right of way across the Snooks donation land claim and up to the land of defendants, then it is the duty of the defendants or claimants to quarry the rocks so as not to interfere or trespass upon this right of way, and you are not to consider the inability of defendants or claimants to use this right of way on the Snooks donation land claim as an element of defendants' damages whereby the property not taken by this action is damaged. The damage you are to consider is confined to that which arises and naturally flows from the appropriation of the land for a right of way across defendants' land, which is sought by this suit." The evidence shows that the right of way of the railway runs close to the base of a large rock, several hundred feet in height, the exact measurement not being shown, known as "Castle Rock"; that one face of this rock is toward the Columbia river, which is 400 or 500 feet distant from the rock; that the railway runs between the rock and the river; that the appellants did not own all the land between the river and the rock; that a large portion thereof was

owned by the railway company. There was apparently no dispute that the land of the appellants sought by the railway company was not worth to exceed $50 per acre for agricultural purposes. The appellants claim that the land taken by the railway was a great damage to other lands of appellants not taken, by reason of the fact that Castle Rock was valuable as a stone quarry, because it contained about 18,000,000 tons of stone, and that the construction of the railway prevented appellauts from quarrying the stone at a profit. The great burden of appellants' evidence was to the effect that, in order to work the rock known as Castle Rock at a profit, it was necessary to blast down great quantities of the rock at a time. and throw the same toward the river. Otherwise the property could not be worked at a profit, and was therefore of no value. This same evidence showed without question that, in order to do this, the rock would be piled high upon lands which appellants did not own, and could not acquire because such lands were already owned by the railway company. It requires no argument to show that, if appellants' property was so situated that it could not be utilized without injury to others, its use would not be permitted at all; and, if the value of appellants' property was dependent upon other property which they did not own and could not acquire, then, as shown by the appellants themselves, the property had no value, and, of course, was not damaged. We think the instruction was proper in this case.

The verdict and award of damages in this case was $5,000. Appellants contend that this amount is too small, and that a new trial should be granted on that account. After a careful reading of all the evidence in the case, we are satisfied that the appellants have no good reason to complain on this account, and that a much smaller award would have been sustained.

The questions presented which we have not noticed are either decided by what we have said above or are not deemed of sufficient importance to warrant a reversal.

We find no reversible error in the record, and the judgment is therefore affirmed.

HADLEY, C. J., and ROOT, CROW, and DUNBAR, JJ., concur.

RUDKIN, J. (dissenting). I do not think that the mere fact that a stone quarry cannot be profitably worked at the present time, without blasting and casting rock on the property of others, entirely destroys its value as such; and I therefore dissent from the judgment.

(50 Or. 269)

STEVENS v. BENSON, Secretary of State. (Supreme Court of Oregon. Sept. 3, 1907.)

1. CONSTITUTIONAL LAW LEGISLATIVE ACTION-DIRECTION-SELF-EXECUTING PROVI

SIONS.

Const. art. 4, § 1, as amended in 1902, reserving to the people initiative and referendum powers, and providing for the submission of legislation to the voters of the state or other political subdivision, is self-executing.

2. SAME-ENFORCEMENT-STATUTES.

Laws 1907, p. 399, providing the procedure to facilitate the enforcement of the initiative and referendum powers reserved to the people by Const. art. 4, § 1, as amended in 1902, was a proper exercise of legislative power, though the constitutional provision was self-executing. 3. STATUTES-DIRECTORY PROVISIONS.

Laws 1907, p. 399, providing for the carrying into effect of the initiative and referendum powers reserved to the people, provided (section 1) a form of petition, which was required to be substantially followed. The form contained a warning clause that it was a felony for any one to sign any such petition with any name other than his own, or to knowingly sign his name more than once to the same measure, or to sign such petition when he was not a legal voter; and section 2 declared that the form given was not mandatory, and if substantially followed in any petition it should be sufficient,

regardless of clerical or mere technical errors Held, that the form, in so far as it contained the warning clause, was merely directory, and that a referendum petition omitting such clause was not thereby fatally defective.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Suit by Robert L. Stevens against F. W. Benson, as Secretary of State. From a decree in favor of complainant, defendant appeals. Reversed. Suit dismissed.

A. M. Crawford, L. R. Webster, and S. Smith, for appellant. Dan J. Malarkey and John F. Logan, for respondent.

EAKIN, J. On May 18, 1907, there was filed in the office of the Secretary of State a petition for referring to a vote of the people of the state, under the referendum provision of the Constitution, an act passed by the legislative assembly in February, 1907, providing for the custody and control of persons confined in county jails, etc.; and this suit was brought by plaintiff to enjoin defendant, as Secretary of State, from filing said petition tendered. Demurrer to the complaint was overruled, and final decree thereupon rendered enjoining the filing of the petition.

The objection to the petition was that it did not contain the warning clause required by section 1 of the act of the legislative assembly of 1907 (Laws 1907, p. 399), which provides for carrying into effect the initiative and referendum. Section 1 of that act provides that:

"The following shall be substantially the form of petition for the referendum to the people on any act passed by the legislative assembly of the state of Oregon, or by a city council:

91 P.-37

"Warning.

"It is a felony for any one to sign any initiative or referendum petition with any name other than his own, or to knowingly sign his name more than once for the same measure, or to sign such petition when he is not a legal voter.

"Petition for Referendum. ""To the Honorable ......, Secretary of State for the State of Oregon (or to the Honorable ...... Clerk, Auditor, or Recorder, as the Case may be, of the City of ......):

"We, the undersigned citizens and legal voters of the state of Oregon (and the district of ......, county of ......, or city of .... as the case may be), respectfully order that the Senate (or House) Bill No...., entitled (title of act, and if the petition is against less than the whole act then set forth here the part or parts on which the referendum is sought), passed by the ...... legislative assembly of the state of Oregon, at the regular (special) session of said legislative assembly, shall be referred to the people of the state of......, as the case may be), for their ap(district of ......, county of ......, or city proval or rejection, at the regular (special) election to be held on the ... day of ......, A. D. 19.., and each for himself says: I have personally signed this petition. I am a legal voter of the state of Oregon, and (district of ......, county of ......, city of ... ..., as the case may be). My residence and post office are correctly written after my name.'

"Sec. 2.

* The forms herein given are not mandatory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors."

The provisions of the Constitution involved are as follows: section 1, art. 4, amendment of 1902, namely: "The legislative authority of the state shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the legislative assembly and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safe

ty), either by the petition signed by five per cent. of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded.

* Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment until legislation shall be especially provided therefor."

The question arises: Is this section of the Constitution self-executing? A constitutional provision is said to be self-executing if it enacts a sufficient rule by means of which the right given may be enjoyed and protected.

The language used, as well as the object to be accomplished, is to be looked into in ascertaining the intention of the provision. As said in Willis v. Mabon, 48 Minn. 140. 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626: "The question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature. Does it indicate that it is intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined from a consideration both of the language used and the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed are fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing." To the same effect are Acme Dairy Co. v. City of Astoria (Or.) 90 Pac. 153; Swift & Co. v. City of Newport (Va.) 52 S. E. 821, 105 Va. 108, 3 L. R. A. (N. S.) 404; Taylor v. Hutchinson, 145 Ala. 202, 40 South. 108; Logan et al. v. Parish of Ouachita, 105 La. 499, 29 South. 975. As expressed by one court, whether it is intended thereby to declare personal rights of a citizen or to define a rule for the government of the Legislature; and, if the former, it is legislative, and needs no legislation to give it force. It is plainly expressed in the provision itself in this case that its reserved rights are to be independent of the Legislature, and is sufficiently specific that it may be carried out without legislative aid (Logan et al. v. Parish of Ouachita, supra); and in the last clause it provides that the Secretary of State, in submitting to the people the matter referred, shall be governed by the general laws until further provision is made by the Legislature, thus not only contemplating that such legislation is not necessary as to procuring and presenting the

petition, but also forestalling any possibility of defeat, by inaction of the Legislature in regard to the manner of its submission to the people. As said in Willis v. Mabon, supra: "The object being to put it beyond the power of the Legislature to render them nugatory by refusing to enact legislation to carry them into effect." If it were not selfexecuting, even though it were mandatory upon the Legislature to make provision to carry it into effect, there is no power to compel it to do so. The exercise of that power in any particular case must depend on the volition of the Legislature. Cooley's Const. Lim. (7th Ed.) 121; In re State Census, 6 S. D. 540, 62 N. W. 129; People ex rel. v. Rumsey, 64 Ill. 44. Thus a strong reason appears why it was intended to be self-executing, and it should be so considered.

2. But, when a provision of the Constitution is self-executing, legislation may be desirable for the better protection of the right secured and to provide a more specific and convenient remedy for carrying out such provision, and it is plain that the statute in question was intended for that purpose, and reduces to a system and simplifies the proceeding, makes every step definite, as well as placing safeguards around it to protect it from abuse, without curtailing the right or placing any undue burdens upon its exercise. As said by Judge Cooley, in his work on Constitutional Limitations (page 122), a constitutional provision that is self-executing may admit of supplementary legislation in particulars where in itself it is not as complete as may be desirable. It will also override and nullify whatever legislation, either prior or subsequent, would defeat or limit the right. Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Beecher v. Paldy, 7 Mich. 488; Willis v. Mabon, supra; Swift & Co. v. City of Newport News, supra. And so the Legislature may enact laws to facilitate the enforcement of constitutional provisions that are self-executing, and such laws will be obligatory upon the court when intended by the Legislature to be mandatory, so long as they do not curtail the rights reserved or exceed the limitations specified therein. Ordronaux's Constitutional Legislation, 262-265; People v. Draper, 15 N. Y. 532. Cooley's Constitutional Limitations (7th Ed.) 126, lays down a fundamental rule as to the power of the Legislature in such cases as follows: "In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in and may be exercised by the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discre

tion." And in Willis v. Mabon, supra, the court holds, that the remedy for enforcement of a self-executing constitutional right is always within the control of the Legislature to modify, change, or make exclusive, provided only it remains adequate, but is beyoud the power of the Legislature to defeat its object. Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684.

3. It is claimed by defendant, however, that the statute in this case, in so far as it relates to the warning clause contained in the form for the petition, is directory only, and that it constitutes no element of the petition proper, and therefore its omission from the petition in this case is not fatal. The statute has not in terms enacted that there shall be a warning clause upon the petition, but only in giving the form of the petition included a warning therein, which it provides "shall be substantially the form of petition," and further provides that "the forms herein given are not mandatory, and if substantially followed in any petition it will be sufficient, disregarding clerical and merely technical errors." This part of the statute is only a provision of a form to aid in carrying out a right already existing independent of the statute, and expressly states that it is not mandatory. Lewis' Sutherland's Statutory Const. § 627, says: "When the proceeding is permitted by the general law, and an act of the Legislature directs a particular form and manner in which it shall be conducted, then it will depend on the terms of the act itself whether it shall be considered merely directory, subjecting the parties to some disability if it be not complied with, or whether it shall render the proceeding void." If the Legislature creates a right, and at the same time prescribes the mode of its exercise, then such mode would be mandatory and exclusive; but when the right exists. and may be exercised effectually without such provision, and the legislative provision only relates to its better enforcement, the intention of such provision must be gathered from the act and its declared purpose, whether it shall be construed mandatory or directory. Section 611 of Sutherland provides: "Unless a fair consideration of a statute, directing the mode of proceeding of public officers, shows that the Legislature intended compliance with the provision in relation thereto to be essential to the validity of the proceedings, it is to be regarded as directory merely. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated. it will still be sufficient if that which is done ac

complishes the substantial purposes of the statute." To the same effect are 23 Am. & Eng. Ency. 458; Thomson v. Harris, 88 Hun, 481, 34 N. Y. Supp. 885; Custer County v. Yellowstone County, 6 Mont. 39, 9 Pac. 586. Negative words, or words of prohibition, or a penalty affixed to the requirements of a statute, make such provision mandatory, and must be complied with, or where the requirement is a necessary element of the thing to be done, or affects the rights or burdens of the persons interested, it must be observed. People v. Supervisors of Ulster, 34 N. Y. 268; Corbett v. Bradley, 7 Nev. 108. But the directions in a statute which are not of the essence of the thing to be done, but which are given with a view to the orderly and prompt conduct of the business, and by a failure to do which the rights of those interested will not be prejudiced are not commonly to be regarded as mandatory. 5 Words and Phrases, 4332; Custer County v. Yellowstone County, supra; Bladen v. Philadelphia, 60 Pa. 464. But there is an absence of anything indicating an intention that it shall be mandatory. On the contrary, it is clear that it is only directory. It is not of the essence of the thing to be done, viz.: Direct the Secretary of State to submit to the vote of the people at the next election the act known as "House Bill No. 243." There is no affirmative provision for it in the act, nor negative or prohibitive words relating thereto, and the statement following the forms that they shall not be mandatory leads us to the conclusion that the statute providing the warning clause in the form of petition is only directory, and its omission from the petition does not render it void; and the Secretary of State properly received the same for filing, and the lower court erred in overruling the demurrer and in granting the injunction.

Therefore the decree of the lower court is reversed, and, this being the only question involved in the case, decree will be entered here dissolving the injunction and dismissing the case.

BEAN, C. J., did not take part at the hearing of this case and Palmer v. Benson, infra, being a regent of the University of Oregon, the party interested in the latter case, and the question here being involved in both.

(50 Or. 277)

PALMER et al. v. BENSON, Secretary of State.

(Supreme Court of Oregon. Sept. 3, 1907.) STATUTES REFERENDUM-PETITION.

Laws 1907, p. 399. § 1. provides a form of petition for the carrying into effect of the referendum powers reserved to the people, and section 2 declares that every sheet of the petition for petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed by the initiative petition, but such petition may be filed with the Secretary of State in numbered sections, for convenience

in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Held that, while an initiative petition is required to contain a correct copy of the title of the act, a referendum petition containing a full and correct copy of the act without the title is sufficient.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Mandamus, on petition of Eugene Palmer and another, against F. W. Benson, as Secretary of State. From a judgment denying the writ, petitioners appeal. Reversed and remanded, with directions.

Tilmon Ford and M. E. Pogue, for appellants. A. M. Crawford and Geo. G. Bingham, for respondent.

EAKIN, J. On the 23d day of May, 1907, the plaintiffs and others presented to the Secretary of State for filing a petition directing a reference to the people, under the referendum provision of the Constitution, of a measure passed by the legislative assembly in February, 1907, known as "House Bill No. 37," to increase the annual appropriation for the support of the University of Oregon. Defendant refused to receive or file the said petition, and the plaintiffs bring this proceeding by mandamus to compel defendant to file said petition. Defendant answered to the writ of mandamus, denying the allegations of the same and alleging affirmatively that said petition is not in the form prescribed by section 1 of the act of the legislative assembly of 1907 (Laws 1907, p. 399), providing for carrying out the initiative and referendum, in that it did not contain the warning clause provided for in said act, and, further, that it does not contain a full and correct copy of the title and text of the measure sought to be referred. A reply was filed to the answer, and the cause tried in the court below upon the pleadings alone, and only two questions raised by the answer are suggested upon this appeal.

The objection made by defendant that the petition does not contain the warning clause provided by the statute has been fully considered in the case of Stevens v. Benson, 91 Pac. 577, just decided, and the decision in that case disposes of the objection here adversely to defendant. The only other question for consideration is whether the petition for the referendum must be attached to a full and correct copy of the title and text of the measure to be referred, or whether a full and correct copy of the text of the measure is sufficient.

The constitutional provision and the form of petition provided by the statute, upon which the proceeding is based, are set out in full in Stevens v. Benson, supra. Section 2 of the act to provide for carrying into effect the initiative and referendum (Laws 1907, p. 399), so far as it relates to the question

here discussed, is: "Every such sheet for petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed by the initiative petition; but such petition may be filed with the Secretary of State in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not more than twenty signatures on one sheet shall be counted," etc. The petition in this case did contain a full and correct copy of the text of the act, but erroneously gave the title of the act as "A bill for an act to increase the annual appropriation for the support and maintenance of the University of Oregon." when the real title of the act as passed is "An act to amend section 3529 of Bellinger & Cotton's Annotated Codes and Statutes of Oregon, by increasing the annual appropriation for the support and maintenance of the University of Oregon," and this discrepancy in setting out the title of the act is the ground assigned for the insufficiency of the petition. The purpose of the title to a bill or measure before the Legislature is, as stated in Clemmensen v. Peterson, 35 Or. 48, 56 Pac. 1016, "to prohibit the Legislature from combining in one act subjects wholly incongruous, diverse in their nature, and having no perceptible or necessary connection with each other, and to obviate the practice of inserting in an act clauses involving matter of which the title is not calculated or adequate to give or convey any intimation. Thus it was designed by the framers of the Constitution that in every case the proposed measure should stand upon its own merits, and that the Legislature should be fairly satisfied of its purpose by an inspection of the title, when required to pass upon it, so as not to be surprised or misled by the subject which the title purported to express." Neither the reason nor the necessity for such a title to a bill before the Legislature exists with reference to the referendum proceeding. The purpose of the petition for referendum is to identify a particular enactment of the legislative assembly which the petitioners desire to have referred to the people-a question of identity, not of legislation. There is a distinction in that regard between the referendum and the initiative, in which latter legislation is initiated and the whole matter must be formulated just as it is to be submitted to the people, while in the referendum it is only a question of the approval or disapproval by the people of what the Legislature has already enacted as a law. Section 1 of article 4 of the Constitution recognizes this distinction by providing that the initiative petition shall "include the full text of the measure," while as to the referendum no reference is made as to the manner in which the measure shall be mentioned in the peti