connected therewith on either side. From this point east the track is fenced, but it is not inclosed between the cattle guard and the west end of the depot grounds. The plaintiffs live and are in business at Bridal Veil. On the evening of April 11, 1904, they turned their horses out to graze on the uninclosed lands south of the depot as they had been accustomed to do for some time. During the night the horses strayed onto the track of the defendant, and were killed by its moving trains. The evidence tended to show that the horses entered upon the tract west of the east end of the passing track, but were run down and killed east of the cattle guard. The court below directed a nonsuit on the ground that the place of entry was within the depot grounds of the defendant and at a place it was not required to fence. The statute makes a railroad company liable for the value of stock killed by its moving trains, engines, or cars, upon or near an unfenced track (B. & C. Comp. § 5139), and is broad enough to include animals killed at the depot grounds. It has, however, been held that the statute did not extend to depot grounds because the purposes for which they are used, and the right of public convenience are inconsistent with the obligation to fence at that point. Moses v. Southern Pacific Co., 18 Or. 385, 23 Pac. 498, 8 L. R. A. 135; Sullivan v. O. R. & N. Co., 19 Or. 319, 24 Pac. 408. The question for decision upon the trial, therefore, was whether the place where the animals of the plaintiffs entered upon the track of the defendant was within or without the depot grounds. If within the depot grounds, the plaintiffs cannot recover in this action, but if not, defendant is liable under the statute unless the plaintiffs were guilty of contributory negligence. The parties differ radically as to whether the question thus presented is one of law or of fact. The plaintiffs claim that it was a question of fact, and should have been submitted to the jury, while the defendant insists that it was a matter of law for the court. The rule is, we take it, that whether a railway company shall fence its track at its depot grounds is a question of law, and, if the testimony shows that animals entering upon such grounds are injured or killed by moving trains, the owner cannot recover under the statute, and the liability of the company is for the court. Moses v. Southern Pac. Co., 18 Or. 385, 23 Pac. 498, 8 L. R. A. 135; Eaton v. Oregon R. & Nav. Co., 19 Or. 371, 391, 24 Pac. 413; Eaton v. McNeill, 31 Or. 128, 49 Pac. 875; Harvey v. Southern Pac. Co., 46 Or. 505, 80 Pac. 1061. But it is often a disputed question as to whether a certain point constitutes a part of the depot grounds, and if the evidence is conflicting or different inferences may be drawn from it, the question is for the jury, and not the court. Mr. Elliott says: "While it is purely a question of law whether or not a railway company shall fence at its depot grounds or at points where the erection of a fence would interfere with the company in transacting its

87 P.-34

business. It is a question of fact whether a certain point constitutes part of the depot grounds or whether the erection of a fence at any particular place would interfere with the company's employés in the performance of their duties." 3 Elliott, Railroads, § 1202. In Grosse v. Chicago & Northwestern R. Co.. 91 Wis. 482, 65 N. W. 185, the unfenced portion of the right of way was half a mile in length and extended north beyond a switch which was 1,400 feet from the depot building. At a highway crossing a short distance south of the switch it was customary to load and unload freight. Between such crossing and the switch, plaintiff's colts came upon the right of way and were killed, and it was held that it was a question for the jury whether the place of entry was a part of the depot grounds. In Rhines v. Chicago & Northwestern R. Co., 75 Iowa, 597, 39 N. W. 912, it was held that whether that part of the company's ground which was not the ordinary place of receiving or delivering freight but where freight of a single shipper was handled, should be left unfenced, was a question of fact for the jury. And, in Dinwoodie v. Chicago, etc., Ry. Co., 70 Wis. 160, 35 N. W. 296, it was likewise held to be a question of fact whether the defendant's right of way at a point 60 rods from the station building where there was a side track in addition to the main track was necessary and convenient and actually used for loading and unloading freight so as to make it a part of the depot grounds, thus relieving the company from the duty of fencing it. And in Bean v. St. Louis, Iron Mountain & So. Ry. Co., 20 Mo. App. 641, it was ruled that where a cow was killed adjacent to a railroad station and at a place used by the railroad for switching purposes in connection with its station grounds, the court could not declare as a matter of law that the company was not bound to fence its track at that point. See. also, Indiana, etc., Ry. Co. v. Hale, 93 Ind. 79; Chicago, etc., Ry. Co. v. Modesitt, 124 Ind. 212, 24 N. E. 986; McDonough v. Milwaukee, etc., Ry. Co., 73 Wis. 223, 40 N. W. 806. The depot or station grounds of a railway company is the place where passengers get on and off the trains and where freight is loaded and unloaded. and includes all grounds reasonably necessary or convenient to that purpose, together with the necessary tracks, switches, and turnouts thereon or adjacent thereto for handling and making up trains, storage of cars, and the like, and so much of the main track outside the switches as is requisite for the proper handling of trains at the station: 3 Words & Phrases, 2005 et seq.; 9 Am. & Eng. Enc. Law (2d Ed.) 367; Grosse v. Chicago, etc.. Ry. Co., 91 Wis. 482, 65 N. W. 185; Grondin v. Duluth, etc., Ry. Co., 100 Mich. 598. 59 N. W. 229. And where grounds have been appropriated, surveyed, and set apart by the railway company for station or depot purposes, it affords very strong, if not conclusive, evidence that their boundaries and extent are

such as and no more than are necessary and proper, and their limits should not be curtailed or extended by the court or jury unless in a very clear case: 3 Elliott, Railroads, § 1194; Chicago, etc., Ry. Co. v. Campbell, 47 Mich. 265, 11 N. W. 152; McGrath v. Detroit, etc., Ry. Co., 57 Mich. 555, 24 N. W. 854; Rabidon v. Chicago, etc., Ry. Co., 115 Mich. 390, 73 N. W. 386, 39 L. R. A. 405.

Now, there was no evidence in this case that the place where the plaintiffs' horses entered upon defendant's track was within the limits of the station grounds, as set aside and designated by the defendant, or within such grounds, as herein before defined, and therefore the court could not declare as a matter of law that defendant was not required to fence its track at such point. The north track constructed by the defendant in 1902, so far as the evidence shows, was intended to be used for the passing of trains, and was in no way connected with or necessary to the use of the depot grounds; nor, indeed, that it was on such grounds. We think, therefore, that the question whether the point where the horses entered was within the depot grounds was a question for the jury, and should have been submitted to them. A claim is made that plaintiffs were guilty of contributory negligence in turning their horses out to graze upon the uninclosed lands near the depot, but whether this was such contributory negligence under the circumstances as will defeat a recovery was for the jury. Moses v. S. P. Co., supra; 2 Thomp. Neg. § 2004.

Judgment reversed, and new trial ordered.

(48 Or. 479)

WOLFARD et al. v. FISIER. (Supreme Court of Oregon. Nov. 21, 1906.) RAILROADS RIGHTS IN STREETS-USE OF TRACK.

Where a railway switch, though used largely by defendant, is open to all persons for shipping purposes, it is a public track, and its presence in a public street does not constitute a nuisance per se.

clearly not a private track confined exclusively to the use of defendant or any limited number of persons, and, being available to the public generally for shipping purposes, its use is a public one. The number of shipments made by different individuals or firms over a track is not the criterion by which to judge whether or not it is a public track. The public or private character of a track or way depends upon the right of the public generally to its use and not upon the extent of the exercise of that right. If such right is confined to a limited number only, it is a private use and a private track, although such persons may use it an equal or unequal number of times each, while, if it is available to all the public who desire to use it for shipping purposes, it is a public use, although some one or more of the public may use it more frequently than others. As stated in Phillips v. Watson, 63 Iowa, 33, 18 N. W. 659, "if all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small." Elliott on Railroads, (3d Ed.) $ 961; Bridal Veil Lumber Co. v. Johnson, 30 Or. 210, 46 Pac. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818; Towns v. Klamath County, 33 Or. 233, 53 Pac. 604.

The former opinion sufficiently covers the only other point in the case, and we adhere to that opinion. The decree of the lower court will therefore be affirmed.

(48 Or. 359)

HEYWOOD BROS. & WAKEFIELD CO. v. DOERNBECHER MFG. CO. (Supreme Court of Oregon. Nov. 21, 1906.) 1. COSTS-TAXATION ON APPEAL.

Laws 1903, p. 209, provides that costs and disbursements shall be taxed, and allowed by the court or judge, but if any objections are made to the items of the cost bill, the clerk shall enter the same as a part of the judgment. If objections duly verified are filed, the court or judge must, without a jury, proceed to hear the issues involved on evidence introduced, each party being authorized to except to the ruling of the court or judge on questions of law, and

On Rehearing. Affirmed.

For former opinion, see 84 Pac. 850.

HAILEY, J. On the rehearing in this case it was strenuously contended by the counsel for the plaintiff that the track in question is used for private purposes only, for the benefit of defendant, and, being so used on a public street. is a public nuisance per se. The evidence, however, shows that, while the track is used largely by the defendant for shipping in grain for his mill and shipping out his products, it has also been used by others, including at least two of the plaintiffs, for shipping other products, such as lumber, shingles, brick, sand, hops, and other freight, and is open to all persons for shipping purposes. Such being the case, it is

that such section had no application to the taxation of costs and disbursements on appeal to the Supreme Court.

2. SAME-HEARING BY CLERK-FINDINGS.

There being no statute or rule regulating the taxation of costs on appeal, where objections are filed, such objections are properly heard by the clerk of the Supreme Court in the first instance, his findings being subject to review by the court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Costs, § 1006.]

3. SAME-OBJECTIONS-VERIFICATION.

Where objections to the taxation of costs, though not verified, were accompanied by a supplemental affidavit which explained the item objected to. there was a substantial compliance with Laws 1903, p. 210, requiring objections to items of costs to be verified.

4. REVIEW.

The taxation of $100 for transcribing stenographer's notes of the testimony in a case, which expense was incurred in preparing the

Or.)

case for presentation to the trial court for argument, was a matter within the trial court's discretion which could not be reviewed by the Supreme Court unless brought there by appeal. Appeal from Circuit Court, Multnomah County.

Action by Heywood Bros. & Wakefield Company, a corporation, against Doernbecher Manufacturing Company. On motion to retax costs on appeal. Motion denied.

A. King Wilson and W. T. Muir, for appellant. Cake & Cake and O. L. Price, for respondent.

MOORE, J. This is a motion assailing the sufficiency of objections to a cost bill and to strike from the files findings made thereon. The judgment herein having been reversed (86 Pac. 357), a cost bill was filed which contained a claim for the sum of $100 paid by the defendant to the official stenographer for transcribing the notes of the testimony given at the trial. The plaintiff's counsel' filed an objection to such claim on the ground that a stipulation had been entered into by the parties to the effect that the cause should be tried in this court on an abstract of record, and that the original bill of exceptions was not to be copied but that the agreement did not provide for the payment of the expenses of transcribing such notes. The objections so filed were not verified, but an affidavit, made by plaintiff's counsel, was filed at the same time, wherein it was stated that the costs of extending the notes were divided and the defendant's part thereof was the sum so paid, and that the testimony taken was used at the argument in the lower court. Based on the issues thus made, the clerk of this court made findings of fact, respecting the several items inthe cost bill, but disallowed the claim for transcribing the notes, whereupon defendant's counsel filed the motion hereinbefore mentioned and an affidavit showing that it was necessary for the trial judge to examine the extended transcript of the notes, because of the objections of the plaintiff's counsel to the bill of exceptions, and that the sum of $100 was requisite and incurred in preparing the cause for appeal.

It is contended by defendant's counsel that the clerk of this court has no authority to make findings of fact on contested items of a cost bill or to determine the matters relating thereto, which duty devolves on the court, and hence the findings complained of should be stricken from the files. The statute originally declared that costs and disbursements should be taxed and allowed by the clerk (B. & C. Comp. § 568), and also provided that, when objections were made to a claim for costs, the party seeking to recover the sums so demanded was required, within a given time, to file with the clerk a verified statement, showing the materiality and necessity of each item so objected to, whereupon the clerk was required to pass upon

the same and indorse upon, or append to, the verified statement the charges allowed or disallowed, and that the party aggrieved by the decision of the clerk in the allowance of the costs and disbursements might have such action reviewed by the judge in a summary manner, by filing a motion in the cause to have the costs and disbursements retaxed (Id. § 569). These sections have been amended so as to require the costs and disbursements to be taxed and allowed by the court or judge, but, if no objections are made to the items of the cost bill, the clerk is required to enter the same as a part of the judgment. If objections duly verified are filed, however, the court or judge must, without a jury, proceed to hear the issues involved, and in doing so may take relevant and competent testimony produced by either party and thereupon determine the matter. Each party may except to the ruling of the court or judge upon the questions of law arising at such hearing and the same shall be embodied in a bill of exceptions and an appeal may be taken from such allowance and taxation. Laws Or. 1903, p. 209. A perusal of the amendment referred to will show that its provisions are applicable only to the trial court. It may also well be doubted if the original statute was ever intended to regulate the manner of taxing costs and disbursements incurred on appeal. This court, however, has generally followed the statute thus prescribed and the practice in this respect has acquired the binding force of a tacit rule. As the consideration of causes on appeal demand the time of the court, the taxation of contested claims for items of cost and disbursements have heretofore been submitted to the clerk as a referee for his determination in the first instance, subject to review upon motion by a party aggrieved by his allowance or rejection. As this practice facilitates the dispatch of business, and as the statute now in force does not apply to this court, we shall adhere to such procedure, though no formal rule to that effect has been adopted. The findings made by the clerk upon the objections to the cost bill will, therefore, not be stricken from the files, but his action in rejecting the claim for transcribing the notes of the testimony, having been challenged by a motion, will be reviewed.

As a preliminary matter the sufficiency of the objections will first be considered. The statute declares that they must be verified. Laws Or. 1903, p. 210. The objections interposed failed technically to comply with this requirement, but there was filed at the same time a supplemental affidavit which explained the item controverted, and this, in our opinion, was a sufficient obedience to the provision of the statute. The charge of $100 for transcribing the stenographer's notes of the testimony was an expense incurred in preparing the cause for presentation to the lower court for argument, and

the taxation thereof is a matter with which this court cannot intermeddle or even review unless the question has been regularly brought here by an appeal, which has not been done in this instance. The clerk, therefore, very properly disallowed the claim, and, this being so, the motion to retax is denied.

(49 Or. 54)

MURPHY v. CITY OF SALEM. (Supreme Court of Oregon. Nov. 21, 1906.) 1. STATUTES-TITLE-PLURALITY OF SUBJECTS. Sp. Laws 1903, p. 337, was entitled "An act to amend certain specified sections "of an act entitled 'An act to incorporate the city of Salem, and to repeal an act entitled "An act to incorporate the city of Salem," approved October 15, 1862, and an act entitled "An act to incorporate the city of Salem," approved February 15, 1893, and to repeal all acts and parts of acts in conflict therewith,' approved February 17, 1899, and to amend" certain specified subdivisions of such "act as amended by" certain other sections "of an act entitled 'An act to amend [certain sections] of the *** act,' approved February 15, 1901." Acts 1903, § 1, amended the act incorporating the city of Salem by extending the territorial limits thereof so include plaintiff's land. Held, that the act of 1903 was not in violation of Const. art. 4, § 20, requiring that every act shali embrace but one subject which shall be clearly expressed in its title, etc.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44. Statutes, §§ 125, 126, 171, 204.] 2. SAME AMENDATORY ACTS.

The title to an amendatory act is sufficient if it refers to the particular section it is intended to alter, and is not violative of Const. art. 4. 20. requiring that every act shall embrace but one subject which shall be expressed in its title, unless the provisions of the amendment are such that they could not have been included in the original art as matters properly connected therewith.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Statutes. § 204.]

3. SAME-SUBSTITUTION OF WORDS.

Sp. Laws 1899, p. 921, was entitled "An act to incorporate the city of Saiem." and to repeal an act entitled "An act to incorporate the city of Salem," approved October 1862, etc., and to repeal all acts and parts of acts in conflict "herewith." Special Laws 1903, p. 337, amending the former act, in purporting to set out its title introduced the number "15" in the space between the word "October" and the number "1862" and changed the word "herewith" to "therewith." Held, that the insertion of such number and the substitution of the word, were insufficient to defeat the amendment. [Ed. Note. For cases in point, see Cent. Dig. vol. 44. Statutes. § 205.]

4. MUNICIPAL CORPORATIONS-INCORPORATION ACT ALTERATION-POWERS OF TAXATION— CREDIT.

Laws 1903, p. 337, § 23, amending Salem incorporation law, provides that the common council shall not create any debt or liability provided that at the end of each year an estimate should be made of the actual revenues to be derived from all sources, and from the total of that estimate the total of fixed charges should be deducted, and the disbursements of the city council should be restricted to the balance. That no debt should be contracted in excess of the estimated revenues, except in case of an emergency, etc.. and that the indebtedness of the city should not exceed $20,000 except as provided by section 6, which authorizes the con

tracting of indebtedness for the purpose of obtaining control of public utilities. Held, that such act was not in violation of Const. art. 11, $ 5, providing that acts for the incorporation of cities and towns shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.

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

Suit by J. E. Murphy against the city of Salem. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

W. H. Holmes and M. E. Pogue, for appellant. John H. McNary and Tilmon Ford, for respondent.

MOORE, J. This is a suit by J. E. Murphy against Charles Lembcke, John W. Roland, and W. J. Culver, as assessor, clerk, and sheriff, respectively, of Marion county, and also against the city of Salem, to enjoin the assessment of plaintiff's real property and the levy thereon, or the collection therefrom of any municipal tax, and involves the constitutionality of an act of the legislative assembly (Sp. Laws Or. 1903, p. 337), attempting to amend the charter of that city so as to include within its boundaries plaintiff's premises, containing about 23 acres of farm land and having thereon a dwelling house, barn, outbuildings, and a tile factory. The cause was tried on an agreed statement of facts, resulting in a decree dismissing the suit, and plaintiff appeals.

It is maintained by his counsel that the title of the act referred to contravenes section 20 of article 4 of the organic law of the state, in that it is insufficient to support the provisions of the attempted enactment. The act complained of is entitled as follows: "An act to amend sections two (2), five (5), six (6). eight (8), ten (10), fifteen (15), twentythree (23), twenty-five (25), and seventy-four (74), of an act entitled 'An act to incorporate the city of Salem, and to repeal an act entitled "An act to incorporate the city of Salem." approved October 15, 1862, and an act entitled "An act to incorporate the city of Salem," approved February 15, 1893, and to repeal all acts and parts of acts in conflict therewith,' approved February 17, 1899; and to amend subdivisions nine (9) and fourteen (14) of section six (6) and sections five (5), fifteen (15), twenty-five (25), and seventy-four (74) of said act as amended by sections one (1), two (2), three (3), four (4), five (5), and ten (10), of an act entitled 'An act to amend section five (5), subdivisions nine (9) and fourteen (14) of section six (6), and sections fifteen (15), twenty-five (25), twenty-seven 27), thirtyone (31), forty-seven (47), sixty-one (61), and seventy-four (74) of the aforesaid act,' approved February 15, 1901." The clause of the fundamental law so claimed to have been infringed is published as follows: "Every act shall embrace but one subject, and matters properly connected therewith, which subjects shall be expressed in the title. But if any

subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." Const. Or., art. 4, § 20.

The act under consideration, so far as deemed material, is as follows:

Section 1. That section two (2) of the said act incorporating the said city of Salem, Oregon, be amended so as to read as follows: Sec. 2. The limits of the said city shall be as follows' "-setting out the boundaries of the city as given in the act of February 17, 1899 (Sp. Laws Or. 1899, p. 921). "Provided, that on and after the first day of October, 1903, the limits of said city shall be as follows"—particularly describing the boundaries so as to include, with other premises, plaintiff's land.

A

It is stated in the brief of plaintiff's counsel that the framers of the Constitution, in the clause thereof hereinbefore quoted, having selected the word "subjects," which must be expressed in the title of an act, the plural form thus adopted necessitated a declaration in the title in question that the act, incorporating the city of Salem, was not only to be amended, but that the boundaries of the municipality were also to be enlarged. very ingenious argument, founded on the use of the word "subjects" was rendered ineffectual at the trial by an examination of the enrolled copy of the Constitution which discloses that the singular form only of that word is there used, and that a mistake has been made in publishing this clause of the organic law. It will be remembered that the author of the act now under consideration in framing the bill set out in section 2 thereof the entire section of the same number as it then existed (Sp. Laws Or. 1899, p. 921), and also displayed the section as it was to be amended. The degree of care n.anifested in thus presenting the original section and the proposed amendment in the bill evinces an abundance of caution that is not usually exercised in preparing measures for enactment.

In Montgomery v. State, 107 Ala. 372, 18 South. 157, in construing clauses of a Constitution which provided that "each law shall contain but one subject which shall be clearly expressed in the title," and also required an amended law to be "re-enacted and published at length," it was held that setting out in an act as altered, without reciting the old law as it stood before the amendment was a sufficient compliance with the requirements of the fundamental law. The manner of stating the amendment of the boundaries, set out in the act of February 7, 1903, is not material to a decision herein, and is mentioned only because of a criticism thereof in plaintiff's briefs. Unusual care seems to have been exercised in this respect, and as the organic law declares that "no act shall ever be revised or amended by mere reference to its title, but the act revised or section amend

ed shall be set forth and published at full length" (Const. Or. art. 4, § 22), the amendment strictly complies with this requirement.

Thus,

The title of an amendatory act is sufficient if it refers to the particular section it is intended to alter and is not violative of article 4, section 20, of the fundamental law of the state, unless the provisions of the amendment are such as could not have been included in the original act as matters properly connected therewith. David v. Portland Water Committee, 14 Or. 98, 12 Pac. 174; State v. Phenline, 16 Or. 107, 17 Pac. 572; Ex parte Howe, 26 Or. 181, 37 Pac. 536; State v. Robinson, 32 Or. 43, 48 Pac. 357. Any amendment that introduces new subject-matter ter into an act is not germane thereto, and could not have been included in the original statute. 14 Am. & Eng. Enc. Law (2d Ed.) 1004, note 4; 20 Cyc. 1187, note 97. under a Constitution which provided that "each law shall contain but one subject which shall be clearly expressed in the title," an act regulating the trial of misdemeanors cannot, by a mere reference to the title, be amended so as to provide for the trial of felonies. Harper v. State. 109 Ala. 28, 19 South. 857. So, too, an act regulating the taking and catching of fish in inland lakes, cannot be amended, unless the title is disclosed, so as to include other waters than such lakes. Fish v. Stockdale, 111 Mich. 46, 69 N. W. 92. Before resorting to this rule, to determine whether or not the amendment complained of in section 2 of the act of February 17, 1903, introduces new subjectmatter into the original act, it becomes necessary to consider the title of the amendatory statute.

The title of the act attempted to be amended is as follows: "An act to incorporate the city of Salem, and to repeal an act entitled An act to incorporate the city of Salem,' approved October, 1862, and an act entitled 'An act to incorporate the city of Salem,' approved February 15, 1893, and to repeal all acts and parts of acts in conflict herewith." Sp. Laws Or. 1899, p. 921. A comparison of this title with that of the amendatory act (Sp. Laws Or. 1903, p. 337). as hereinbefore set out, will show that the latter title, in purporting to detail the former, introduces the number "15" in the space between the word "October," and the number "1862." and also changes the last word quoted from "herewith" to "therewith." It is contended by plaintiff's counsel in argument that the substitution of the latter word for the former was such an error as to defeat the amendment. Statutes, like all other writings, are not to be overthrown on account of errors, mistakes, or omissions therein, if the intention of the legislative assembly can be collected from the entire language used. Endlich, Int. of Statutes, § 302; Sutherland, Statutory Construction, § 260; State v. Robinson, 32 Or. 43, 48 Pac. 357; School Directors v. School Directors, 73 Ill. 249.