Opinion of the Court-Kelly, C. J.

that these monthly rents so received by the respondent from the lessees should not be allowed as credits in favor of the appellants because they have not been pleaded as a counter claim, is untenable. A payment made on a note or other evidence of indebtedness is not a cause of action or of suit which may be pleaded as a counter claim. It is rather the extinguishment of a cause of action or suit by the adverse party, to the extent of the payment so made; and evidence of such payment may be offered on the trial under the general allegation, that the demand of such adverse party has been paid. We therefore hold that the appellants are entitled to a credit for the rents of the mortgaged premises under the lease of the twenty-sixth of January, 1876, "less the cost of the improvements made thereon which were a permanent part of the house, and actually necessary for the convenience, profit, and protection of the premises," as specified in the lease. The rents received by the respondent from the twenty-first of February, 1876, to the twenty-first of February, 1878, amounted to six hundred dollars, from which should be deducted two hundred and twenty-nine dollars and fifty-six cents for permanent improvements on the mortgaged premises; one hundred and eleven dollars and fifty cents for insurance paid by the lessees, and thirty-three dollars for rent paid to appellant, James Gore; in all, three hundred and seventy-four dollars and sixteen cents, leaving two hundred and twenty-five dollars and ninty-four cents, and interest thereon to be applied in part payment of the mortgage.

A statement of the accounts between the parties in accordance with the views herein expressed, is annexed to this opinion, by which it appears that there is now due upon the mortgage the sum of four hundred and eighty-nine dollars and twenty-four cents, and a decree will be entered accordingly for that sum.

[The statement of accounts referred to in the opinion is not necessary to an understanding of the points decided. It is therefore omitted.-REPORTER.]

Statement of Facts.

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GEORGE ALLEN, APPELLANT, v. EDWARD HIRSCH,
STATE TREASURER, RESPONDENT.

CONSTITUTIONAL ACT-WAGON ROAD ACT NOT LOCAL OR SPECIAL-The acts entitled An Act to provide for the construction of a road in Grant and Baker counties, to be known as the Eastern Oregon and Winnemucca Road," approved October 19, 1872, and “An Act to provide for the construction of a wagon road up the south bank of the Columbia river from near the mouth of Sandy, in Multnomah county, to the Dalles in Wasco county," approved October 23, 1872, are not in conflict with article 4, sec. 23, subd. 7, of the constitution, which declares that "the legisla tive assembly shall not pass special or local laws in any of the following enumerated cases, that is to say, *** for laying, opening, and working on highways, and for the election or appointment of supervisors." The said acts of the legislative assembly are public laws, and not special or local laws, within the meaning of that clause in the constitution.

APPEAL from Marion County.

The case is mandamus to compel the payment of certain warrants drawn by the secretary of state upon the state treasury. The appellant filed in the circuit court his petition for a writ of mandamus, in which he referred to the acts of the legislative assembly of October 23, 1872, and October 21, 1876, providing for the issuing of warrants on account of the road commonly known as "The Dalles and Sandy Wagon Road, and to the act of October 19, 1872, providing for issuing warrants on account of the "Eastern Oregon and Winnemucca Road;" and recites so much of each of said acts as relates to the appropriation of moneys to meet the warrants, the funds out of which such warrants should be payable, and the proceedings necessary to authorize the secretary of state to draw the warrants. The petition then states particularly and at length such facts as show that on the twenty-fourth day of May, 1875, a warrant was drawn in accordance with the provisions of said act of October 23, 1872, by the secretary of state, for one thousand dollars, payable to the order of the chairman of the board of commissioners created by said last named act, out of the funds applicable thereto under said act; that on said twentyfourth day of May, 1875, said warrant was presented to the state treasurer for payment, but was not paid for want of

Statement of Facts.

funds in the hands of the treasurer applicable thereto; that since that time, and prior to the twenty-seventh day of August, 1879, the said warrant had been indorsed by the said chairman of the board of commissioners, and the petitioner had become the holder thereof; that before said twentyseventh day of August, 1879, sufficient moneys belonging to said funds had been received into the state treasury to pay said warrant; and that on that day the petitioner presented said warrant to the defendant, who then was and still is state treasurer, and demanded payment thereof, but payment was refused. This is the first count of the petition.

The petition then proceeds, with the same particularity, to set forth the drawing of a warrant by the secretary of state, on the thirteenth day of September, 1877, in accordance with said act of October 21, 1876, for one thousand dollars; the presentation of that warrant to the state treasurer on the day it was drawn; its non-payment for want of applicable funds; the subsequent transfer of the warrant to the petitioner; the receipt into the treasury of funds sufficient to pay it; the presentation and demand of payment on the twenty-seventh day of August, 1879; and the refusal of defendant, as treasurer, to pay it.

In the same manner the petition states the drawing of a warrant, by the secretary of state, on the fifteenth day of May, 1873, upon the treasury, in accordance with the said act of October 19, 1872, for one thousand nine hundred and ninety-six dollars; its presentation to the treasurer on the day it was drawn, and its non-payment for want of applicable funds; its subsequent transfer to the petitioner; that there was on the thirty-first day of October, 1879, sufficient funds in the treasury applicable to its payment; and that on that day it was presented by petitioner to the defendant as treasurer, and payment was demanded and refused.

Upon these allegations the petitioner prayed writ of mandamus to compel the defendant, as treasurer, to pay said several warrants, and the accrued interest thereon. The alternative writ was issued, commanding the defendant to pay the warrants, or show cause why he had not done so. On the return day, the defendant demurred to the petition,

Argument for Appellant.

on the ground of insufficiency; and the circuit judge, without argument, and upon the understanding that the case was to go to the supreme court to test the constitutionality of the several acts of the legislative assembly, under which the warrants were drawn, made a pro forma decision sustaining the demurrer and dismissing the cause at petitioner's cost. The petitioner appeals to this court.

W. Lair Hill, for appellant:

* * *

For

Subdivision 7 of section 23 of article 4 of the constitution of the state provides as follows: "The legislative assembly shall not pass special or local laws in any of the following enumerated cases, viz: laying, opening, and working on highways, and for the election or appointment of supervisors." It is contended that the several acts referred to in the petition are special or local laws, and by reason of their subject-matter are prohibited by the constitutional provision just quoted; and that therefore the warrants drawn under those acts are void. On the surface of the case it is seen, that in order to reach a decision as to the right of the petitioner to the relief demanded, the court must consider and pass upon the questions:

1. Are the acts in question special or local laws within the meaning of the constitution?

2. If these acts are special or local laws, are the warrants drawn in pursuance of them void?

Are the acts in question special or local laws within the meaning of the constitution? This is primarily a question of definitions. It must first be ascertained what is a special or local law; in other words, what are the definitions of the terms special and local, as used in the constitution; and then it must be determined by examination of the acts in question, whether they fall within either of these definitions. It will hardly be contended that these acts fall within the definition of local laws, as there can hardly be any difference of opinion among lawyers upon that subject. If, however, it should be contended on the part of the respondent, that they are local laws, the error of that position will be per

Argument for Appellant.

ceived upon a moment's consideration of the matter. A local law is a law which affects only the inhabitants of a particular district. It is operative generally within certain geographical boundaries, but inoperative outside of those boundaries. It is general in character, but local in its application. (1 Bl. Com. 74; Bouv. Dict., in verb. "Custom;" People v. Supervisors of Chautauqua, 43 N. Y. 10.) Neither of the three acts under which these warrants were drawn comes within this definition. In People v. Supervisors, just cited, the fact that the money to be raised was to be used in paying for a local public work, was held not to make the law local, and that is the only feature of the acts now under examination which even suggests the idea of their being local laws.

Are these acts special laws within the meaning of the constitution? The answer to this question depends on the question, What is a special law, as the term is employed in the constitution? And unless, by the constitution itself, or by the historical circumstances under which it was adopted, it is apparent that the word special, as applied to a law, was intended by the framers of that instrument to have a meaning different from its technical or common law meaning, that technical or common law definition must be taken as the true meaning in the constitution. This is a settled canon of constitutional interpretation. (Cooley on Const. Lim. 59-61.) Applying this rule of interpretation, what is meant by "special law" in the constitution? It had, and still has, a well-known common law meaning. When applied to statutes, the word special is a technical word, and is synonomous with "private," which was formerly the more frequent term. A special or private statute is a statute which affects only certain specified individuals or private concerns. It is the opposite of a public or general law, which applies to all persons who may happen. to be so situated as to fall within the general purview of operation. (1 Bl. Com. 85; Bouv. Dict., in verb. "Statute;" Calking v. Baldwin, 4 Wend. 668.) Examine the acts in question, bearing in mind this common law definition of a special law. The act of October 23, 1872, condensed into