Chapter 432 Vital Statistics...

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Chapter 432

Vital Statistics

432.015

ATTY. GEN. OPINIONS: Availability of death records toinspection, 1960 -62, p 229.

432.035

ATTY. GEN. OPINIONS: Certification and fees for certifying records, 1960 -62, p 303.

432.040

ATTY. GEN. OPINIONS: Certification and fees for certify-

ing records, 1960 -62, p 303.

432.055

ATTY. GEN. OPINIONS: Certification and fees for certify-

ing records, 1960 -62, p 303.

432. 105


432. 115


432. 120

ATTY. GEN. OPINIONS: Meaning of "court of competentjurisdiction," 1942 -44, p 191: availability of death recordsto inspection, 1960 -62, p 229.

432. 125


432. 130


C, IVAR

ATTY. GEN. OPINIONS: Filing delayed birth certificates, 1940 -42, p 461.

432.255

ATTY. GEN. OPINIONS: An alien seeking registration ofhis birth by petitioning the circuit court pursuant to thissection, 1942 -44, p 190; minor petitioning for a delayed birthcertificate appearing by guardian or next friend, 1942114, p 280.

432.270

ATTY. GEN. OPINIONS: Type and quantum of evidence

required as matter of sound discretion of court, 1942 -44,

p 184; district attorneys representing private clients in proceedings in circuit court for birth certificates, 1942 -44, p 184; county courts collecting a trial fee for a hearing held underthis Act, 1942 -44, p 208; five -day period before hearingprovided in this section as a limitation upon the court' s

jurisdiction, 1942 -44, p 222.

432.275

ATTY. GEN. OPINIONS: A person as required to appear

personally or by attorney in justice court procedure forregistering birth, 1942 -44, p 175.

432.280

CASE CITATIONS: Louie Hoy Gay v. Dulles, ( 1957) 248F2d 421.

ATTY. GEN. OPINIONS: Recording order for registrationof birth certificate, 1948 -50, p 236.

CBiAllh

NOTES OF DECISIONS

Under former similar statute death certificates were admissible as evidence in controversies between private par-

ties under ORS 43.380. Seater v. Penn. Mut. Life Ins. Co., 1945) 176 Or 542, 156 P2d 386, 159' P2d 826.

432.420

ATTY. GEN. OPINIONS: Meaning of " court of competentjurisdiction," 1942. 44, p 191.

401

SUPERSEDED

Chapter 433

Disease Control and Sanitation Generally

433.035

ATTY. GEN. OPINIONS: When a local health officer mayrequire a person to submit to an examination, or isolate

such persons in case of refusal to submit, 1936 -38, p 214; consent of parents to physical • examination of child in tem-

porary custody of juvenile court, 1956 -58, p 168; consentof parents or guardian to examination of minor, 1958 -60,

p 207.

433. 105

ATTY. GEN. OPINIONS: Authority of State Board of Healthto have tubercular person removed to the state tuberculosishospital from his home and to isolate such person, 1952 -54,

p 78.

433. 130

ATTY. GEN. OPINIONS: Authority of State Board of Healthto order confinement of diseased person to preserve public

health, 1952 -54, p 78.

433. 140

ATTY. GEN. OPINIONS: Payment for supplies furnished

to persons quarantined by city health officer, 1928 -30, p 525; payment for care of indigent persons quarantined in countyhospital, 194042, p 328.

NOTES OF DECISIONS

A school district has implied power to determine byphysical examination whether an applicant for a teachingposition is afflicted with a communicable disease. School

Dist. 1 v. Teachers' Retirement Fund Assn., ( 1939) 163 Or

103, 95 P2d 720, 96 P2d 419.

kMK 9

ATTY. GEN. OPINIONS: Authority of chiropractor to certify that school children and other persons are free fromcontagious and infectious diseases, 1944 -46, p 473, 1966 -68, p 153; certification of pupil' s health by chiropractic physician, ( 1970) Vol 35, p 141.

433.265

NOTES OF DECISIONS

The closing of the schools to prevent the spreading ofinfluenza rests in the sound discretion of the school board. Crane v. Sch. Dist. 14, ( 1920) 95 Or 644, 188 P 712.

The district has implied power to determine by physicalexamination whether an applicant is afflicted with anycommunicable disease or is incapable of discharging his orher duties as a teacher. School Dist. 1 v. Teachers' Retire- ment Fund Assn., ( 1939) 163 Or 103, 95 P2d 720, 96 P2d419.

ATTY. GEN. OPINIONS: Exclusion of pupil from public

school because pupil is afflicted with epilepsy, 1920 -22, p89; liability of school district to pay salaries of teachersduring time school was closed on account of contagiousdisease, 1920 -22, pp 556, 557; admission of pupils to schoolupon certificate of county health officer as compulsory, 1926 -28, p 340.

M

ATTY. GEN. OPINIONS: Authority of chiropractors andnaturopaths to take blood for test, 1964 -66, p 290.

111l

ATTY. GEN. OPINIONS: Penalty for maintaining uncleanslaughterhouse, 1948 -50, p 68.

433.990

ATTY. GEN. OPINIONS: Requiring physical examinations ATTY. GEN. OPINIONS: Penalty for maintaining uncleanfor students at the expense of parents, 1954 -56, p 17. 1 slaughterhouse, 1948 -50, p 68.

402

SUPERSEDED

Chapter 434

Venereal Diseases

434. 100

ATTY. GEN. OPINIONS: Physicians to whom service of

board of health laboratory is available, 1938 -40, p 288.

434. 160

ATTY. GEN. OPINIONS: Expense of administering healthlaws as municipal obligation, 1940 -42, p 233.

CKNId11

ATTY. GEN. OPINIONS: The superintendent of the state

boys school as required to notify the State Board of Healthregarding inmates afflicted with venereal disease and tootherwise comply with this chapter, 194446, p 233.

434.250

NOTES OF DECISIONS

This section is not unconstitutional as an invalid exercise

of the police power or invalid under Ore. Const. Art IV,

20, providing that every Act shall embrace but one subject. State v. Hollinshead, ( 1915) 77 Or 473, 151 P 710.

403

SUPERSEDED

Chapter 435

Birth Control; Abortions

Chapter 435

ATTY. GEN. OPINIONS: Application of chapter to contra-

ceptive drugs sold only by prescription, 1964 -66, p 364.

435.010

ATTY. GEN. OPINIONS: Sale of prophylactics to members

of Civilian Conservation Corps camps as violation of stat-

ute, 1936 -38, p 475; advertising pamphlet when not inclosedin original package, 1938 -40, p 233; limitations on sale anddistribution, 1942 -44, p 19; advertising contraceptives in mailorder catalog, 194648, p 219; application of section to con- traceptive drugs sold only by prescription, 1964 -66, p 364.

435.020

ATTY. GEN. OPINIONS: Application of section to contra-

ceptive drugs sold only by prescription, 1964 -66, p 364.

435.060

ATTY. GEN. OPINIONS: Procedure for seizure, 1950 -52, p366.

435. 110

ATTY. GEN. OPINIONS: Legality of advertising pamphlets, 1938 -40, p 233; advertising contraceptives in mail ordercatalog, 1946 -48, p 219.

435. 120

ATTY. GEN. OPINIONS: Proper disposition of license fees

and fines collected, 1934 -36, p 739.

435.305

ATTY. GEN. OPINIONS: Consent sterilization, 1966 -68, p626; sterilization of inmate or patient in state institution,

1968) Vol 34, p 338.

435.405 to 435.495

LAW REVIEW CITATIONS: 49 OLR 302 -321; 6 WLJ 349- 356; 2 EL 225 -237.

435.415

NOTES OF DECISIONS

Where the defendant is not a licensed physician nor

assisting a licensed physician, the indictment need not negate the possibility that the abortion may have been lawful. State v. Schulman, ( 1971) 92 Or App Adv Sh 1505, 485 P2d1252, Sup Ct review denied.

ATTY. GEN. OPINIONS: Validity of residency requirement, 1970) Vol 35, p 219.

435.435

LAW REVIEW CITATIONS: 49 OLR 256, 258.

435.455

NOTES OF DECISIONS1. Under former similar statute

The burden of proof was on the state to prove that the

abortion was not necessary to preserve the life of themother. State v. Clements, ( 1887) 15 Or 237, 14 P 410; State

v. Elliott, ( 1955) 206 Or 82, 289 P2d 1075.

The term " pregnant with a child "• designated the fetus

throughout the period of gestation. State v. Atwood, (1909)

54 Or 526, 102 P 295, 104 P 195, 21 Ann Cas 516; State v.

Ausplund, ( 1917) 86 Or 121, 167 P 1019.

It was immaterial whether deceased, prior to the com-

mission of the crime attempted the abortion herself or not, unless such attempt contributed to her death. State v. Glass,

1873) 5 Or 73.

An instruction assuming as a fact criminal intimacy ofdefendant and the deceased was error where such a relationwas not admitted. State v. Bowker, ( 1894) 26 Or 309, 38

P 124.

The deceased' s dying declarations, tending to show thatthe means employed by accused to procure a miscarriagewere unnecessary to preserve her life, were admissible. State v. Fuller, ( 1908) 52 Or 42, 96 P 456.

Dying declarations of the deceased were admissible whenher death was an essential element of the crime. Id.

The term " the death of such child" meant the death of

the fetus either before or after quickening. State v. Atwood, 1909) 54 Or 526, 102 P 295, 104 P 195, 21 Ann Cas 516.

It was error to admit prosecutrix' s testimony as to otherabortions previously performed upon her by the defendant. State v. Willson, ( 1925) 113 Or 450, 230 P 810, 233 P 259, 39 ALR 84.

The woman operated upon in an abortion case was not

an accomplice of accused. Id.

Notwithstanding the provisions of the former statute adoctor was not guilty of an unlawful act if he compliedwith the statutory conditions. State v. Buck, ( 1953) 200 Or87, 262 P2d 495.

Unless person was charged as a physician in the indict-

ment, the fact that the abortion was performed under theMedical Practice Act was a matter of defense. State v.

Hawkins, ( 1970) 255 Or 39, 463 P2d 858.

This section, as applied to an unlicensed person, was

constitutional under U.S. Const., Am. 14, § 1. State v. Polk,

1971) 5 Or App 605, 485 P2d 1241.

FURTHER CITATIONS: Belt v. Spaulding, ( 1888) 17 Or 130, 20 P 827; Bd. of Medical Examiners v. Eisen, ( 1912) 61 Or

492, 123 P 52; State v. Farnam, ( 1916) 82 Or 211, 161 P 417,

Ann Cas 1918A, 318; State v. Dewey, ( 1956) 206 Or 496, 292P2d 799; State v. Beeson, ( 1967) 248 Or 411, 434 P2d 460.

ATTY. GEN. OPINIONS: Liability of performing abortionwithout consent of husband, ( 1969) Vol 34, p 574.

404

SUPERSEDED

LAW REVIEW CITATIONS: 34 OLR 192; 46 OLR 212, 214.

01111

435.455

SUPERSEDED

Chapter 436

Sterilization for Social Protection

Chapter 436

ATTY. GEN. OPINIONS: Constitutionality of eugenic sterilization laws, 1960 -62, p 139; allowing of mandatory sterilization, 1966 -68, p 626.

LAW REVIEW CITATIONS: 49 OLR 247.

436.020

ATTY. GEN. OPINIONS: Membership of State Board ofEugenics, 1960 -62, p 139.

436.025

ATTY. GEN. OPINIONS: Consent sterilization, 1966 -68, p626.

436.041

ATTY. GEN. OPINIONS: Constitutionality of eugenic sterilization laws, 1960 -62, p 139.

436.050

ATTY. GEN. OPINIONS: Power of board of eugenics to

sanction or order operation for sterilization persons on

border line of mental deficiency, 1922 -24, p 519; right personally to appear before board by person under examinationand investigation, 1922 -24, p 555; nature of proceedingsrequired under statute, 1924 -26, p 595; liability of Board ofControl, executives, and physicians for malpractice and

negligence, 1940 -42, p 286; validity of board delegating tosuperintendent of state hospital authority to perform sterilization operation, 1946 -48, p 42; persons subject to sterilization, 1958 -60, p 222; constitutionality of eugenic sterilization laws, 1960 -62, p 139; consent sterilization, 1966 -68, p626.

436.070

ATTY. GEN. OPINIONS: Constitutionality of eugenic sterilization laws, 1960 -62, p 139; consent sterilization, 1966 -68, p 626; standards for denial of medical certificate requiredfor marriage license, ( 1970) Vol 35, p 17.

436.090

ATTY. GEN. OPINIONS: Necessity that copy of order forsterilization of inmate of school for girls be served upon

non - resident father, 1934 -36, p 170; constitutionality of eugenic sterilization laws, 1960 -62, p 139.

436. 100

ATTY. GEN. OPINIONS: Authority of board of eugenicsupon written consent of mother of incompetent woman

living apart from her husband, to perform operation, 1926- 28, p 24; necessity for consent of non - resident father, 1934- 36, p 170; necessity for appointment of guardian for inmatewho is mentally diseased, 1934 -36, p 170; necessity for consent of non - resident relative to sterilization of inmate of

the school for girls, 1934 -36, p 325; when consent of husbandand father not required, 1938 -40, p 13; sterilization of inmateover 21 years of age without consent of parents or husband,

1938 -40, p 407; authority of superintendent of state hospitalto sterilize patients without an order of the board, 1946 -48,

p 53; constitutionality of eugenic sterilization laws, 1960 -62, p 139.


436. 110

ATTY. GEN. OPINIONS: Constitutionality of eugenic sterilization laws, 1960 -62, p 139.

406

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SUPERSEDED

Chapter 437

Tuberculosis

437.030

ATTY. GEN. OPINIONS: Authority of State Board of Healthto have tubercular person removed to the state tuberculosis

hospital from his home and to isolate such person, 1952 -54,

p 78; authority of Superintendent of Oregon State Hospitalto compel patient to submit to beneficial operation, 1960 -62,

p 58.

437. 140

ATTY. GEN. OPINIONS: Superintendent as well educated

physician, 1948 -50, p 334; power of superintendent to ad- judge fitness of patient for release, 1952 -54, p 78.

437. 150

ATTY. GEN. OPINIONS: Residence in CCC camps, or in

private hospitals, for treatment for tuberculosis, as qualifying one for admission to state tuberculosis hospital, 1934 -36, p 323; rig_ ht of person suffering from tuberculosis, not beinga public charge, to establish in Oregon for the purpose of

admission to the state tuberculosis hospital, 1934 -36, p 323.

407

437. 160

A=. GEN. OPINIONS: Eligibility of patient in Iowa statesanitarium whose parents live in Oregon to enter Oregon

hospital, 192426, p 637; sufficiency of evidence as to residence in state, 193436, p 742; authority of superintendentof hospital to waive the statutory requirements for admission, 1944 -46, p 256.

437.990

ATTY. GEN. OPINIONS: Violation of isolation and quaran-

tine subject to criminal punishment, 1952 -54, p 78.

SUPERSEDED

Chapter 438

Clinical Laboratories

458.110 to 436.180 324; distinguishing between diagnosis and technical performance of laboratory tests, 1964 -66, p 353.

ATTY. GEN. OPINIONS: Pathologists licensed under the

Medical Practice Act as affected by this Act, 1950 -52, p 411; 458.450

standards for licensing laboratories, 1956 -58, p 139; medicallaboratory procedures as practice of medicine, 1962 -64, p ATPY. GEN. OPINIONS: Respective authority of - State

Board' of Health and advisory committee on regulation oflaboratories, 1938110, p 178.

l JJ

408

SUPERSEDED

Chapter 440

County Hospitals and Nursing Homes

440.010

CASE CITATIONS: Multnomah County v. Luihn, (1947) 180Or 528, 178 P2d 159.

ATTY. GEN. OPINIONS: Regulations as to who may practice in county hospital and fees therefor, 193840, p 297; authority of county court ' to lease or purchase hospitalfacilities, 194244, p 76; care of indigents afflicted with communicable disease paid by county public welfare commission, 1940 -42, p 328; authority of county court to build, finance, and operate hospital, 1946 -48, p 61; authority ofcounty court to lease hospital to others and accept gifts, 1946 -48, p 141; medication for county welfare patients notauthorized by State Public Welfare Commission, 1958 -60, p 151.

440.030

ATTY. GEN. OPINIONS: Obtaining funds for hospital careof indigents, 1960 -62, p 219.

440.110

ATI'Y. GEN. OPINIONS: Power of county court to levytaxes to build and maintain county hospital, 1948 -50, p 102; authority of county courts to operate hospital, 1950 -52, p106.

440. 130

ATTY. GEN. OPINIONS: Delegation of condemnation

power, 1956 -58, p 157.

440.150

ATTY. GEN. OPINIONS: Legislator as member of countyhospital board, 1952 -54, p 204.

440. 180

ATTY. GEN. OPINIONS: Medication for county welfarepatients not authorized by State Public Welfare Commis- sion, 1958 -60, p 151.

409

SUPERSEDED

Chapter 441

Hospitals Generally

Chapter 441

ATTY. GEN. OPINIONS: Hospital as institution, 1960 -62,

p 387; nursing care facility as part of a licensed hospital, 1962 -64, p 492.

441.005 to 441. 060

ATTY. GEN. OPINIONS: Nursing care facility as part ofa licensed hospital, 1962 -64, p 492; authority of board todeny license for hospital because of lack of need, 1966 -68, p 148; authority of a hospital district to operate a nursinghome facility, 1966 -68, p 199; construing board authority, 1969) Vol 34, p 564.

441. 005

ATTY. GEN. OPINIONS: Hospital defined by type and degree of care, 1962 -64, p 492; authority of a hospital districtto operate a nursing home facility, 1966 -68, p 199.


441. 0110

ATTY. GEN. OPINIONS: Right of chiropractors to practice

in tax supported hospitals, 1950 -52, p 16; nursing care facility as part of a licensed hospital, 1962 -64, p 492; thissection as grant of power, 1966 -68, p 148; authority of StateBoard of Health to regulate kinds of operations, ( 1969) Vol

34, p 564.

441. 015

ATTY. GEN. OPINIONS: License as prerequisite to estab-

lishment of hospital, 1966 -68, p 148.

441. 020

ATTY. GEN. OPINIONS: Requirement of reasonableness in

this section, 1966 -68, p 148.

441. 022

CASE CITATIONS: Dungan v. Travelers Ins. Co., ( 1970)

257 Or 511, 476 P2d 915.

ATTY. GEN. OPINIONS: Authority of board to regulatekind of operations, ( 1969) Vol 34, p 564.

441. 025

ATTY. GEN. OPINIONS: Inspection by fire marshal, 1960- 62, p 387.

441.055

ATTY. GEN. OPINIONS: Standards and rule- making pow-

ers of the board, 1966 -68, p 148; authority of board to regulate kind of operations, ( 1969) Vol 34, p 564.

441. 125 to 441. 150

ATTY. GEN. OPINIONS: Authority of board to deny licensefor hospital because of lack of need, 1966 -68, p 148; constitutionality of granting funds for a facility operated by areligious sect, 1966 -68, p 351.

441. 195 to 441. 375

ATTY. GEN. OPINIONS: Authority of a hospital districtto operate a nursing home facility, 1966 -68, p 199.

LAW REVIEW CITATIONS: 4 WW 482 -503.

441. 195

NOTES OF DECISIONS

The 90-day residential requirement provided by a formerstatute was held constitutional as a reasonable legislativeregulation. Wright v. Blue Mountain Hosp. Dist., (1958) 214

Or 141, 328 P2d 314.

441. 210

NOTES OF DECISIONSUnder former similar statute, where district was incorpo-

rated without objection, court refused to declare proceed-

ings void on subsequent allegation that small amount of

property was improperly included. Waterman v. So. CoosHosp. Dist., ( 1958) 213 Or 654, 326 P2d 1037.

ATTY. GEN. OPINIONS: District formation by election andincorporation, 1948 -50, p 352; authority of county clerk toissue voters' pamphlets for hospital district election, 1948-

50, p 365; right of chiropractors to practice in tax supportedhospitals, 1950 -52, p 16; authority of a hospital district tooperate a nursing home facility, 1966 -68, p 199.

441. 280

ATTY. GEN. OPINIONS: Implied authority of board to issuewarrants after tax levy, 1950 -52, p 370; interest of director -elect in hospital insurance contract as disqualification

for office, 1966 -68, p 185.

441.285

ATTY. GEN. OPINIONS: Effect of failure to give notice of

election to fill a vacancy, 1964 -66, p 96.

441. 295

ATTY. GEN. OPINIONS: Interest of director -elect in hospi-

tal insurance contract as disqualification for office, 1966 -68, p 185.

410

SUPERSEDED

441.305

ATTY. GEN. OPINIONS: Effect of failure to give notice of

election to fill a vacancy, 196466, p 96.

441. 320

ATTY. GEN. OPINIONS: Registration of hospital withCouncil on Medical Education and Hospitals; use of hospi-

tals by osteopathic and chiropractic physicians and theirpatients, 1950 -52, pp 3, 16; power of hospital district to issuewarrants in anticipation of receipts from tax collections,

1950 -52, p 370; authority of a hospital district to operatea nursing home facility, 1966 -68, p 199.

441. 335

ATTY. GEN. OPINIONS: Use of hospital by all inhabitantsof district, 1950 -52, p 3; implied authority of board to issuewarrants after tax levy, 1950 -52, p 370.

411

441. 510

441.360

ATTY. GEN. OPINIONS: When hospital district can levytaxes for maintenance and operation, 1948 -50, p 352; useof hospital by all inhabitants of district, 1950 -52, p 3; impliedauthority of board to issue warrants after tax levy, 1950 -52, p 370; validity of tax base in excess of constitutional limitation where previous tax levy was erroneously computed atless amount than authorized, 1952 -54, p 123.

wl:

ATTY. GEN. OPINIONS: Implied authority of board to issuewarrants after tax levy, 1950 -52, p 370.

441. 510

NOTES OF DECISIONS

This section was constitutional under Ore. Const. Art.

IV, §20, for it was germane to the title of the Act of whichit was a part. Nielson v. Bryson, ( 1970) 256 Or 179, 477 P2d

714.

SUPERSEDED

Chapter 442

Homes -for the Aged and Infirm

Chapter 442

ATTY. GEN. OPINIONS: Applicability of this chapter toinstitutions not maintained for compensation-, or charge,

1948 -50, p 272.

442,610

ATI'Y. GEN. OPINIONS: Applicability of this chapter toinstitutions not maintained for compensation or charge,

1948 -50, p 272.

442.030

AT171. GEN. OPINIONS: Inspection by fire marshal, 1960- 62, p 387.

412

442.050

ATI'Y. GEN. OPINIONS: Corporation caring for aged persons as subject to the licensing requirements of this chapter, 1942 -44, p 267; license to operate an old people' s home asrequired if any such home cares for " five or more personsof advanced age" for compensation, even though [ he home

is conducted on a nonprofit basis or by a nonprofit corporation, 194446, p 153; applicability of this chapter to theMasonic and Eastern Star Home, 1948 -50, p 272.

SUPERSEDED

Chapter 443

Group Care Homes

443.2511 443.260

ATTY. GEN. OPINIONS: Certification by State Fire Mar- ATTY. GEN. OPINIONS: Certification by State Fire Mar- shal, 1960 -62, p 387. 1 shal, 1960 -62, p 387.

413

SUPERSEDED

Chapter 445

Indigents Injured in Motor Vehicle Accidents

Chapter 445

ATTY. GEN. OPINIONS: Private way and public way distinguished, 1950 -52, p 152; necessity that motor vehicle beproximate cause of injury, 1950 -52, p 241; requirement thatclaim be filed within 180 days as mandatory, 1950 -52, p 400; legislative intent as to operative date, 1952 -54, p 28; constitutionality, 1952 -54, p 90; requirement that authorization forpayment be found in language of this chapter, 1958 -60, p242.

LAW REVIEW CITATIONS: 1 WLJ 200.

445.010

ATTY. GEN. OPINIONS: Juvenile as " person" within defi-

nition of indigent patient, 1948 -50, p 293; injury on propertyadjacent to highway, motor vehicle as proximate cause, 1950 -52, p 60.

445.020

ATTY. GEN. OPINIONS: Wards of juvenile court or persons

receiving public assistance as " indigent patients," 1958 -60,

p 242.

445.030

ATTY. GEN. OPINIONS: Charging administrative expenseson collections for fund, 1964 -66, p 295; separability of 1965

amendment, 1964 -66, p 326; liability for prior expenses ofcollecting Motor Vehicle Accident Fund, 1966 -68, p 222.

445.050


445.090

ATTY. GEN. OPINIONS: Filing claim within 180 days asmandatory, 1950 -52, p 400.

445.110

ATTY. GEN. OPINIONS: Requirement that claimant file

affidavit of indigency as directory rather than mandatory, filing by other than hospital, 1948 -50, p 293; proper formrequired for claim, 1950 -52, p 241; time limitation as mandatory, 1950 -52, p 400.

445. 140

ATTY. GEN. OPINIONS: Requirement that commission

examine and audit claims, 1948 -50, p 293; time limitationas mandatory, 1950 -52, p 400.

445. 150

ATTY. GEN. OPINIONS: Proper form required for claim,

1950 -52, p 241.


414

SUPERSEDED

Chapter 446

Mobile Home and TouristFacilities; Farm Labor Camps

446.002 to 446. 115

ATTY. GEN. OPINIONS: Safety, construction, sanitationand other requirements applicable to mobile homes, ( 1971)

Vol 35, p 619.

446.002

NOTES OF DECISIONS

Removal of tires from mobile home, where removal is

a simple operation, does not change its character as a

mobile home. City of Astoria v. Northwang, ( 1960) 221 Or452, 351 P2d 688.

446.082

ATTY. GEN. OPINIONS: Safety, construction, sanitationand other requirements applicable to mobile homes, ( 1971)

Vol 35, p 619.

446. 115

ATTY. GEN. OPINIONS: Authority of health board to regulate trailers so congregated as to cause or spread disease,

1940 -42, p 375.

446. 125

ATTY. GEN. OPINIONS: Installations subject to local regulation, ( 1971) Vol 35, p 619.

446. 155 to 446.200

ATTY. GEN. OPINIONS: Applicability to mobile homes ofstate or local regulations, exemption of mobile homes from

local safety or construction standards, ( 1971) Vol 35, p 619.

415

446. 155

ATTY. GEN. OPINIONS: Applicability. of local sanitation, set -back and other requirements to complying mobilehomes, ( 1971) Vol 35, p 619.

446. 185

ATTY. GEN. OPINIONS: Applicability of local sanitation, set -back and other requirements to complying mobilehomes, ( 1971) Vol 35, p 619.

446.200

ATTY. GEN. OPINIONS: Exemption of mobile homes from

local standards; applicability to mobile homes of state orlocal sanitation and other regulations, ( 1971) Vol 35, p 619.

446.310 to 446.350

ATTY. GEN. OPINIONS: Safety, construction, sanitationand other regulation of mobile homes, ( 1971) Vol 35, p 619.

446.510 to 446.660

ATTY. GEN. OPINIONS: Enforcing officer when there isno local health officer, 1960 -62, p 383.

LAW REVIEW CITATIONS: 6 WLJ 120 -122.

446.620

ATTY. GEN. OPINIONS: Enforcing officer when there isno local health officer, 1960 -62, p 383; unpaid volunteerinspectors, ( 1970) Vol 35, p 125.

446.990


SUPERSEDED

Chapter 447

Plumbing Code; Burial Structures; Structural Standards

Chapter 447

ATTY. GEN. OPINIONS: Applicable mobile home sanitaryregulation, ( 1971) Vol 35, p 619.

447.010 to 447.090

ATTY. GEN. OPINIONS: Board regulations as supersedingcity and home rule county regulations, ( 1969) Vol 34, p 884; effect of higher state regulations, ( 1970) Vol -35, p 79:

447.010

ATTY. GEN. OPINIONS: Definition of plumbing as applyingto the plumbing code only, 1962 -64, p 384; application toinstallation of sprinkler systems, 196466, p 57; construingwork," ( 1970) Vol 35, p 79.

447.020

ATTY. GEN. OPINIONS: Application to installation of

sprinkler systems, 1964 -66, p 57; board regulations as superseding city and home rule county regulations, ( 1969) Vol34, p 884; effect of higher state regulations, ( 1970) Vol 35, p 79.

447.030

NOTES OF DECISIONS

Failure of a lien claimant to allege his registration defeats

his right to enforce such claim of lien unless the objection

is waived. Lorenz Co. v. Gray, ( 1931) 136 Or 605, 298 P 222, 300 P 949.

The objection that a lien claimant fails to allege in hisanswer and cross - complaint that he is registered in compli-

ance with this statute is waived by failure to demur. Id.

ATTY. GEN. OPINIONS: Registration of purchaser or

transferee of plumbing business, 1936 -38, p 470; operationof two shops under one license, 1938 -40, p 27; city permitto conduct plumbing business as restricted to those licensedby board of health, 193840, p 63; applicability to housingproject of the United States constructed on its property, 1940 -42, p 498; applicability to federal defense housing project, 1940 -42, p 574; registering of dealers of gas and electrichot water heaters, automatic washing machines and otherappliances connected to water pipes, 194648, p 258.

447.060

ATTY. GEN. OPINIONS: Right of owner of a building, whois not a registered plumber, to engage in plumbing workupon his own premises and employ another who is not aregistered plumber, without violating statute, 192426, p 497;

plumbing work by engineer of state institution as a violation of statute, 1924 -26, p 578; employment of owners ofproperty as not exempt from statute requiring certificateof competency, 1934 -36, p 479; licenses necessary to authorize school district and state college to install plumbing, 193436, p 482; when owner and workman may installplumbing in building, 1938 -40, p 728.

447.070

NOTES OF DECISIONS

Failure of a lien claimant to allege his registration in

compliance with statutory provisions defeats his right toenforce such claim of lien under this section unless the

objection is waived. Lorenz Co. v. Gray, ( 1931) 136 Or 605, 298 P 222, 300 P 949.

447.080

ATTY. GEN. OPINIONS: Adoption by cities of uniformregulations conforming with the state plumbing code andeffect of amendment to, or repeal of, state law adopted byreference as a city ordinance, 1936 -38, p 666; adoption ofseptic tank regulations, 1962 -64, p 391; board regulationsas superseding city and home rule county regulations,

1969) Vol 34, p 884; determining validity of local regulations, ( 1970) Vol 35, p 79; applicable mobile home sanitaryregulation, ( 1971) Vol 35, p 619.

447. 110 to 447. 140

ATTY. GEN. OPINIONS: Board regulations as supersedingcity and home rule county regulations, ( 1969) Vol 34, p 884; effect of higher state regulations, ( 1970) Vol 35, p 79.

447. 110

NOTES OF DECISIONSMisrepresentation as to compliance with statute, when

the facts were within knowledge of maker but not recipient, was a misrepresentation of fact and actionable. Sorenson

v. Gardner, ( 1959) 215 Or 255, 334 P2d 471.

ATTY. GEN. OPINIONS: Subsection ( 5) as authorizingState Board of Health to permit additional types of plumb-

ing materials, ( 1970) Vol 35, p 79.

447. 120

NOTES OF DECISIONS

Misrepresentation as to compliance with statute, when

the facts were within knowledge of maker but not recipient, was a misrepresentation of fact and actionable. Sorensonv. Gardner, ( 1959) 215 Or 255, 334 P2d 471.

416

l u

SUPERSEDED

Chapter 449

Water and Air Pollution Control

Chapter 449

NOTES OF DECISIONS

Present statute is an amended form of the anti- pollution

statute of 1938. State Sanitary Authority v. Pac. Meat Co., 1961) 226 Or 494, 360 P2d 634.

FURTHER CITATIONS: Martin v. Reynolds Metals Co.,

1963) 224 F Supp 978, afrd, 337 F2d 780; Hayden Island, Inc. v. Dept. of Environmental Quality, ( 1970) 4 OTR 69, afrd, 258 Or 597, 484 P2d 1106.

ATTY. GEN. OPINIONS: License of electrical contractor,

1956 -58, p 11; power of state to regulate nuclear powerinstallations, ( 1970) Vol 34, p 996; respective powers ofRogue River Coordination Board and the department,

1970) Vol 35, p 29; department certifying compliance withfederal standards, ( 1970) Vol 35, p 52.


449.016 to 449.070

LAW REVIEW CITATIONS: 3 WLJ 284293, 298, 299.

449.032

ATTY. GEN. OPINIONS: Department certification of com-

pliance with federal standards, ( 1970) Vol 35, p 52.

449.035

ATTY. GEN. OPINIONS: Receiving and dispensing fundsfor research in water pollution, 1948 -50, p 344.

449.055

ATTY. GEN. OPINIONS: Notice and hearing necessarybefore order involving abatement of pollution is promulgated, 1948 -50, p 350.

449.060

CASE CITATIONS: Renkin v. Harvey Aluminum, Inc., 1963) 226 F Supp 169.

449.064

LAW REVIEW CITATIONS: 2 EL 203.

449.070

ATTY. GEN. OPINIONS: Respective powers of Rogue River

Coordination Board and the department, ( 1970) Vol 35, p29.

449.075 to 449. 150

LAW REVIEW CITATIONS: 1 EL 73 -77.

449.075

ATTY. GEN. OPINIONS: Authority to establish waterquality standards, 1966 -68, p 383; respective powers ofRogue River Coordination Board and the department,

1970) Vol 35, p 29; department certifying compliance withfederal 'standards, ( 1970) Vol 35, p 52; city sewers discharging into river, (1970) Vol 35, p 241.


449.077

CASE CITATIONS: Hayden Island, Inc. v. Dept. of En-

vironmental Quality, ( 1970) 4 OTR 69, afrd 258 Or 597, 484P2d 1106.

ATTY. GEN. OPINIONS: Authority to establish waterquality standards, 1966 -68, p 383; respective powers ofRogue River Coordination Board and the Department of

Environmental Quality, ( 1970) Vol 35, p 29; departmentcertifying compliance with federal standards, ( 1970) Vol 35, p 55.

LAW REVIEW CITATIONS: 3 WLJ- 284 -293.

449.079

CASE CITATIONS: Columbia R. Fishermen''§ Protective

Union v. City of St. Helens, ( 1939) 160 Or 654, 87 P2d 195.

ATTY. GEN. OPINIONS: Silt as " matter ", 194042, p 193; manner of preventing deposit in streams by mining companies of materials injurious to fish, 1940.42, p 55; recourseof game commission against persons for prohibited acts

injuring fish, 1942114, p 375, 1946 -48, p 541; respective powers of Rogue River Coordination Board and the department,

1970) Vol 35, p 29; city sewers or industries, discharginginto river, ( 1970) Vol 35, p 241.

449.081

ATTY. GEN. OPINIONS: Department certification of com-

pliance with federal standards, ( 1970) Vol 35, p 52.


449.082

ATTY. GEN. OPINIONS: Authority of Sanitary Authorityto increase sewer• service rate charges upon hearing orinvestigation, 1940 -42, p 72; Sanitary Authority's discretionin spending money to conduct educational programs concerning abatement of Willamette River pollution, 1942 -44, p 113; laws relating to pollution of waters as applying tomunicipalities and individuals, 1942 -44, p 371; authority ofSanitary•Authority to recommend to a municipality a program for sewage disposal, and legally order enactment ofa particular ordinance, 1942. 44, p 371; directory nature of

417

SUPERSEDED

449.083

section, 1948 -50, p 344; notice and hearing necessary beforeorder involving abatement of pollution is promulgated, 1948 -50, p 350; authority to establish water quality standards, 1966 -68, p 383; department certification of compliancewith federal standards. ( 1970) Vol 35, p 52.


449.08.9

ATTY. GEN. OPINIONS: Authority to enforce water qualitystandards, 1966 -68, p 383; city sewers discharging into river,

1970) Vol 35, p 241.

449.086

ATTY. GEN. OPINIONS: Authority to establish waterquality standards, 1966 -68, p 383; respective powers ofRogue River Coordination Board and the department,

1970) Vol 35, p 29; city sewers discharging into river, (1970) Vol 35, p 241.


449,088

LAW REVIEW CITATIONS: 3 WLJ 284 -293,

449.090

NOTES OF DECISIONS

Objections to orders are waived by failure to seek remedyprovided by this section. State Sanitary Authority v. Pac. Meat Co., ( 1961) 226 Or 494, 360 P2d 634.

Statutory procedure for judicial review is exclusive. Id.

FURTHER CITATIONS: Hayden Island, Inc. v. Dept. of

Environmental Quality, ( 1970) 4 OTR 69, aff'd 258 Or 597, 484 P2d 1106.

ATTY. GEN. OPINIONS: Notice and hearing necessarybefore order involving abatement of pollution is promulgated, 1948 -50, p 350.


449.092


449.095

ATTY. GEN. OPINIONS: Duty of Sanitary Authority toenforce laws relating to pollution of waters of the state, 1942 -44, p 371.


449.097

ATTY. GEN. OPINIONS: Authority to enforce water qualitystandards, 1966 -68, p 383.


449. 100

NOTES OF DECISIONSThe complainant is entitled to no greater relief than was

demanded in the complaint. State Sanitary Authority v. Pac. Meat Co., ( 1961) 226. Or 494, 360 P2d 634.

ATTY. GEN. OPINIONS: Availability of in rem proceedingagainst water pollution nuisances, 1964 -66, p 132; authorityto enforce water quality standards, 1966 -68, p 383.


449. 103

ATTY. GEN. OPINIONS: Recourse of game commission

against persons for prohibited acts injuring fish, 1942 -44, p 375, 1946 -48, p 541.

449.105

ATTY. GEN. OPINIONS: Pollution of stream in mannermentioned in statute as violation of law whether water used

for domestic or municipal purposes, 192426, p 595; application of section where stream is polluted by hogs or bythe drainage from manure, 1928 -30, p 535; procedure inconnection with complaint concerning disposal of BakerCity sewage into Powder River, 1930 -32, p 630; applicationto manure stored -for fertilizer, 1966 -68, p 542.

449.107

ATTY. GEN. OPINIONS: Agency responsible for costs, supervision of litter patrol, ( 1970) Vol 34, p 889.

449. 125

ATTY. GEN. OPINIONS: Statute as prohibiting enlargement of cemetery established prior to enactment thereof, 1934 -36, p 713.

449.215

ATTY. GEN. OPINIONS: Authority of board of health overinland waters, 193436, p 143; authority of board of healthto promulgate regulations pertaining to interior water pip- ing in buildings and the disinfection of water mains beforebeing placed in service, 1936 -38, p 585; duty of board ofhealth in regard to application to supply water from creek, 1934 -36, p 625; authority of board of health by rules andregulations to control the use of sewage and sewage plant

effluents for irrigation or any other use that constitutes ahazard to public health, 1938 -40, p 493, 194446, p 465.

449.220

ATTY. GEN. OPINIONS: Duty and authority of board ofhealth as to application of water company to supply waterfrom creek to a community, over objection of a timbercompany, 1934 -36, p 625.

449.225

ATTY. GEN. OPINIONS: Discontinuance of city water service to districts outside of the city limits due to sewageconditions, 1948 -50, p 276.

449.230

ATTY. GEN. OPINIONS: Discontinuance of city water ser-

vice to districts outside of the city limits due to sewageconditions, 1948. 50, p 276.

449.245

ATTY. GEN. OPINIONS: Discharge of sewage into a tribu-

tary of the Deschutes River, 193436, p 143.

418

u

SUPERSEDED

449.305

ATTY. GEN. OPINIONS: Location of mineral claim upon

city owned watershed, 1938 -40, p 20; city' s jurisdiction toprohibit logging of privately owned timber within watershed, 1940 -42, p 607.

449. 790

449. 670 to 449. 701

LAW REVIEW CITATIONS: I EL 93.

449. 685

ATTY. GEN. OPINIONS: Advancement of funds to a mu-

nicipality for preliminary planning of waste treatment facility, ( 1971) Vol 35, p 727.

449. 702


449. 760 to 449. 845

CASE CITATIONS: Diercks v. Hodgdon, ( 1964) 237 Or 186,

390 P2d 935; McElwain v. Georgia - Pac. Corp., ( 1966) 245

Or 247, 421 P2d 957.

ATTY. GEN. OPINIONS: Applicability of Portland ordinance to Military Department 1966 - 68, p 78; regional authorities as members of Public Employes' Retirement Sys-

tem, 1966 - 68, p 319; relative jurisdiction of rural fire protection districts and regional air quality authority, 1966 - 68, p558.

LAW REVIEW CITATIONS: 46 OLR 478485; 50 OLR 90 - 96;

3 WLJ 287; 1 EL 125 - 128.

449. 760

ATTY. GEN. OPINIONS: Extent of authority' s power toregulate polluting emissions, 1966 - 68, p 229; division ofauthority between various agencies, 1966 - 68, p 614.

LAW REVIEW CITATIONS: 1 EL 73 - 77; 2 EL 188.

449. 765


LAW REVIEW CITATIONS: 1 EL 73 - 77; 2 EL 188 - 200, 204.

449. 770


449. 775

ATTY. GEN. OPINIONS: Limits on authority to issue burning permits, ( 1970) Vol 35, p 160.

449. 781

ATTY. GEN. OPINIONS: Rule- making authority of regionalair pollution authority, 1966 - 68, p 614.


449. 785

ATTY. GEN. OPINIONS: Extent of authority' s power toregulate polluting emissions, 1966 - 68, p 229; rule- makingauthority of regional air pollution authority, 1966 - 68, p 614.

LAW REVIEW CITATIONS: 1 EL 73 - 78.

449. 790


419

449.310

LAW REVIEW CITATIONS: I EL 73 -77.

449.315

ATI'Y. GEN. OPINIONS: Authority of city peace officersto protect water systems, transmission lines, etc., from

damage by saboteurs, 1940 -42, p 562.

449.320

ATTY. GEN. OPINIONS: Cemetery within 300 yards ofsource of city water supply, 1934 -36, p 713; application ofstatute to pollution of stream by mining, 1938 -40, p 20.

449.327

ATTY. GEN. OPINIONS: Authority of State Police to arrestfor violation of city ordinance, 1964 -66, p 105.

449.395


449.410

ATTY. GEN. OPINIONS: Most suitable method of furnish-

ing sewage disposal service for incorporated and unincorporated area with one plant, 1948 -50, p 454.

449.435

ATTY. GEN. OPINIONS: Contracting between municipalities for joint sewage facilities, 1948 -50, p 454; use of countygeneral funds to finance sewer service facilities, 1966 -68,

p 445.

449.455

ATTY. GEN. OPINIONS: Advancement of funds from bond

proceeds to a municipality for preliminary planning ofwaste treatment facility, ( 1971) Vol 35, p 727.

449.505 to 449.580

LAW REVIEW CITATIONS: 3 WLJ 298, 299; 1 EL 73 -77.

449.505

ATTY. GEN. OPINIONS: Constitutionality, 194648, p 168.

449.605 to 449.665

CASE CITATIONS: Hayden Island, Inc. v. Dept. of En-

vironmental Quality, (1970) 4 OTR 69, affd, 258 Or 597, 484P2d 1106.

449.635

NOTES OF DECISIONS

Until taxpayer has a certificate from the department, he

is not entitled to any tax relief. Hayden Island, Inc. v. Dept. of Environmental Quality, ( 1970) 4 OTR 69, affd, 258 Or597, 484 P2d 1106.

449. 790

449. 670 to 449. 701

LAW REVIEW CITATIONS: I EL 93.

449. 685

ATTY. GEN. OPINIONS: Advancement of funds to a mu-

nicipality for preliminary planning of waste treatment facility, ( 1971) Vol 35, p 727.

449. 702


449. 760 to 449. 845

CASE CITATIONS: Diercks v. Hodgdon, ( 1964) 237 Or 186,

390 P2d 935; McElwain v. Georgia - Pac. Corp., ( 1966) 245

Or 247, 421 P2d 957.

ATTY. GEN. OPINIONS: Applicability of Portland ordinance to Military Department 1966 - 68, p 78; regional au-

thorities as members of Public Employes' Retirement Sys-

tem, 1966 - 68, p 319; relative jurisdiction of rural fire protection districts and regional air quality authority, 1966 - 68, p

558.

LAW REVIEW CITATIONS: 46 OLR 478485; 50 OLR 90 - 96;

3 WLJ 287; 1 EL 125 - 128.

449. 760

ATTY. GEN. OPINIONS: Extent of authority' s power toregulate polluting emissions, 1966 - 68, p 229; division ofauthority between various agencies, 1966 - 68, p 614.

LAW REVIEW CITATIONS: 1 EL 73 - 77; 2 EL 188.

449. 765


LAW REVIEW CITATIONS: 1 EL 73 - 77; 2 EL 188 - 200, 204.

449. 770


449. 775


449. 781

ATTY. GEN. OPINIONS: Rule- making authority of regionalair pollution authority, 1966 - 68, p 614.


449. 785

ATTY. GEN. OPINIONS: Extent of authority' s power toregulate polluting emissions, 1966 - 68, p 229; rule- makingauthority of regional air pollution authority, 1966 - 68, p 614.


449. 790


419

SUPERSEDED

449.800

449.800

ATTY. GEN. OPINIONS: Rule- making'authority of regionalair pollution authority, 1966 -68, p 614.

449.805


449.820

NOTES OF DECISIONS

This section recognizes that the Air Pollution Law does

not pre -empt the field. Renkin v. Harvey Aluminum, ( 1963) 226 F Supp 169.

For purposes of this section, actions or suits relating toprivate or public nuisances include those sounding in trespass. Reynolds -Metal Co. v. Martin, ( 1964) 224 F Supp 978, afrd, 337 F2d 780.

FURTHER CITATIONS: Diercks v. Hodgdon, ( 1964) 237 Or186, 390 P2d 935.

ATTY. GEN. OPINIONS: Open burning near city, (1970) Vol35, p 241.

LAW REVIEW CITATIONS: 46 OLR 476; 1 EL 80.

449.825


449.830


449.840


449:850 to 449.925

LAW REVIEW CITATIONS: 50 OLR 90 -96; 1 EL 125 =128.

449.855

ATTY. GEN. OPINIONS: Relative jurisdiction of rural fire

protection district and regional authority, 1966 -68, p 558; rule- making authority of regional air pollution authority, 1966 -68, p 614.

LAW REVIEW CITATIONS: 50 OLR 90; 1 EL 73 -77; 2 EL203.

449.875

ATTY. GEN. OPINIONS: Rule- making powers of regionalair pollution authority, 1966 -68, p 614.


449.890


449.990

CASE CITATIONS: McElwain v. Georgia -Pac. Corp., (1966) 245 Or 247, 421 P2d 957.

ATTY. GEN. OPINIONS: Authority to enforce water qualitystandards, 1966 -68, p 383.

LAW REVIEW CITATIONS: 46 OLR 476, 479-485; 50 OLR

91; 3 WLI 293, 298, 299; 1 EL 125 -128; 2 EL 202 -213.

420

SUPERSEDED

Chapter 450

Sanitary Districts and Authorities; Water Supply Authorities

450.005 to 450.245

NOTES OF DECISIONS

These sections give a district the authority to assess andrequire payment for improvements before construction is

commenced. Aloha Sanitary Dist. v. Wilkens, ( 1966) 245 Or40, 420 P2d 74.

FURTHER CITATIONS: Elmore v. Aloha Sanitary Serv., 1970) 256 Or 267, 473 P2d 130.

ATTY. GEN. OPINIONS: Procedures for dissolution of san-

itary district, 1954 -56, p 187; compliance with statutoryconditions for issuing bonds, 1960 -62, p 239; sanitary districtfacilities operated on right of way of state highway, 1960 -62, p 366; superimposition of sanitary authority on district, 1966 -68, p 121; authority for merger of districts, ( 1970) Vol34, p 1105.


450.005

ATTY. GEN. OPINIONS: Most suitable method of forminga " district" for furnishing sewage disposal service for incorporated and unincorporated area with one plant, 1948 -50,

p 454; county court as supervisory body of county, 1956 -58, p 179; coexistence of sanitary district and sanitary authorityin same territory, 1966 -68, p 121.


450.045

ATTY. GEN. OPINIONS: Regular election day for sanitarydistricts construed, 1952 -54, p 220; annexation of entiredistrict, (1970) Vol 34, p 1105.

4fi i;

ATTY. GEN. OPINIONS: Annexation of entire district,

1970) Vol 34, p 1105.

450.075

NOTES OF DECISIONS

This section gives the district the authority to assess andrequire payment for improvements before construction is

commenced. Aloha Sanitary Dist. v. Wilkens, (1966) 245 Or40, 420 P2d 74.

ATTY. GEN. OPINIONS: Most suitable method of furnish-

ing sewage disposal service for incorporated and unincorporated area with .one plant, 1948 -50, p 454; improvementdistrict authority to install and maintain sewage treatmentplants, 1952 -54, p 37; coexistence of sanitary districts andsanitary authorities, 1966 -68, p 121.

450.090

ATTY. GEN. OPINIONS: Treasurer's procedure when funds

not available to pay a claim against the district, 1952 -54, p 170.

I 7i

ATTY. GEN. OPINIONS: Bond limitations, 1956 -58, p 12; limitations on bonded indebtedness, 1958 -60, p 4; compliancewith statutory conditions for issuing bonds, 1960 -62, p 239.

450. 125

ATTY. GEN. OPINIONS: Bond limitations, 1956 -58, p' 12.

450. 140

NOTES OF DECISIONS

This section gives the district the authority to assess andrequire payment for improvements before, construction is

commenced. Aloha Sanitary Dist. y. Wilkens, ( 1966) 245 Or40, 420 P2d 74.

450. 165

CASE CITATIONS: Aloha Sanitary Dist. v. Wilkens, ( 1966) 245 Or 40, 420 P2d 74.

450. 165

CASE CITATIONS: Aloha Sanitary Dist. v. Wilkens, ( 1966) 245 Or 40, 420 P2d 74.

ATTY. GEN. OPINIONS: Bond limitations on sale to state

under these sections, 1958 -60, p 4; co-existence of sanitarydistricts and sanitary authorities, 1966 -68, p 121.

LAW REVIEW CITATIONS: 3 WLJ 291; 4 WLJ 503.

450.=

ATTY. GEN. OPINIONS: District valuation, 1956 -58, p 12.

450.255

ATTY. GEN. OPINIONS: Qualification of districts for aid,

1956 -58, p 12.

421

450.270

ATTY. GEN. OPINIONS: Discretion of commission on pur-

chase of bonds, 1958 -60, p 4.

SUPERSEDED

450.275

450.275

ATTY. GEN. OPINIONS: State ownership as restrictingfurther bond issue, 1958 -60, p 4.

450.280

ATTY. GEN. OPINIONS: Bond limitations, 1956 -58, p 12; commission purchasing additional bond issues of sanitary , district, 1958 -60, p 4.

450.285

ATTY. GEN. OPINIONS: Purchase of qualifying bonds, 1956 -58, p 12; amount of sewer bond fund, 1958 -60, p 4.

450.303

ATTY. GEN. OPINIONS: Compliance with statutory conditions for issuing bonds, 1960 -62, p 239; interest rate onbonds, 1960 -62, p 239; coexistence of sanitary districts andsanitary authorities, 1966 -68, p 121.


450.705 to 450.980

ATTY. GEN. OPINIONS: Superimposition of sanitary authority on district, 1966 -68, p 121; operation of sanitaryauthority ordinance within a city, ( 1968) Vol 34, p 183.

450.705

ATTY. GEN. OPINIONS: Scope of purpose of sanitary authority as greater than sanitary districts, 1966 -68, p 121; sanitary authority as a district, 1966 -68, p 530.

z

450.715

ATTY. GEN. OPINIONS: Co- existence of sanitary districtsand sanitary authorities, 1966 -68, p 121.

450.810

ATTY. GEN. OPINIONS: Co- existence of sanitary districtsand sanitary authorities, 1966 -68, p 121; city and home rulecounty within sanitary district, ( 1968) Vol 34, p 183.

450.815


450.820

ATTY. GEN. OPINIONS: Co- existence of sanitary districtsand santary authorities, 1966 -68, p 121.

450.830


450.835

ATTY. GEN. OPINIONS: Cooperation of district and au-

thority, 1966 -68, p 121.

450.990


422

SUPERSEDED

is

Chapter 451

County Service Facilities

Chapter 451

ATTY. GEN. OPINIONS: Inclusion of city within servicedistrict, 1964 -66, p 320; formation of county service districtby initiative or referendum, 1966 -68, p 13; county servicedistrict as separate from county itself, 1966 -68, p 432.

LAW REVIEW CITATIONS: 46 OLR 251, 263; 4 WLJ 482,

487-491.

451.010

ATTY. GEN. OPINIONS: Authority to form a district in arealying in two counties, 1964 -66, p 320.

451. 110 to 451. 140

ATTY. GEN. OPINIONS: Authority to form a district in areawithin a city, 1964 -66, p 320.

LAW REVIEW CITATIONS: 46 OLR 263, 266; 4 WU 482.

451. 140

ATTY. GEN. OPINIONS: County purchase of bonds issuedby public body party to contract, 1958 -60, p 374.

451. 410 to 451. 585

ATTY. GEN. OPINIONS: Authority to form a district in arealying in two counties or in a city, 1964 -66, p 320; countyservice districts in Multnomah County, 1966 -68, p 445; application of Local Budget Laws, ( 1969) Vol 34, p 554.

451.410

ATTY. GEN. OPINIONS: Authority to form a district in arealying in two counties, 1964 -66, p 320; district attorney aslegal adviser for districts, 1966 -68, p 432; county servicedistrict as municipality or political subdivision, 1966 -68, p445.

451.420

ATTY. GEN. OPINIONS: Use of county general funds tofinance sewer service facilities, 1966 -68, p 445.

451.430

AM. GEN. OPINIONS: Use of initiative and referendum

to establish park district under this chapter, 1966 -68, p 13.

451.485

ATTY. GEN. OPINIONS: Authority to form a district in area

lying in two counties or in a city, 1964 -66, p 320; districtattorney as legal adviser for districts, 1966 -68, p 432.

451. 490

ATTY. GEN. OPINIONS: District attorney as legal adviserfor districts, 1966 -68, p 432; use of county general fundsto finance sewer service facilities, 1966 -68, p 445.

451. 540

ATTY. GEN. OPINIONS: Authority to form a district in areawithin a city, 1964 -66, p 320; use of county general fundsto finance sewer service facilities, 1966 -68, p 445.

451. 545

ATTY. GEN. OPINIONS: District attorney as legal adviserfor districts, 1966 -68, p 432.

451.547

ATTY. GEN. OPINIONS: District attorney as legal adviserfor districts, 1966 -68, p 432; application of Local BudgetLaws, ( 1969) Vol 34, p 554.

451. 550

ATTY. GEN. OPINIONS: County court power of condemnation, 1956 -58, p 159; authority to form a district in arealying in two counties, 1964 -66, p 320.

451. 560

ATTY. GEN. OPINIONS: Authority to form a district in arealying in two counties or in a city, 1964 -66, p 320; use ofcounty general funds to finance sewer service facilities, 1966-68, p 445.

451. 570

ATTY. GEN. OPINIONS: County licensing of garbage collectors, 1966 -68, p 600.

451. 577

ATTY. GEN. OPINIONS: Formation of a county servicedistrict extending into limits of a city, 1964 -66, p 320.

451. 585

ATTY. GEN. OPINIONS: Construing " district," 1966 -68, p530.

423

SUPERSEDED

Chapter 452

Insect Control; Ragweed Control

452.010

ATTY. GEN. OPINIONS: Applicability of municipal auditlaw, 1962 -64, p 56.

452.020 to 452. 170

ATTY. GEN. OPINIONS: Vector control districts as distinct

municipal corporations within audit provisions of ORS

297.610, 1962 -64, p 56.

452.020

ATTY. GEN. OPINIONS: Authority to organize insect con-

trol districts as limited to counties containing 100,000 ormore population, 1940 -42, p 427.

452. 160

ATTY. GEN. OPINIONS: County levy powers as explicit, 1962 -64, p 59; legislative limit on tax base, ( 1970) Vol 34, p 1043.

452.520


424

SUPERSEDED

Chapter 453

Hazardous Substances; Radiation Sources

Chapter 453

CASE CITATIONS: MacEwan v. Holm, ( 1960) 226 Or 27,

359 P2d 413, 85 ALR2d 1086.

453.085

NOTES OF DECISIONS

Under a former similar statute, the statute in effect de-

fined poison as " any substance which, when applied to thebody externally, or in any way introduced into the system, without acting mechanically, but by its own inherent quali- ties, is capable of destroying life." Stone v. Shaw SupplyCo., ( 1934) 148 Or 416, 36 P2d 606.

Under a former similar statute, it was negligence per se

for a dealer to violate it and, in a proper case, the juryshould have been so instructed. Id.

A manufacturer using an improper label was not, undera former similar statute, liable to a mother for emotional

distress and minor injuries flowing from knowledge her sonhad been injured as a result of such improper label. Rogersv. Hexol, Inc., ( 1962) 218 F Supp 453.

ATTY. GEN. OPINIONS: Labeling as a poison a cockroachspray which contains carbolic acid in a concentration ofless than five percent, 1930 -32, p 443; sale of caustic poisonsby persons other than registered pharmacists, 1932 -34, p 663; application of statute to places of business on Indian reser-

vations, 1938 -40, p 736; marihuana as poison, 1960 -62, p 136; poisons defined, 196466, p 222.

453.605 to 453.745

ATTY. GEN. OPINIONS: Power of state to regulate nuclear

power installations, ( 1970) Vol 34, p 996.


453.605

CASE CITATIONS: MacEwan v. Holm, ( 1960) 226 Or 27, 53, 359 P2d 413, 85 ALR2d 1086.

453.615

CASE CITATIONS: MacEwan v. Holm, ( 1960) 226 Or 27,

53, 359 P2d 413, 86 ALR2d 1086.

453.625

NOTES OF DECISIONS

The need for prior research to effectuate sound regulations is recognized. MacEwan v. Holm, ( 1960) 226 Or 27,

53, 359 P2d 413, 85 ALR2d 1086.

453.635

CASE CITATIONS: MacEwan v. Holm, ( 1961) 226 Or 27, 359 P2d 413.

453.645

NOTES OF DECISIONS

Appointment of advisory committee was in contempla- tion of problems which may be beyond the ken of the boardacting alone. MacEwan v. Holm, ( 1960) 226 Or 27, 54, 359P2d 413, 95 ALR2d 1086.

425

SUPERSEDED

Chapter 456

Housing

Chapter 456

CASE CITATIONS: Port of Umatilla v. Richmond, ( 1958)

212 Or 596, 614, 321 P2d 338; Hallberg v. Housing Authorityof Portland, ( 1966) 243 Or 204, 412 P2d 374.

ATTY. GEN. OPINIONS: Housing authority as instrumentality of state, 1950.52, p 35; housing authority as publicagency, 1958 -60, p 96; legislative intent as to autonomy andboundaries of housing authority, 1962 -64, p 123; housingauthority as municipal corporation, 1962 -64, p 287; applicability of local budget law, 1964 -66, p 18.

456.005 to 456.235

CASE CITATIONS: Portland v. Holmes, ( 1962) 232 Or 505,

376 P2d 120.

ATTY. GEN. OPINIONS: Relation of Act to United States

Housing Act, 1962 -64, p 287.

456.005

ATTY. GEN. OPINIONS: Application of municipal audit law

to a housing authority, 1962 -64, p 287; application of LocalBudget Law, 1964 -66, p 18.

ATTY. GEN. OPINIONS: Operation within city, 1962 -64, p124.

456.065

NOTES OF DECISIONS

Under its authority to fix rents, a county housing authority must classify tenants for rental rating purposes on basiswhich has some reasonable relation to the purposes for

which public housing is built and maintained. Hammondv. Housing Authority, ( 1971) 328 F Supp 586.

45& 070

ATTY. GEN. OPINIONS: Purpose of housing authority, 1962 -64, p 287.

45& 075 to 456.090

ATTY. GEN. OPINIONS: Creation of housing authority, 1958 -60, p 201, 1962 -64, p 287.

456.075

ATTY. GEN. OPINIONS: Housing authority as publicagency, 1958 -60, p 201; housing authority as municipal corporation, 196466, p 18; authority of Portland Housing Au- thority to come under Department of Employment Law, 1966 -68, p 12.

456.095

ATTY. GEN. OPINIONS: Employment contract extendingbeyond terms of board members, 1956 -58, p 174.

456. 100

ATTY. GEN. OPINIONS: Employment contract extendingbeyond terms of board members, 1956 -58, p 174.

458. 105

ATTY. GEN. OPINIONS: Employment of secretary - treasurer and executive director for three -year term, 1956-

58, p 174.

456. 120

NOTES OF DECISIONS

Under its authority to fix rents, a county housing authority must classify tenants for rental rating purposes on basiswhich has some reasonable relation to the purposes for

which public housing is built and maintained. Hammondv. Housing Authority, ( 1971) 328 F Supp 586.

ATTY. GEN. OPINIONS: Housing authority as state instrumentality, 1950 -52, p 35; employment contract extendingbeyond terms of board members, 1956 -58, p 174; housingauthority as municipal corporation, 1962 -64, p 287, 1964 -66, p. 18; authority of Portland Housing Authority to comeunder Department of Employment Law, 1966 -68, p 12.

456. 122

ATTY. GEN. OPINIONS: Application of municipal audit lawto a housing authority, 1962 -64, p 287; application of LocalBudget Law, 196466, p 18.

45 &125

ATTY. GEN. OPINIONS: Powers as exclusive, 1962 -64, p287.

456. 145

CASE CITATIONS: Portland v. Holmes, ( 1962) 232 Or 505, 376 P2d 120.

ATTY. GEN. OPINIONS: Power of condemnation, 1956 -58,

p 159.

456. 155

ATTY. GEN. OPINIONS: Housing authority as instrumentality of state, 1950.52, p 35.

426

l u

SUPERSEDED

456. 160


456.215

ATTY. GEN. OPINIONS: Relation of Act to United States

Housing Act, 1962 -64, p 287.

456.220

ATTY. GEN. OPINIONS: Housing authority as instrumentality of state, 1950 -52, p 35.

427

456.235

456.225

ATTY. GEN. OPINIONS: Housing authority as instrumentality of state, 1950 -52, p 35.

456.235

ATTY. GEN. OPINIONS:• Allocation of surplus upon disso-

lution, 1962 -64, p 123.

SUPERSEDED

Chapter 457

Urban Renewal and Redevelopmentof Deteriorated and Blighted Areas

Chapter 457

NOTES OF DECISIONS

This chapter is not unconstitutional under Ore. Const.

Art. I, § 18, which provides that property shall not be takenfor public use without just compensation; Art. I, § 20, whichprohibits class legislation; Art. III, §1 and Art. IV, §1, whichprohibit the delegation of legislative power, Art. IV, §20,

which provides for the title requirements of an Act; Art.

XI, §9, which prohibits the aiding of private individuals bypublic funds and credit, or the due process clause of U.S.

Const., Am., 14. Foeller v. Housing Authority of Portland, 1953) 198 Or 205, 256 P2d 752.

FURTHER CITATIONS: Portland v. Ruggero, ( 1962) 231

Or 624, 373 P2d 970.

ATTY. GEN. OPINIONS: Creative urban renewal agencyto relocate city, 1958 -60, p 96; agency's eligibility for federalSocial Security program, 1958 -60, p 201; urban renewalagency as municipal corporation, 1964 -66, p 18.

LAW REVIEW CITATIONS: 2 WLJ 359 -383, 396.

457.010 to 457. 100

CASE CITATIONS: Foeller v. Housing Authority of Port- land, ( 1953) 198 Or 205, 256 P2d 752.

457.010

CASE CITATIONS: Portland v. Holmes, ( 1962) 232 Or 505,

376 P2d 120.

457.030

CASE CITATIONS: Portland v. Ruggero, ( 1962) 231 Or 624, 373 P2d 970.

457.040


ATTY. GEN. OPINIONS: Condemnation powers, 1956 -58,

p 159.

457. 150 to 457.240

NOTES OF DECISIONS

In the absence of fraud, bad faith or abuse of discretion,

determination by the grantee of the powers of eminentdomain of whether condemnation of the property is necessary is final and not subject to judicial review. Portlandv. Swanson, ( 1969) 254 Or 612, 459 P2d 879.

457.130

ATTY. GEN. OPINIONS: Urban Renewal Agency of Eugeneas " public agency" under ORS 237.410, 1958 -60, p 201; participation of agency in Public Employes' Retirement Sys- tem, 1962 -64, p 313; application of Local Budget Law, 1964- 66, p 18.

457. 140

ATTY. GEN. OPINIONS: Urban Renewal Agency of Eugeneas " public agency" under ORS 237.410, 1958 -60, p 201.

457. 150

CASE CITATIONS: Portland v. Swanson, ( 1969) 254 Or 612,

459 P2d 879.

457. 160

ATTY. GEN. OPINIONS: City relocation as urban renewal, 1958- 60, p 96.

457.170

ATTY. GEN. OPINIONS: City relocation as urban renewal, 1958 -60, p 96.

457.230


457.M


428

SUPERSEDED

r u

J

Chapter 459

Solid Waste Control

459.045

ATTY. GEN. OPINIONS: Construing rule - making authority, 1966 -68, p 216; county licensing of garbage collectors, regulating dump sites, 1966 -68, p 600.

459.085

ATTY. GEN. OPINIONS: Exclusive county garbage collection franchise, 1966 -68, p 600.


459.095

ATTY. GEN. OPINIONS: Exclusive county garbage collec-

429

tion franchise, application of dump regulations to pre- exist- ing dumps, 1966 -68, p 600.


459. 105

ATTY. GEN. OPINIONS: Exclusive county garbage collection franchise, application of dump regulations to pre- exist- ing dumps, 1966 -68, p 600.


459. 130

ATTY. GEN. OPINIONS: Publication in weekly newspaper, 1970) Vol 35, p 247.

SUPERSEDED

Chapter 460

Elevators; Public Structures; Amusement Rides

460. 115 460.360

ATTY. GEN. OPINIONS: Unpaid volunteer inspectors, I LAW REVIEW CITATIONS: 1 WLJ 236.

1970) Vol 35, p 125.

430

SUPERSEDED

Chapter 462

Racing

Chapter 462

CASE CITATIONS: Greyhound Park v. Ore. Racing Comm., 1958) 215 Or 76, 332 P2d 634.

ATTY. GEN. OPINIONS: Licensing fees as revenue, 1950 -52, p 100; prerequisites to distribution of receipts, 1956 -58, p125; authority of Oregon Racing Commission to license andregulate racing as exclusive, 1960 -62, p 372.

462.010

CASE CITATIONS: Portland v. Duntley, ( 1949) 185 Or 365, 203 P2d 640; Greyhound Park v. Ore. Racing Comm., ( 1958)

215 Or 76, 332 P2d 634; Oregon Racing Comm. v. Multno- mah Kennel Club, ( 1966) 242 Or 572, 411 P2d 63.

ATTY. GEN. OPINIONS: Applicability to nonthoroughbredhorse racing, 1932 -34, p 352; constitutionality of Racing Actunder Ore. Const. Art. XV, §4, prohibiting lotteries, 1934 -36, p 11; application of ORS 462.273 to member of commissionwho raises horses to sell, 1964 -66, p 422; licensing requirements of dogs kept for racing, ( 1970) Vol 35, p 292.

462.020

CASE CITATIONS: Greyhound Park v. Ore. Racing Comm., 1958) 215 Or 76, 332 P2d 634.

462.030

ATTY.- GEN. OPINIONS: Citizenship of racing officials, managers and supervisors, 1958 -60, p 167.

462.057

CASE CITATIONS: City of Beaverton v. Hams, ( 1970) 3Or App 541, 474 P2d 771.

462.075

CASE CITATIONS: Greyhound Park v. Oregon RacingComm., ( 1958) 215 Or 76, 332 P2d 634.

462. 100

CASE CITATIONS: City of Beaverton v. Hams, ( 1970) 3Or App 541, 474 P2d 771.


462. 110

ATTY. GEN. OPINIONS: Necessity that Oregon State Fairfurnish surety bond and carry public liability insurance, 1950 -52, p 21.

462. 140

NOTES OF DECISIONS

The first sentence read with the title of the Racing Actindicates that the legislature has made bookmaking, poolselling and circulation of handbooks unlawful at all places, including the race track. Portland v. Duntley, ( 1949) 185Or 365, 203 P2d 640.

Only regulated mutual wagering at a licensed track hasbeen excepted by the Racing Act from operation of theNuisance Statute. Id.

An ordinance making it unlawful to conduct bookmakingestablishments, to sell pools or tickets or to gamble in anymanner upon animal races, excepting pari- mutuel bettingat the track or at meets supervised by the Oregon RacingCommission, did not conflict with any alleged change inthe Nuisance Statute or public policy by reason of theRacing Act having made mutual wagering lawful, and suchordinance was valid. Id.

ATTY. GEN. OPINIONS: Scheme to bet on golfers in a

tournament, 1964 -66, p 7.

462. 150

NOTES OF DECISIONS

Money received by a licensee on account of outstandingwinning tickets is not money from underpayment under thissection. Oregon Racing Comm. v. Multnomah Kennel Club,

1966) 242 Or 572, 411 P2d 63.

ATTY. GEN. OPINIONS: City withholding of unauthorizedtax as " underpayment ", 1952 -54, p 202.

462. 170

ATTY. GEN. OPINIONS: County or other nonprofit fairassociation as a non -profit organization although profit

may result from wagering in connection with races, 1934 -36, p 54; day horse racing and evening dog racing at countyfairs, 1934 -36, p 54; lease of state fairgrounds for a racemeet at any time other than the period of the state fairas contravening section, 1936 -38, p 116; George A. WhiteService Men' s Club as nonprofit charitable corporation

authorized to conduct fairs, 1942 -44, p 8.

462.250

ATTY. GEN. OPINIONS: Authority of commission to employ personnel at horse races at the state fair, 1950 -52, p380; civil service classification of personnel, 1956 -58, p 203.

431

462.260

ATTY. GEN. OPINIONS: Deposit of funds collected in a

bank, 1936 -38, p 243; disposition of proceeds from tax onpari- mutuel wagering levied by a city, 1952 -54, p 202; racingcommission as state agency, 1956 -58, p 203; distribution of

SUPERSEDED

462.273

revenues to Oregon State Fair after 1963 amendment,

1962 -64, p 334.

462.273

ATTY. GEN. OPINIONS: Application of this section to

member who raises horses to sell, 1964 -66, p 422.

462.280

ATTY. GEN. OPINIONS: Keeping and handling of revolvingfund for current expenses, 1936 -38, p 242; expenditure bycounty fair board of the fund for the Spring Lamb and DairyShow, 1946 -48, p 378; validity of the distribution and alloca-

tion of moneys paid into the State Treasury by the racingcommission, 1952 -54, p 90; depositing revenues in the 4-Hand F.F.A. Building Investment Amortization Fund, 1956 -58, p 125; using show funds for county fair purposes, 1960 -62, p 357; distribution of revenues to Oregon State Fair after1963 amendment, 1962 -64, p 334.

462.290

ATTY. GEN. OPINIONS: Distributions as for public pur-

pose, 1952 -54, p 90; using show funds for county fair purposes, 1960 -62, p 357.

432

r

SUPERSEDED

J

Chapter . 463

Boxing and Wrestling

Chapter 463

NOTES OF DECISIONS

Banning of female wrestlers is not unconstitutional discrimination against women nor an unconstitutional denial

of women' s civil or political rights. State v. Hunter, ( 1956)

208 Or 282, 300 P2d 455.

ATTY. GEN. OPINIONS: Disbursement of funds received

by boxing and wrestling commission, 1948 -50, p 307; application of chapter to wrestlers, 1952 -54, p 196.

4&3.021

ATTY. GEN. OPINIONS: Participation by male personsexclusively, 1952 -54, p 196; constitutionality of barringwomen participants, 195456, p 92.

463.031

CASE CITATIONS: McGowan v. Maryland, ( 1961) 366 US

420, 557, 81 S Ct 1153, 1211, 6 L Ed 2d 501.

ATTY. GEN. OPINIONS: Matches without consent of com-

mission as " prize fights," 1954 -56, p 92.

463.060

ATTY. GEN. OPINIONS: Authority of commissioner certifying to physical condition of competitor to collect compensation therefor, 1936 -38, p 252.

463. 110

ATTY. GEN. OPINIONS: City's or commission' s liability forinjury of spectator or participant in bout, 1932 -34, p 547; liability of city or commission in case of injury to a contes- tant, 1934 -36, p 447; necessity for appointment of commission, 1934 -36, p 447; control and jurisdiction of commission, 1936 -38, p 178; right of mayor to act as member of commis -' sion, 1936 -38, p 252; qualifications of commission membersand of osteopathic physician to serve as member, 1946 -48,

p 180; meaning of " physician," 1952 -54, p 196.

463. 120

CASE CITATIONS: Von Poppenheim v. Portland Boxingand Wrestling Comm., ( 1965) 241 Or 603, 407 P2d 853.

ATTY. GEN. OPINIONS: Authority of state advisory boardto authorize conduct of a boxing contest in connection withthe program of the Pioneer Picnic, 1926 -28, p 218; application of statute to boxing and wrestling competitions heldby high schools and colleges, 1932 -34, p 106; disbursementof funds received by a commission, 1948 -50, p 307.

463. 130

NOTES OF DECISIONS

Provision prohibiting female wrestling was not unconstitutional as denying equal protection of the laws under U.S. Const., Am. 14, § 1, or equality of privileges and immunitiesof citizens -under Ore. Const. Art. I, § 20. State v. Hunter, 1956) 208 Or 282, 300 P2d 455.

ATTY. GEN. OPINIONS: Validity of provision prohibitingfemale wrestling, 195456, p 92.

463. 140

NOTES OF DECISIONS

The commission cannot be compelled to employ plaintiffas a promoter. Von Poppenheim v. Portland Boxing andWrestling Comm., ( 1965) 241 Or 603, 407 P2d 853.

463. 150

ATTY. GEN. OPINIONS: Eligibility of secretary for socialsecurity coverage, 1952 -54, p 196.

463. 170

ATTY. GEN. OPINIONS: Distribution of civic emergencyfund, 1936 -38, p 178; validity of the use by an AmericanLegion post of its distributive shares of the civic emergencyfund to pay its proportion of the cost of maintaining anoffice of a veterans' service officer, 1944 -46, p 214; distribution to a subsidiary veteran group, 1948. 50, p 307; veteranorganizations that qualify under this section, 1948 -50, p 307.

NOTES OF DECISIONS

The ban against wrestling by women would require onlythis section to form a complete Act within itself. State v. Hunter, ( 1956) 208 Or 282, 300 P2d 455.

433

SUPERSEDED

Chapter 465

Gambling; Places of Prostitution or Unlawful Abortions

Chapter 465

ATTY. GEN. OPINIONS: Availability of in rem proceedingagainst places where nuisances exist, 1964 -66, p 132.

465.010

NOTES OF DECISIONS

Continued failure or refusal to prosecute for illegal gam-

bling does not render such gambling legal. State v. Langley, 1958) 214 Or 445, 472, 315 P2d 560, 323 P2d 301, cert. denied,

358 US 826, 79 S Ct 45, 3 L Ed 2d 66.

465.090

Indorsee of check for gambling debt has burden of showing he is holder in good faith. Matlock v. Scheuerman,

1908) 51 Or 49, 52, 93 P 823, 17 LRA( NS) 747.

A bona fide indorsee for value of a check given for a

gambling debt is not bound on discovering the originalinvalidity to sue the indorser, rather than the maker. Id.

FURTHER CITATIONS: Ah Doon v. Smith, ( 1893) 25 Or

89, 34 P 1093; Mozorosky v. Hurlburt, ( 1923) 106 Or 274, 198 P 556, 211 P 893.

LAW REVIEW CITATIONS: 8 OLR 99; 33 OLR 53.

465. 110 to 465. 180

CASE CITATIONS: State v. Buck, ( 1953) 200 Or 87, 110;

262 P2d 495.

465. 110

LAW REVIEW CITATIONS: 49 OLR 302 -321; 2 EL 225 -237.

465.990

CASE CITATIONS: State v. Buck, ( 1953) 200 Or 87, 110;

262 P2d 495.

434

J

SUPERSEDED

Chapter 471

Alcoholic Liquors Generally

Chapter 471

CASE CITATIONS: Bordenelli v. United States, ( 1956) 233

F2d 120, 124; State v. Lermeny, ( 1958) 213 Or 574, 326 P2d768.

AM. GEN. OPINIONS: Federal excise tax upon state

revenues from liquor sales, 1948 -50, p 165; restrictions uponpolitical activities of employes, 1948 -50, p 313; variationsin requirements for and types of liquor licenses, 1952 -54,

p 67; restrictions upon political activities of licensees, 1954- 56, p 17; validity of conflicting city ordinance, 1950 -52, p258, 1954 -56, p 41; legislative power to delegate to citiesand counties authority to establish closing hours, 1954 -56, p 102; requirement that action on license application bebased on particular facts presented, 1956 -58, p 205; commission authority to issue regulations prohibiting gamblingdevices on licensed premises, 1956 -58, p 281; licensee aspolitical candidate, 1956 -58, p 283; determining city population for apportionment of liquor control funds, 1958 -60, p382; forwarding of fines collected under this chapter, 1960- 62, p 59; licensee offering prizes to customer, 1966 -68, p 586.

471. 005

NOTES OF DECISIONS

A club was not engaged in a " business" subject to tax

imposed by city ordinance on persons engaged in the business of operating clubs in which liquor is served under statelicense. City of Coos Bay v. Eagles Lodge, ( 1946) 179 Or83, 170 P2d 389.

471.020

AM. GEN. OPINIONS: Maintaining of " master lockers" by club licensees for sale by bottle to members, 1948 -50, P 100.

471. 025

NOTES OF DECISIONS

The definition of a sale as set forth in this section has

to be followed unless the context of the statute indicates

a different meaning. State v. Laughlin, ( 1934) 148 Or 485, 36 P2d 350.

Words " promise or obtain" in subsection ( 1) ( g) meanpromised or obtained." State v. Lermeny, ( 1958) 213 Or

574, 326 P2d 768.

Where liquor consumed by minor was ordered and paidfor by adult, there was no " sale" to the minor. State v. Laughlin, ( 1934) 148 Or 485, 36 P2d 350.

Purchaser of liquor for another person with money furnished by such person was not guilty of selling liquor without a license. State v. Lermeny, ( 1958) 213 Or 574, 326 P2d768.

ATTY. GEN. OPINIONS: Sale and purchase of warehouse

receipts for bonded whiskey, 1934 -36, p 165; validity of

435

ordinance prohibiting sale of intoxicating liquor to an Indi- an, 1950 -52, p 258.

471.030

NOTES OF DECISIONS

The Act is valid as against objection that it embraces

more than one subject and contains matters not expressed

in its title. City of Klamath Falls v. Ore. Liquor ControlComm., ( 1934) 146 Or 83, 29 P2d 564.

The Act is inapplicable to Crater Lake National Park.

Crater Lake Nat. Park Co. v. Ore. Liquor Control Comm.,

1939) 26 F Supp 363. The commission is authorized to maintain an action to

recover privilege taxes for importing beer in view of thissection, ORS 471. 040 and 471. 730 relating to powers andduties. Oregon Liquor Control Comm. v. Coe, ( 1940) 163

Or 646, 99 P2d 29.

The Liquor Control Act and 1945 c. 271, repealed, are

regulatory measures involving the exercise of the policepower with the principal purpose of regulating and controlling traffic in alcoholic liquors; the fees provided are intended primarily to defray the costs of administration andare only incidental to the main purpose. City of Coos Bayv. Eagles Lodge, ( 1946) 179 Or 83, 170 P2d 389.

A city ordinance which, based on the taxing power, taxedthe business of operating clubs, night clubs and serviceestablishments where liquor was served under a club or

service license, though invalid in the absence of authoriza-

tion by the city charter, did not conflict with the LiquorControl Act, or with I945 c. 271, repealed, which were

regulatory measures involving exercise of the police powerand imposing fees primarily to defray the costs of administration. Id.

The primary purpose of the Liquor Control Act is toregulate and control the sale and use of intoxicating liquor. Nanny v. Oregon Liquor Control Comm., ( 1946) 179 Or 274,

171 P2d 360.

FURTHER CITATIONS: Gouge v. David, ( 1948) 185 Or 437, 202 P2d 489; Van Ripper v. Ore. Liquor Control Comm.,

1961) 228 Or 581, 365 P2d 109.

AM. GEN. OPINIONS: Authority to furnish school instruction on effects of alcohol and narcotics, 193840, p 193; preventing gifts or gratuities to beer parlors and financingof beer parlors by breweries, 1940 -42, p 365; taxability ofprofits derived by the state from the sale of liquor underthe federal excise tax, 1948 -50, p 165; consumption of beerin unlicensed " shuffleboard parlor," 1948 -50, p 171; grandjury investigation of commission activities, 1950 -52, p 150; validity of ordinance prohibiting sale of intoxicating liquorto an Indian, 1950 -52, p 258; requirement that action onlicense application be based on particular facts presented,

1956 -58, p 205; authority for private party to serve liquoron unlicensed premises, 1966 -68, p 486; application of prohibition against political contributions and contributions to

candidate for district judge, ( 1970) Vol 35, p 13; authority

SUPERSEDED

471. 040

to require refundable deposit on beverage container, ( 1971)

Vol 35, p 296.

471. 040

NOTES OF DECISIONS

The commission was authorized to sue to recover privi-

lege taxes for importing beer in view of this section, ORS471. 030 and 471. 730. Oregon Liquor Control Comm. v. Coe, 1940) 163 Or 646, 99 P2d 29.

Provision that the commission may sue and be sued didnot intend to make the commission responsible for acts ofthe state or property held or used by the state, even thoughacting through the commission. Pacific Fruit & Prod. Co.

v. Ore. Liquor Control Comm., ( 1941) 41 F Supp 175. This section does not give the commission power to issue

temporary licenses to all whose applications for renewallicenses are pending on December 31. Gouge v. David, ( 1948) 185 Or 437, 202 P2d 489.

The commission has authority to aid the statute to accomplish the purpose of the Ore. Constitution. Van Ripper

v. Ore. Liquor Control Comm., ( 1961) 228 Or 581, 365 P2d

109,

FURTHER CITATIONS: Crater Lake Nat. Park Co. v. Ore.

Liquor Control Comm., ( 1938) 23 F Supp 316; Crater LakeNat, Park Co. v. Ore. Liquor Control Comm., ( 1939) 26 F

Supp 363.

ATTY. GEN. OPINIONS: Powers of commission while

challenge to validity of the Act is pending, 1932 -34, p 519; authority to put on an educational program and expendmoney therefor without further legislation, 1942 -44, p 138; authority to limit the purchases of liquor due to limitedsupply, 1942 -44, p 245; denying license in " dry zone," 1956-

58, p 205; construing " sue and be sued" in relation to torts, 1966 -68, p 117; legality of licensee selling packaged beer andwine offering prizes to customers, 1966 -68, p 586.

LAW REVIEW CITATIONS: 1 WLJ 148, 152.

471. 045

NOTES OF DECISIONS

A city ordinance which, based on the taxing power, taxedthe business of operating clubs, night clubs and serviceestablishments where liquor was served under a club or

service license, though invalid in the absence of authoriza-

tion by the city charter, did not conflict with the LiquorControl Act, or with 1945 c. 271, repealed, which were

regulatory measures involving exercise of the police powerand imposing fees primarily to defray costs of administration. City of Coos Bay v. Eagles Lodge, ( 1946) 179 Or 83, 170 P2d 389.

ATTY. GEN. OPINIONS: Ordinance prohibiting sale of liquor to Indians, 1950 -52, p 258; validity of ordinance whichis in conflict with a regulation of the commission, 195456,

p 41; authority of legislature to authorize local option elections which could establish hours for the sale of liquor

different from hours designated by the commission, 1954 -56, p 102; power of commission to prescribe special closinghours for certain licensees, 1954 -56, p 104.

471. 105

CASE CITATIONS: Gouge v. David, ( 1948) 185 Or 437, 202

P2d 489.

ATTY. GEN. OPINIONS: Authority to prorate fee for purchaser's permit, 1934 -36, p 8.

471. 115

ATTY. GEN. OPINIONS: Authority to ration sales of liquor, 1942 -44, p 245.

471. 205

NOTES OF DECISIONS

Former similar statutes prohibiting the sale of liquorswithout first having obtained a license therefor were in thenature of fiscal and police regulations, and their violation

was indictable irrespective of guilty knowledge. State v. Chastain, ( 1890) 19 Or 176, 179, 23 P 963.

Under a former similar statute, it was no defense to an

indictment for selling liquor without a license that thedefendant sold as the agent of another person. Id.

FURTHER CITATIONS: Gouge v. David, ( 1948) 185 Or 437,

202 P2d 489.

471. 210

NOTES OF DECISIONS

The words " provide for the licensing" do not give thecommission power to issue temporary licenses to all whoseapplications for renewal of licenses are pending on De- cember 31. Gouge v. David, ( 1948) 185 Or 437, 202 P2d 489.

FURTHER CITATIONS: City of Coos Bay v. Eagles Lodge, 1946) 179 Or 83, 170 P2d 389; State v. Lermeny, ( 1958) 213

Or 574, 326 P2d 768.

ATTY. GEN. OPINIONS: Requirement that action on li-

cense application be based on particular facts presented,

1956 -58, p 205; effect of city or county recommendation, 1970) Vol 35, p 25.

471.215

ATTY. GEN. OPINIONS: Authority to regulate liquorprices, 1940 -42, p 365; consumption of beer in unlicensedshuffleboard parlor," 1948 -50, p 171; licensees subject to

closing hour regulations, 1954 -56, p 104; denying license indry zone," 1956 -58, p 205.

471. 220

ATTY. GEN. OPINIONS: Regulation permitting a breweryto store and dispose of beer without paying additional fee, 1932 -34, p 635; requirement that action on license application be based on particular facts presented, 1956 -58, p205.

471. 225

ATTY. GEN. OPINIONS: Requirement that action on license application be based on particular facts presented,

1956 -58, p 205.

471.230



1956 -58, p 205.

471. 235



1956 -58, p 205; commission limitation on minimum size ofcontainer, ( 1969) Vol 34, p 842.

436

SUPERSEDED

471. 240

NOTES OF DECISIONS

Tavern owners who delivered the ultimatum that theywould not purchase beer from wholesalers if wholesalers

did not cease the practice of "off the dock" selling to publicconsumers, including sales to public consumers legal inOregon, were guilty of unreasonable restraint of interstateand foreign trade and commerce in beer. Oregon Restaurant

Beverage Assn. v. United States, ( 1970) 429 F2d 516.



1956 -58, p 205.

471.250

ATTY. GEN. OPINIONS: Commission regulation of forms

of entertainment on premises of licensees, 1950 -52, p 281; local option election prohibiting sales as not affecting stor- ing and serving, 1952 -54, p 67; construing last availablecensus figures, 1952 -54, p 248; bingo, with prizes, in licensedpremises, 1964 -66, p 328; authority of city zoning ordinanceto supersede liquor laws, ( 1970) Vol 35, p 359.

471. 260


P2d 489.

ATTY. GEN. OPINIONS: Legality of licensee offering prizesto customers,' 1966 -68, p 586; authority to require refundabledeposit on beverage container, ( 1970) Vol 35, p 296.

471. 265


P2d 489.

ATTY. GEN. OPINIONS: Applicability of the section totelevision, 1948 -50, p 170; permissible forms of entertainment, 1950 -52, p 281; gambling device on licensee' s premises, 1956 -58, p 281; authority to serve mixed wine drinks, 1966- 68, p 424.

471. 290

NOTES OF DECISIONS

The commission does not possess the power to issue a

blanket temporary license to all whose applications forrenewal of licenses are pending at midnight December 31. Gouge v. David, ( 1948) 185 Or 437, 202 P2d 489.

A receipt for payment of fee accompanying an applicationfor a renewal of a license does not constitute a license or

permit to continue activities until the commission takes

formal action upon the application. Id.

FURTHER CITATIONS: City of Coos. Bay v. Eagles Lodge, 1946) 179 Or 83, 170 P2d 389.

ATTY. GEN. OPINIONS: Storage and disposal plants as

breweries, 1932 -34, p 635; requirement that action on licenseapplication be based on particular facts presented, 1956 -58,

p 205.

471.295

NOTES OF DECISIONS

The commission has been vested with discretionarypower to grant or refuse licenses, the exercise of which will

not be reviewed by the courts unless a•clear abuse is shown. Olds v. Kirkpatrick, ( 1948) 183 Or. 105, 191 P2d 641.

471. 405

In the absence of a showing of an abuse of legal duty, a general finding that a license is not demanded by publicinterest or convenience is sufficient to inform an applicant

of the reason for the refusal of a license. Id.

After an application for a license is refused, a denial proforma is proper when no change in conditions is shown. Id.

FURTHER CITATIONS: Gouge v. David, ( 1948) 185 Or 437,

202 P2d 489.

ATTY. GEN. OPINIONS: Commission' s power to limit

number of licensees in one locality, 1932 -34, p 635; powerof commission to refuse to issue license on certain grounds,

regardless of recommendations of county court and city

council, 1934 -36,' p 218; denying license in " dry zone," 1956- 58, p 205; effect of city or county recommendation, ( 1970) Vol 35, p 25.

471. 301

NOTES OF DECISIONS

The commission does not possess the power to issue a

blanket temporary license to all whose applications forrenewal licenses are pending at midnight December 31. Gouge v. David, ( 1948) 185 Or 437, 202 P2d 489.

A receipt for payment of fee accompanying an applicationfor a renewal of a license does not constitute a license orpermit to continue activities until the commission takes

formal action upon the application. Id.

ATTY. GEN. OPINIONS: Surviving member of a partnership continuing operation under partnership license, 1942- 44, p 440; effect of city or county recommendation, ( 1970) Vol 35, p 25.

471.315

NOTES OF DECISIONS

Suspension of a license because an employe was convict-

ed of a misdemeanor for the sale of spirituous liquor on

the premises was not an abuse of discretion. Perry v. Ore. Liquor Control Comm., ( 1947) 180 Or 495, 177 P2d 406.

There was no abuse of discretion by the commission inrevoking a license where licensees did not disclose policerecord of larcenies in application. Hart v. Ore. Liquor Con-

trol Comm., ( 1947) 181 Or 406, 182 P2d 364.

The commission did not abuse its discretion in revokinga license for the sale of liquor to persons under 21, where

the testimony was conflicting. Casciato v. Ore. Liquor Con- trol. Comm., ( 1947) 181 Or 707, 185 P2d 246.

ATTY. GEN. OPINIONS: Gambling device on licensee' spremises, 1956 -58, p 281.


471. 340

ATTY. GEN. OPINIONS: Authority to serve mixed winedrinks, 1966 -68, p 424.

471. 405

NOTES OF DECISIONS

1. Under former simllar' statute

Sale of two packages of liquor to same person at different

times constituted separate offenses. State v. Newlin, ( 1919) 92 Or 597, 182 P 135.

A• complaid was not demurrable for failing to allegeknowledge of possession on the part of accused. State v. Bunke, ( 1925) 113 Or 523, 233 P 538.

437

SUPERSEDED

471. 410

The mere taking of a drink of liquor, after which thebottle was returned to the owner, was not " possession." State v. Williams, ( 1926) 117 Or 238, 243 P 563.

Before a complete case of unlawful possession of intoxi-

cating liquor could be made, it was necessary not only toprove actual or constructive possession, but also that ac-

cused had knowledge thereof. State v. Muetzel, ( 1927) 121

Or 561, 254 P 1010.

A former conviction for sale of liquor did not render

available the plea of former jeopardy in a prosecution forunlawfully possessing the same liquor. State v. Nodine, 1927) 121 Or 567, 256 P 387.

Former jeopardy was not involved where one convictedin a municipal court for violation of an ordinance was also

charged in the same court with violating state laws. Clay- pool v. McCauley, ( 1929) 131 Or 371, 283 P 751.

2. In general

Gratuitous procurement of liquor for another person does

not violate this section. State v. Lermeny, ( 1958) 213 Or574, 326 P2d 768.

Indictment charging unlawful sale of liquor was sufficient. State v. Cook, ( 1936) 154 Or 62, 58 P2d 249.

Information, following the language of the statute, charging an unlawful sale of liquor was sufficient. Statev. Pearlman, ( 1936) 154 Or 52, 58 P2d 1253.

Where whiskey was stolen in California, brought intoOregon, and then confiscated by the liquor commission, theowner had a cause of action in replevin against the com-

mission when the commission refused to return the propertyto the owner after he had established his ownership. Nannyv. Ore. Liquor Control Comm., ( 1946) 179 Or 274, 171 P2d

360.

FURTHER CITATIONS: Hart v. Ore. Liquor Control

Comm., ( 1947) 181 Or 406, 182 P2d 364; Gouge v. David, 1948) 185 Or 437, 202 P2d 489; State v. Waterhouse, ( 1957)

209 Or 424, 309 P2d 327.

ATTY. GEN. OPINIONS: Maintaining of " master lockers" by club licensees for sale by bottle to members, 1948 -50, p 100; application to a licensed tavern, 1950 -52, p 278.

471. 410

NOTES OF DECISIONS

1. In general

The sale of liquor to a minor is a crime irrespective of

seller' s motive or knowledge as to buyer's minority. Statev. Raper, ( 1944) 174 Or 252, 149 P2d 165.

If the act of giving intoxicating liquor to a person under21 is accompanied by circumstances that tend to cause orcauses the minor to become a delinquent child the crimeunder subsection ( 2) is made out. State v. Gordineer, ( 1961)

229 Or 105, 366 P2d 161.

The act of giving intoxicating liquor to a person under21 is, in itself, regardless of consequences, a crime under

the first part of this section. Id.

This section is intended to protect minors from the evilsof alcohol and was not ( when applied with ORS 471. 620)

intended to protect the public from injuries caused by intoxicated minors. Weiner v. Gamma Phi Chap. of AlphaTau Omega Fraternity, ( 1971) 258 Or 632, 485 P2d 18.

2. Under former similar statute

The seller' s honest belief, after inquiry, that purchaserwas an adult did not exonerate him from liability. Statev. Gulley, ( 1902) 41 Or 318, 70 P 385.

A person who bought beer with a minor' s money andgave it to the minor violated law forbidding the sale orgift of intoxicating liquor to minors. State v. Gear, ( 1914) 72 Or 501, 143 P 890.

Under law prohibiting the sale of liquor to minors, thesaloon keeper was guilty although the sale was made duringhis absence by his bartender. State v. Brown, ( 1914) 73 Or325, 144 P 444.

ATTY. GEN. OPINIONS: Prohibition against sale to Indian,

1950 -52, p 258; right to a preliminary hearing on a chargeof furnishing liquor to a minor, ( 1971) Vol 35, p 764.


471. 420

ATTY. GEN. OPINIONS: Construing prohibition againstany services for political candidate on licensed premises, 1950 -52, p 278; licensees' right to oppose or support measures on the ballot, to be candidates for public office, and

to engage in political discussions, 1954 -56, p 17; licenseeserving on committee of candidate for political office, 1956 -58, p 283; legality of licensee advertising in politicalparty magazine, 196466, p 360; licensee serving politicalcommittee on premises, 1966 -68, p 606; candidate for districtjudge as a political candidate, ( 1970) Vol 35, p 13.

It19,K11

NOTES OF DECISIONS

Prior to the 1963 amendment, offering alcoholic drink forimmediate consumption did not place the person acceptingthe drink in illegal possession. State v. Gordineer, ( 1961)

229 Or 105, 366 P2d 161.

Possession of alcohol must be coupled with full control

with the right to enjoy its consumption to the exclusionof others. Id.


471.440

NOTES OF DECISIONS


Manufacture meant to produce, irrespective of quantityor intended use. State v. Marastoni, ( 1917) 85 Or 37, 165P 1 177.

A person not in actual possession of mash could be con-

victed of possession where his accomplice was in actual

possession pursuant to a common design. State v. Brown,

1925) 113 Or 149, 231 P 926.

Law prohibiting possession of " mash," " wort," and

wash" fit for manufacture of liquor was not unconstitutional as too extreme an exercise of police power. Pack v.

State, ( 1925) 116 Or 416, 241 P 390.

Statute forbidding operation of distillery was not invalid. State v. Eaton, ( 1926) 119 Or 613, 250 P 233.

FURTHER CITATIONS: State v. Jennings, ( 1929) 131 Or

455, 282 P 560; State v. Broom, ( 1930) 132 Or 363, 285 P

817; State v. Duffy, ( 1931) 135 Or 290, 295 P 953.

471.452

NOTES OF DECISIONS

Tavern owners who delivered the ultimatum that theywould not purchase beer from wholesalers if wholesalers

did not cease the practice of " off the dock" selling to publicconsumers, including sales to public consumers legal inOregon, were guilty of unreasonable restraint of interstateand foreign trade and commerce in beer. Oregon Restaurant

Beverage Assn. v. United States, ( 1970) 429 F2d 516.

438

1

SUPERSEDED

471.475

ATTY. GEN. OPINIONS: Authority for private party toserve liquor on unlicensed premises, 1966 -68, p 486.

471.505 to 471. 560

ATTY. GEN. OPINIONS: Effect of "yes" vote on other sales

in election on one class of alcoholic liquor in city alreadydry, 1960 -62, p 166.

471. 505

NOTES OF DECISIONS

1. Under former simllar statute

The observance of all statutory requirements in conducting local option elections was essential to their validity. Marsden v. Harlocker, ( 1906) 48 Or 90, 85 P 328, 120 Am

St Rep 786. The validity of a local option election being directly as-

sailed, the statutory provisions were less liberally construedthan if attacked indirectly. State v. Billups, ( 1912) 63 Or277, 278, 127 P 686, 48 LRA( NS) 308.

FURTHER CITATIONS: State v. Langley, ( 1958) 214 Or 445, 315 P2d 560, 323 P2d 301; Boyle v. City of Bend, ( 1963) 234Or 91, 380 P2d 625.

ATTY. GEN. OPINIONS: Effect of affirmative vote on eachof three propositions submitted under local option provi-

sions, 1934 -36, p 129; effect of local option law prohibitingonly one phase of licensed activities, 1952 -54, p 67; dry zonesestablished by commission as contrary to local option law, 1956 -58, p 205; effect of election upon classes not specificallyconsidered, 1960 -62, p 166.

471.510

CASE CITATIONS: State v. Edmunds, ( 1909) 55 Or 236, 104

P 430; State v. Runyon, ( 1912) 62 Or 246, 124 P 259.

ATTY. GEN. OPINIONS: " Dry zones" created by commission, 1956 -58, p 205.

471.530

ATTY. GEN. OPINIONS: County clerk' s authority to refuseto file petition containing the words " intoxicating liquor" instead of " alcoholic liquor," 1940 -42, p 88; effect of " yes" vote on other sales in election on one class of alcoholic

liquor in city " already dry," 1960 -62, p 166.

471.556

ATTY. GEN. OPINIONS: Printing questions of local optionon general election ballots, 1946 -48,. p 38; effect of " yes" vote on other sales in election on one class of alcoholic

liquor in city " already dry," 1960 -62, p 166.

471.605

CASE CITATIONS: Watts v. Gerking, ( 1924) 111 Or 641, 222 P 318, 228 P 135, 34 ALR 1489; Gouge v. David, ( 1948)

185 Or 437, 202 P2d 489; State v. Langley, ( 1958) 214 Or445, 315 P2d 560, 323 P2d 301.

ATTY. GEN. OPINIONS: Availability of in rem proceedingagainst places where nuisances exist, 1964 -66, p 132.

471. 670

471.610

CASE CITATIONS: State v. Elkins, ( 1959) 216 Or 509, 339

P2d 715; State v. Gould, ( 1966) 244 Or 354, 418 P2d 262.

471.620

NOTES OF DECISIONS

In an action against one who has created a public nuisance, plaintiff must show his injuries are within the general

class of harms which the nuisance statute aims to prevent.

Weiner v. Gamma Phi Chap. of Alpha Tau Omega Frater- nity, ( 1971) 258 Or 632, 485 P2d 18.

Indictment in the exact language of the statute was demurrable since it did not inform the accused in what re-

spects their acts were illegal. State v. Elkins, ( 1959) 216 Or509, 339 P2d' 715.

FURTHER CITATIONS: State v. Hoffman, (1917) 85 Or 276,

166 P 765, 1 ALR 1683; State v. 1920 Studebaker TouringCar, ( 1927) 120 Or 254, 251 P 701, 50 ALR 81.

ATTY. GEN. OPINIONS: Selling soft drinks knowing theywill be mixed with alcoholic liquor and consumed on the

premises, not licensed, as maintaining a common nuisance, 1946 -48, p 477; authority for private party to serve liquoron unlicensed premises, 1966 -68, p 486.

471.630


471.660

CASE CITATIONS: State v. De Ford, ( 1927) 120 Or 444,

250 P 220; State v. Christensen, ( 1935) 151 Or 529, 51 P2d

835; State v. Hoover, ( 1959) 219 Or 288, 347 P2d 69, 89 ALR

2d 695.

ATTY. GEN. OPINIONS: Hearing preceding forfeiture ofautomobile affording an opportunity to be heard by anyclaimants, 1946 -48, p 57; duties as to this section of peaceofficer appointed specifically for another purpose, 1950 -52, p 120.


471. 665

CASE CITATIONS: State v. 1920 Studebaker Touring Car, 1927) 120 Or 254, 251 P 701, 50 ALR 81.

ATTY. GEN. OPINIONS: Unlawfully imported alcoholicliquor, abandoned by owner, delivered by the sheriff seizingit to the commission although no conviction has been ob-

tained, 1942 -44, p 454.


471.670

NOTES OF DECISIONS

The allowance of a claim by the county court againstthe enforcement fund rested upon the exercise of discretion,

and a peremptory writ of mandamus could not require thecourt to allow it. Linklater v. Nyberg, ( 1963) 234 Or 117, 380 P2d 631.

ATTY. GEN. OPINIONS: Duty of county court as to examination and verification of claims as to form against fundprovided for in statute, and power to approve or reject

claims, 1934 -36, p 773; authority of district attorney to ap-

439

SUPERSEDED

471. 680

prove claims against the liquor enforcement fund of the

county, 1946 -48, p 145; conflict with subsequent statutedirecting payment to state and county treasurers, 1960 -62, p 59; application of Local Budget Law to Liquor Enforce- ment Fund, 1966 -68, p 28; authority to allow claims subjectto audit, ( 1970) Vol 34, p 977.

471. 680

NOTES OF DECISIONS

An information for unlawfully selling liquor is sufficientif it follows the language of the statute. State v. Pearlman,

1936) 154 Or 52, 58 P2d 1253.

471. 705

NOTES OF DECISIONS

The liquor commission is not a corporation; it is a gov-

ernmental or administrative body and, as such, an alter egoof the state. Pacific Fruit and Prod. Co. v. Ore. LiquorControl Comm., ( 1941) 41 F Supp 175.

FURTHER CITATIONS: Van Ripper v. Ore. Liquor Control

Comm., ( 1961) 228 Or 581, 365 P2d 109.

ATTY. GEN. OPINIONS: Propriety of investigation of theliquor commission by a grand jury, 1950 -52, p 150; markingof automobiles used by commission, 1952 -54, p 192; distribution of funds after 1967 amendment, 1966 -68, p 312.

471. 710

ATTY. GEN. OPINIONS: Authority of grand jury to inves- tigate commission, 1950 -52, p 150.

471. 720

CASE CITATIONS: Oregon Liquor Comm. v. Coe, ( 1940) 163 Or 646, 99 P2d 29.

ATTY. GEN. OPINIONS: Attorney and administrator forcommission as employes, 1940 -42, p 81; payment of attorneywithout the Attorney General' s approval, 1948 -50, p 134; commission reports as public record, 1948 -50, p 186; rightof employes of commission to vote on initiative, referendum

and recall petition, 1948 -50, p 313; right of agent of liquorcommission to seek political office, 1952 -54, p 228; effecton this section of the creation of a Department of Justice,

1954 -56, p 39; fiscal year of commission, 1966 -68, p 312.

471. 725

CASE CITATIONS: State Hwy. Comm. v. Rawson, ( 1957) 210 Or 593, 616, 312 P2d 849.

ATTY. GEN. OPINIONS: Paying premium on liability policies covering privately owned equipment operated by employes, 1938 -40, p 747; executing insurance policies coveringpublic liability for accidents occurring in state liquor stores, 1940 -42, p 20; purchasing plate glass insurance againstdamage other than fire, 194042, p 257; placing additionalinsurance on buildings where the State Restoration Fund

is depleted, 1942 -44, p 65; Secretary of State auditing anddrawing warrants in payment of purchases of liquor by thecommission for future delivery, 1942 -44, p 222; purchasingreal property outside the state, 1942 -44, pp 270, 344; Depart- ment of Agriculture's discretion in conduct of the state fair

controlled by this section, 1942 -44, p 354.

471.730

NOTES OF DECISIONS

The commission -was authorized to sue to recover privi-

lege taxes for importing beer in view of this section, ORS471. 030 and 471. 040. Oregon Liquor Control Comm. v. Coe, 1940) 163 Or 646, 99 P2d 29.

The commission has general power to enforce the provi-

sions of the Liquor Control Act. Pacific Fruit & Prod. Co.

v. Ore. Liquor Control Comm., ( 1941) 41 F Supp 175. A regulation making the licensee responsible for the " act

or omission of any servant, agent, employe or represen-

tative" is reasonable. Perry v. Ore. Liquor Control Comm., 1947) 180' Or 495, 177 P2d 406.

The commission cannot issue temporary licenses valid forthe period in which the commission has a renewal application under consideration. Gouge v. David, ( 1948) 185 Or

437, 202 P2d 489.

The word " permit" refers not to a vendor's permit, but

to a purchaser' s permit. Id.

The commission has authority to make regulations to aidthe statute to accomplish the purpose of the Ore. Constitu- tion. Van Ripper v. Ore. Liquor Control Comm., ( 1961) 228

Or 581, 365 P2d 109.

The cooking and serving of food is an important featureof any business authorized to be licensed. Id.

FURTHER CITATIONS: City of Coos Bay v. Eagles Lodge, 1946) 179 Or 83, 170 P2d 389; State ex rel. Nilsen v. Whited,

1964) 239 Or 149, 396 P2d 758; Oregon Newspaper Publish- ers Assn. v. Peterson, ( 1966) 244 Or 116, 415 P2d 21.

ATTY. GEN. OPINIONS: Power to refuse license notwith-

standing county court and city council recommendations,

1934 -36, p 218; fixing and regulating prices of liquor, 1940 -42, p 365; authority to pay outstanding claims in purchase ofdistillery, 1948 -50, p 134; implied authority to license maltbeverage sales at sporting events, 1950 -52, p 281; validityof ordinance which is in conflict with a regulation of the

commission, 195456, p 41; authority to establish closinghours, 195456, p 104; legality of licensee selling packagedbeer and wine offering prizes to customers, 1966 -68, p 586; authority to require refundable deposit on beverage container, ( 1970) Vol 35, p 296.

471.740

NOTES OF DECISIONS

Where whiskey was stolen in California, brought intoOregon, and then confiscated by the commission, the ownerhad a cause of action in replevin against the commission

when the commission refused to return the property to theowner after he had established his ownership thereof. Nanny v. Ore. Liquor Control Comm., ( 1946) 179 Or 274,

171 P2d 360.

FURTHER CITATIONS: City of Coos Bay v. Eagles Lodge, 1946) 179 Or 83, 170 P2d 389.

ATTY. GEN. OPINIONS: Authority of commission to purchase equipment and supplies, 1932 -34, p 526; sale of liquorby clubs maintaining "master lockers," 1948 -50, p 100; agentfor sale of liquor as independent contractor, 1952 -54, p 228.

471. 745

ATTY. GEN. OPINIONS: Regulating prices of liquor, 1940- 42, p 365; authority to require refundable deposit on beverage container, ( 1970) Vol 35, p 296.

440

is

SUPERSEDED

471. 750

ATTY. GEN. OPINIONS: Permitting persons to purchaseliquor outside the state and having it shipped to them incare of the commission' s warehouses, 1942 -44, p 245; construing authority to employ agents, 1960 -62, p 425.

471. 755

CASE CITATIONS: Gouge v. David, ( 1948) 185 Or 437, 202P2d 489.

AM. GEN. OPINIONS: Authority of county clerks tocollect fees for recording regulations, 1932 -34, p 593.

471. 760


P2d 489; State ex rel. Thornton v. Williams, ( 1959) 215 Or639, 336 P2d 68.

471. 770


471. 780

AM. GEN. OPINIONS: Distribution of funds after 1967

amendment, 1966 -68, p 311

471. 790

ATTY. GEN. OPINIONS: Immunity of commissioners fromsuit generally, 1966 -68, p 117.

471. 990

471.805

CASE CITATIONS: Pacific Fruit & Prod. Co. v. Ore. Liquor

Control Comm., ( 1941) 41 F Supp 175.

AM. GEN. OPINIONS: Operation of 1967 amendment,

1966 -68, p 312.

471. 810

ATTY. GEN. OPINIONS: Distribution to city followingelection authorizing its disincorporation, 1948 -50, p 458; determining population of city for purposes of establishingshare in distribution, 1956 -58, p, 136; constitutionality ofprovision to distribute funds to cities, 1958 -60, p 338; population determined by supplemental certificate, 1958 -60, p382; use of revised certificate of census board in distribution

of funds, 1960 -62, p 153; use of revenues for relief to indigents, 1962 -64, p 301; crediting funds to State Census Ac- count after July 1, 1963, 196466, p 246; operation of 1967amendment, 1966 -68, p 312; purpose for which county mayspend funds, 1966 -68, p 571; apportionment of funds collected before but distributed after 1969 amendment, ( 1969)

Vol 34, p 719.

471.990

CASE CITATIONS: State v. Waterhouse, ( 1957) 209 Or 424, 309 P2d 327.

ATTY. GEN. OPINIONS: Right to a preliminary hearingon a charge of furnishing liquor to a minor, ( 1970) Vol 35, p 764.

441

SUPERSEDED

Chapter 472

Sale of Alcoholic Liquor by Individual Drink

Chapter 472

CASE CITATIONS: Van Ripper v. Ore. Liquor Control

Comm., ( 1961) 228 Or 581, 365 P2d 109; Oregon Newspaper

Publishers Assn. v. Peterson, ( 1966) 244 Or 116, 415 P2d 21;

State ex rel. Nilsen v. Whited, ( 1964) 239 Or 149, 396 P2d

758.

ATTY. GEN. OPINIONS: This chapter as exercise of police

power, 1952 -54, p 78; effect of conflicting local electionresults under this chapter, 1952 -54, p 223; licensee as political candidate, 1954 -56, p 17; this chapter as comprehensiveregulatory statute, 1954 -56, p 41; legislative delegation tocities and counties of power to set closing hours, 1954 -56, p 102; disposing of fines collected under this chapter, 1960- 62, p 60, 1966 -68, p 28; legislative intent as to this chapterand chapter 471, 1966 -68, p 486; legality of licensee sellingpackaged beer and wine offering prizes to customers, 1966 -68, p 586; defining " guests ", ( 1970) Vol 34, p 1165; authority of city zoning ordinance to supersede liquor laws,

1970) Vol 35, p 359.

472.010


Comm., ( 1961) 228 Or 581, 365 P2d 109.

AM. GEN. OPINIONS: Construing " guests" under ClassC license, ( 1970) Vol 34, p 1165; defining " commercial establishments", ( 1970) Vol 35, p 359.

472.030


Comm., ( 1961) 228 Or 581, 365 P2d 109; Oregon Newspaper

Publishers Assn. v. Peterson, ( 1966) 244 Or 116, 415 P2d 21.

ATTY. GEN. OPINIONS: Primary purpose as regulation ofalcoholic liquor, 1952 -54, p 78; authority for private partyto serve liquor on unlicensed premises, 1966 -68, p 486.

472.040

AM. GEN. OPINIONS: Dispensers as licensed by the staterather than by municipalities, 1952 -54, p 223; validity ofordinance which is in conflict with a regulation of the

commission, 1954 -56, p 41; authority of legislature to authorize local option elections which could establish hours for

the sale of liquor different from hours designated by thecommission, 1954 -56, p 102; power of commission to prescribe special closing hours for certain licensees, 1954 -56, p 104; authority of city zoning ordinance to supersede liquorlaws, ( 1970) Vol 35, p 359.

472.060

NOTES OF DECISIONS

The commission has authority to make regulations to aidthe statute to accomplish the purpose of the Oregon Con-

stitution. Van Ripper v. Ore. Liquor Control Comm., ( 1961)

228 Or 581, 365 P2d 109.

The cooking and serving of food is an important featureof any business authorized to be licensed. Id.

FURTHER CITATIONS: Oregon Newspaper Publishers

Assn. v. Peterson, ( 1966) 244 Or 116, 415 P2d 21.

AM'. GEN. OPINIONS: Commission' s authority to setclosing hours, 1954 -56, p 104.

472. 110


Comm., ( 1961) 228 Or 581, 365 P2d 109; State ex rel. Nilsen

v. Whited, ( 1964) 239 Or 149, 396 P2d 758.

AM. GEN. OPINIONS: Use of federal census estimates,

1952 -54, p 248; validity of proposed amendment to thissection which authorized sale of liquor by the glass incommercial aircraft, 1954 -56, p 76; gambling device on licensee's premises, 1956 -58, p 281; authority to serve mixedwine drinks, 1966 -68, p 424; authority for private party toserve liquor on unlicensed premises, 1966 -68, p 486; construing " Guests" under Class C license, ( 1970) Vol 34, p1165; effect of local zoning upon eligibility for license, (1970) Vol 35, p 359.

472. 120

AM. GEN. OPINIONS: Authority of city zoning ordinanceto supersede liquor laws, ( 1970) Vol 35, p 359.

472. 141

CASE CITATIONS: State ex rel. Nilsen v. Whited, ( 1964) 239 Or 149, 396 P2d 758.

472. 160

ATTY. GEN. OPINIONS: Authority of city zoning ordinanceto supersede liquor laws, ( 1970) Vol 35, p 359.

472. 180

AM. GEN. OPINIONS: Gambling device on licensee' spremises, 1956 -58, p 281.

472. 189


Comm., ( 1961) 228 Or 581, 365 P2d 109.

472.310

CASE CITATIONS: State v. Elkins et al, ( 1959) 216 Or 509, 339 P2d 715.

ATTY. GEN. OPINIONS: Licensees' right to oppose or sup-

442

SUPERSEDED

port measures on the ballot, to be candidates for public

office and to engage in political discussions, 1954 -56, p 17; legality of licensee advertising in political party magazine, 1964 -66, p 360.

472.320

ATTY. GEN. OPINIONS: Reconciliation of conflict with

ORS 156.650, 1960- 62, p 59; application of Local Budget Lawto Liquor Enforcement Fund, 1966 -68, p 28.

472.410 to 472.500

ATfY. GEN. OPINIONS: Authority of city zoning ordinanceto supersede liquor laws, ( 1970) Vol 35, p 359.

472.410

ATPY. GEN. OPINIONS: Conflicting results in city andcounty local option elections on same day, 1952 -54, p 223.

443

472.470

472.420

ATTY. GEN. OPINIONS: Legislative power to establish

general elections on local levels, 1952 -54, p 220.

472.430

A=. GEN. OPINIONS: Purpose of local determination of

liquor by the drink, 1952 -54, p 223.

472.450

ATfY. GEN. OPINIONS: Purpose of local determination of


472.470

ATTY. GEN. OPINIONS: Purpose of local determination of


SUPERSEDED

Chapter 473

Liquor Manufacturing and Importing Tax

Chapter 473

ATTY. GEN. OPINIONS: Licensee as political candidate,

1954 -56, p 17; population basis for apportionment of funds, 1958 -60, p 382; legality of licensee selling packaged beer andwine offering prizes to customers, 1966 -68, p 586.

473.010

CASE CITATIONS: Liquor. Control Comm. v. Coe, ( 1940) 163 Or 646, 99 P2d 29.

ATTY. GEN. OPINIONS: Taxing privilege of doing businessas measured by sales volume, 1932 -34, p 628.

473.020

ATTY. GEN. OPINIONS: Authority to- clarify ambiguousprovisions and prescribe conditions of regulation and con-

trol, 1950 -52, p 281.

473.030

NOTES OF DECISIONS

The federal court has no jurisdiction of an action for an

interlocutory injunction to enjoin the enforcement of theOregon Liquor Revenue Act where the only jurisdictionalallegation is that " the complainant' s purchase of beer from

time to time for resale will amount to a sum in excess of3000." Crater Lake Nat. Park Co. v. Ore. Liquor Control

Comm., ( 1938) 23 F Supp 316. The word " importing," as used in this provision, is to

be given its customary meaning; it means the bringing ofmerchandise into the state from some point outside the

state, as opposed to the exporting of merchandise from thestate. Liquor Control Comm. v. Anderson Food Markets,

1939) 160 Or 646, 87 P2d 206.

Commission' s complaint seeking recovery of privilegetaxes was not required to state defensive matters. Liquor

Control Comm. v. Coe, ( 1940) 163 Or 646, 99 P2d 29.

The sufficiency of the commission' s complaint was notaffected by the fact that defendants were not liable to paytax on some of the beer imported. Id.

Purchasers of beer manufactured in Washington which

had been brought into Oregon by the seller and thereafterdelivered to the purchasers in Washington were not subject

to the privilege tax for importing beer again into Oregon. Id.

FURTHER CITATIONS: Pacific Fruit & Prod. Co. v. Ore.

Liquor Control Comm., ( 1941) 41 F Supp 175; City of CoosBay v. Eagles Lodge, ( 1946) 179 Or 83, 170 P2d 389.

473.050

CASE CITATIONS: Liquor Control Comm. v. Coe, ( 1940)

163 Or 646, 99 P2d 29.

473. 120

NOTES OF DECISIONS

The commission is authorized to maintain an action to

recover privilege taxes. Liquor Control Comm. v. Coe, 1940) 163 Or 646, 99 P2d 29.

The commission may employ private counsel to prosecutean action to collect privilege taxes on imported beer. Id.

473. 190

NOTES OF DECISIONS

Before the 1949 amendment, the provision prohibiting acity from imposing a tax in connection with the production, sale or handling of alcoholic or malt beverages was statewide in its scope and prevailed over any charter provisionor city ordinance which was in direct conflict therewith. City of Coos Bay v. Eagles Lodge, ( 1946) 179 Or 83, 170P2d 389.

ATTY. GEN. OPINIONS: A city which has prohibited thesale of alcoholic liquor containing over four percent ofalcohol by weight as entitled to receive its proportionateshare of revenues derived from the privilege tax on thedistribution and manufacture of alcoholic liquor, 1944 -46,

p 112; finality of census taken under the supervision of theSecretary of State, 1946 -48, p 439; limitation on use of liquorfunds, 1946 -48, p 452; right of disincorporated city to receivea pro rata share of liquor revenues, 1948 -50, p 458; population determination on special federal census, 1952 -54, p 189; population determined by supplemental certificate, 1958 -60, p 382; use of revised certificate of census board in distribution of funds, 1960 -62, p 153; operation of 1967 amendment, 1966 -68, p 312; effect of 1967 amendment for distributionof revenues, 1966 -68, p 571.


444

C J

SUPERSEDED

r u

Chapter 474

Uniform Narcotic Drug Act

Chapter 474

NOTES OF DECISIONSThis chapter should be given a sensible construction-

according to the fair import of its terms, with a view toeffect the object of regulating and controlling traffic innarcotic drugs. State v. Livingston, ( 1970) 2 Or App 587, 469 P2d 632.

FURTHER CITATIONS: Gleason et al v. Thornton, ( 1957)

210 Or 666, 313 P2d 776, State v. Powell, ( 1958) 212 Or 684,

321 P2d 333.

ATTY. GEN. OPINIONS: Requiring prescription records, 1958 -60, p 50.

474.010

NOTES OF DECISIONS

Numorphan comes within the definition of opium. State

v. Livingston, ( 1970) 2 Or App 587, 469 P2d 632.

FURTHER CITATIONS: State v. Layne, ( 1966) 244 Or 510,

419 P2d 35; State v. Varney, ( 1966) 244 Or 583, 419 P2d 430; State v. Lippanen, ( 1969) 252 Or 352, 449 P2d 447; State v.

Rutherford, ( 1970) 4 Or App 164, 477 P2d 911, Sup Ct reviewdenied.

ATTY. GEN. OPINIONS: Definition of " physician" as in-

cluding unlicensed physicians, 1948 -50, p 334; violationsinvolving narcotic drug committed by juveniles as crimes, 1962 -64, p 243.

474.030

CASE CITATIONS: State v. Brown, ( 1970) 1 Or App 322, 461 P2d 836, Sup Ct review denied; State v. Rutherford,

1970) 4 Or App 164, 477 P2d 911, Sup Ct review denied.

ATTY. GEN. OPINIONS: Discretion to issue a license to

produce, prepare or supply narcotic drugs, 194042, p 218; unlicensed growing of poppies for production of seed tobe used by bakeries as unlawful, 1940 -42, p 628.

474.060

CASE CITATIONS: State v. Powell, ( 1958) 212 Or 684, 321P2d 333.

ATTY. GEN. OPINIONS: Authority of Oregon Board ofPharmacy to remove forged prescriptions from drug storefiles, 1958 -60, p 50.

474.090

CASE CITATIONS: State v. Jones, ( 1889) 18 Or 256, 22 P840; State v. Powell, ( 1958) 212 Or 684, 321 P2d 333.

474. 100

CASE CITATIONS: State v. Powell, ( 1958) 212 Or 684, 321

P2d 333.

474. 130

CASE CITATIONS: State v. Hartman, ( 1971) 5 Or App 156, 483 02d 107.

474. 140

CASE CITATIONS: State v. Johnson, ( 1962) 232 Or 118, 374P2d 481.

474. 160

ATTY. GEN. OPINIONS: Authority of Oregon Board ofPharmacy to remove forged prescriptions from drug storefiles, 1958 -60, p 50.

474. 190

ATTY. GEN. OPINIONS: Issuance of license as affected byduty to cooperate with Federal Government in narcoticdrug control, 1940 -42, p 218.

474.990

NOTES OF DECISIONS

The sentence imposed under subsection ( 1) did not constitute cruel and unusual punishment. State v. James, ( 1970)

3 Or App 539, 474 P2d 779, Sup Ct review denied.

FURTHER CITATIONS: State v. Powell, ( 1958) 212 Or 684,

321 P2d 333; State v. Chilton, (1970) 1 Or App 593, 465 P2d495; State v. Rutherford, ( 1970) 4 Or App 164, 477 P2d 911, Sup Ct review denied; State v. Hartman, ( 1971) 5 Or App156, 483 P2d 107.

445

SUPERSEDED

Chapter 475

Narcotic and Dangerous Drugs

Chapter 475

CASE CITATIONS: State v. Powell, ( 1958) 212 Or 684, 321

P2d 333.

ATTY. GEN. OPINIONS: Authority of State Board of Phar- macy to remove forged prescriptions from drug store files, 1958 -60, p 50.

475.010

NOTES OF DECISIONS

Subsection ( 1) was not an unconstitutional delegation of

legislative authority or a denial of due process of law. Statev. Sargent, ( 1969) 252 Or 579, 449 P2d 845.

FURTHER CITATIONS: Gortmaker v. Seaton, ( 1969) 252Or 440, 450 P2d 547.

475. 100

NOTES OF DECISIONS

The evidence was not sufficient to support an inferencethat defendant was in constructive possession. State v.

Chandler, ( 1970) 2 Or App 107, 467 P2d 127.

FURTHER CITATIONS: State v. Powell, ( 1958) 212 Or 684, 321 P2d 333; State v. LeBrun, ( 1966) 245 Or 265, 419 P2d

948; State v. Cartwright, ( 1966) 246 Or 120, 418 P2d 822; State v. Oare, ( 1968) 249 Or 597, 439 P2d 885; State v. Sar-

gent, ( 1969) 252 Or 579, 449 P2d 845; State v. Nasholm ( 1970)

2 Or App 385, 467 P2d 647, Sup Ct review denied; Statev. Keffer ( 1970) 2 Or App 559, 470 P2d 381; State v. Dodd,

1971) 4 Or App 371, 479 P2d 243.

ATTY. GEN. OPINIONS: Authority of Oregon Board ofPharmacy to remove forged prescriptions from drug storefiles, 1958 -60, p 50; violation by juvenile as a crime to bereported to the central bureau of criminal identification,

1962 -64, p 243.


475. 150

NOTES OF DECISIONS

Immunity from prosecution created by subsection ( 3) applied to the police agent witness and he was not an

accomplice. State v. Folsom, ( 1970) 1 Or App 404, 463 P2d381.

475.655

CASE CITATIONS: Cutchlow v. United States, ( 1962) 301

F2d 295.

475.990

CASE CITATIONS: State v. Powell, ( 1958) 212 Or 684, 321P2d 333.

446

SUPERSEDED

r

lL__.A

Chapter 476

State Fire Marshal; Protection from Fire Generally

Chapter 476

AM. GEN. OPINIONS: Legislative intent for comprehen-

sive fire protection without overlapping functions or doubleburdens, 1958 -60, p 215; adoption of fire protection code, 1958 -60, p 265.

476.020

ATTY. GEN. OPINIONS: Authority of the Governor toappoint as fire marshal a person other than the insurance

commissioner, 1934 -36, p 275; legislator as State Fire Mar- shal, 1962 -64, p 228.

476.030

ATTY. GEN. OPINIONS: Prohibition of fireworks sale,

1920 -22, p 579; crude petroleum as within purview of statute, 1920 -22, p 634; fire- escape duties of marshal, 1928 -30, p 333; combustibles storage and use, 1930 -32, p 236; violators offire marshal' s rules as to explosives as subject to Civilian

Defense Act, 1942 -44, p 210; preliminary order to complyas prerequisite to closing order, 1948 -50, p 439; authorityto pass upon validity of a city ordinance, 1950 -52, p 327; requirement of augmenting order of fire marshal with courtorder, 1950 -52, p 369; authority of State Fire Marshal toregulate the sale of fireworks, 1964 -66, p 206; authority ofrural fire protection district to regulate or prohibit sparklers,

1964 -66, p 226; appeal of order made under this section, 1966 -68, p 264; relative jurisdiction of rural fire protectiondistricts and regional air quality authority, 1966 -68, p 558; duty of local fire officers to enforce state law, 1966 -68, p588; fire regulations for foster homes, 1966 -68, p 625; dutyof fire or water districts to provide fire protection, ( 1970)

Vol 35, p 227.


476.035

ATTY. GEN. OPINIONS: Responsibility of board membersfor faulty recommendations, duty to hold a hearing, 1966 -68, p 264.

476.040

ATTY. GEN. OPINIONS: Authority of fire marshal to employ attorneys, 1920 -22, p 360.

476.050

ATTY. GEN. OPINIONS: Authority to expend funds forbenefit of fire marshal' s department, 1938 -40, p 299.

47 &055

ATTY. GEN. OPINIONS: Authority to transfer any excessof the Fire Marshal Fund to the General Fund, where excess

accumulates under subsection ( 3), 1952 -54, p 72; limitationon collection of gross premium tax, 196466, p 28.

476.060

NOTES OF DECISIONS

Manner of employing and discharging personnel in municipal fire department is a matter of local, not state, concern.

State ex rel. Heinig v. City of Milwaukie, ( 1962) 231 Or 473, 373 P2d 680.

ATTY. GEN. OPINIONS: Duty of local fire officers to enforce state law, 1966 -68, p 588; duty of local fire officersto know and enforce fire regulations, 1966 -68, p 629; limitson authority to issue burning permits, ( 1970) Vol 35, p 160; duty of fire or water districts to provide fire protection,

1970) Vol 35, p 227.

476.070

ATTY. GEN. OPINIONS: Rights and duties of State Fire

Marshal under statute, 1924 -26, p 523; entering to investi- gate as not inconsistent with general statute prohibitingunlawful entry, 1960 -62, p 178.

476.080

ATTY. GEN. OPINIONS: Procedure to enforce compliancewith ORS 479.020 and 479.060( 5) when such sections were

being violated by a county as owner of a courthouse andby an owner of a privately owned hotel building, 1950 -52, p 370; inspection by fire marshal, 1960 -62, p 387; violationsfound by inspections under new regulations, 1960 -62, p 431.

476. 110

ATTY. GEN. OPINIONS: As relieving State Fire Marshalof these powers, 1930 -32, p 191.

476. 113

ATTY. GEN. OPINIONS: Responsibility of advisory boardmembers for faulty recommendations, 1966 -68, p 264.

476.115

ATTY. GEN. OPINIONS: Responsibility of board membersfor faulty recommendations, duty to hold a hearing, 1966 -68, p 264.

476.230

ATTY. GEN. OPINIONS: Aiding in interpretation of ORS476.250, 1952 -54, p 211.

476.250

ATTY. GEN. OPINIONS: District attorney' s power to ex-

447

SUPERSEDED

476.310

amine witnesses under oath in making an arson investigation, 1952 -54, p 211.

476.310 to 476.340

CASE CITATIONS: Myers v. Bd. of Directors, ( 1971) 5 Or

App 142, 483 P2d 95.

ATTY. GEN. OPINIONS: Providing special form of fireprotection, 1958 -60, p 216; disposition of assets upon dissolution, 1964 -66, p 345.

476.310

ATTY. GEN. OPINIONS: Authority to repeal zoning, 1960 -62, p 334; protection of otherwise unprotected areas, 1964 -66, p 345; application of civil service law for firemento rural fire protection districts, 1966 -68, p 636.

476.330

CASE CITATIONS: Myers v. Bd. of Directors, ( 1971) 5 Or

App 142, 483 P2d 95.

ATTY. GEN. OPINIONS: Tax levy for fire protection basedon assessed value after deducting soldier's exemption, 1940 -42, p 617; adoption of fire prevention code, 1958 -60, p 265; equipment acquired by tax levy on property serviced, 1964 -66, p 345; application of civil service law for firemento rural fire protection districts, 1966 -68, p 636.

ATTY. GEN. OPINIONS: Forest patrol assessments on

lands within rural fire protection district which revert to

forest land, 1958 -60, p 215. -

476.380

ATTY. GEN. OPINIONS: Limits on authority to issue burn-

ing permits, ( 1970) Vol 35, p 160; open burning near city, 1970) Vol 35, p 241.

476.420

ATTY. GEN. OPINIONS: Payment of expenses in stan-

dardizing municipal fire equipment by State Fire Marshal, 1922 -24, p 317.

476.510 to 476.610

CASE CITATIONS: State ex rel. Heinig v. City of Milwau- kee, ( 1962) 231 Or 473, 373 P2d 680.

476.600

CASE CITATIONS: Swanson v. Coos County, ( 1971) 4 OrApp 587, 481 P2d 375.


476.710

ATTY. GEN. OPINIONS: Limits on authority to issue permits for structures below ordinary high tide, 1966 -68, p 385.

476.715

CASE CITATIONS: State Forester v. Obrist, ( 1964) 237 Or

63, 390 P2d 333.

ATTY. GEN. OPINIONS: Scope and magnitude of this sec-

tion, 1946 -48, p 312.

476.990

CASE CITATIONS: State Forester v. Obrist, ( 1964) 237 Or

63, 390 P2d 333:

448

C

SUPERSEDED

Chapter 477

Protection of Forests and Vegetation from Fire

Chapter 477

NOTES OF DECISIONS

Any conduct previously regarded as negligent was notintended to be rendered lawful by the Forest Protection Act; the Act does not evidence a purpose to permit greaterfreedom of conduct upon forest land. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d

703.

Duties and liabilities of this chapter are aimed at com-

mercial marketing of timber, not removal of trees to facilitate a particular land use. State v. Calif. Ore. Power Co., 1961) 225 Or 604, 358 P2d 524. _

FURTHER CITATIONS: Northern Wasco County P. U.D. v. Wasco County, ( 1957), 210 Or 1, 305 P2d 766; Sproul v. State Tax Comm., ( 1963) 234 Or 579, 383 P2d 754; Myers

v. Bd. of Directors, ( 1971) 5 Or App 142, 483 P2d 95.

ATTY. GEN. OPINIONS: Legislative intent to create com-

prehensive fire districts with no overlapping functions ordouble burdens, 1958 -60, p 215; authority for cooperativefire protection agreements, 1960 -62, p 294; budgeting reserves for major equipment, 1962 -64, p 227; authority toacquire land for lookout site, 1962 -64, p 351.


477.001

NOTES OF DECISIONS

Electrical power company which obtained easement toextend its power lines and which was authorized by grantto clear trees and brush was not `owner," ' operator" or

person in possession" under this section. State v. Calif. Ore. Power Co., ( 1961) 225 Or 604, 358 P2d 524.

FURTHER CITATIONS: State v. Gourley, (1957) 209 Or 363, 305 P2d 396, 306 P2d 1117; Sproul v. State Tax Comm., (1963)

234 Or 579, 383 P2d 754; State Forester v. Obrist, ( 1964) 237

Or 63, 390 P2d 333.

ATTY. GEN. OPINIONS: Responsibility for fires and removing of slash on an ' operating area," 1942 -44, p 25; inclusion of lands not subject to protection by State Forest- er within definition of " fire protection district," 1956 -58, p80; " grazing land" and " timberland" as component partsof forest land, 1958 -60, p 215.

477.005

CASE CITATIONS: Sproul V. State Tax Comm., ( 1963) 234

Or 579, 383 P2d 754.

ATTY. GEN. OPINIONS: Use of revolving fund by StateForester where reimbursing funds unavailable, 1960 -62, p370.

M

477.062

NOTES OF DECISIONS

Payment of fire patrol assessments by the owner of timberland prevents any liability from attaching to him underthis section, but does not warrant an independent loggingcompany conducting its logging operations on the landsin question in a negligent or careless manner, regardless

of fire hazards. Carter v. LaDee Logging Co., ( 1933) 142

Or 439, 18 P2d 234, 20 P2d 1086.

The codification of the laws of negligence was not in-

tended by the Forest Protection Act; a spark emitting industry must shut down during the periods of drought, ifthat is the only available means of overcoming the firehazards created by it. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703.

In a decree to abate a city trash dump located in timberland if the city refuses to take measures which will safe- guard it, the safeguards should ' contemplate nothing lessthan the protection exacted by statutes such as this one. Richardson v. Murphy, ( 1953) 198 Or 640, 259 P2d 116.

FURTHER CITATIONS: Arneil v. Schnitzer, ( 1944) 173 Or

179, 144 P2d 707; Starker v. Scott, ( 1948) 183 Or 10, 190 P2d532; State Forester v. Obrist, ( 1964) 237 Or 63, 390 P2d 333.

ATTY. GEN. OPINIONS: Procedure in collecting the expense of fire patrol rendered necessary by owner, 1924 -26, p 283; liability where slash cannot be cleaned up becauseof conditions, 193840, p 85; reimbursements of expendituresfrom General Fund as reverting to General Fund, 1956 -58, p' 81.

LAW REVIEW CITATIONS: 1 WLJ 417; 2 WLJ 250, 309- 332.

477.064

CASE CITATIONS: State v. City of Marshfield, ( 1927) 122Or 323, 259 P 201; State v. Gourley, ( 1957) 209 Or 363, 305P2d 396, 306 P2d 1117; State v. Calif., Ore. Power Co., (1961)


Or 63, 390 P2d 333; State Forester v. Umpqua R. Nay. Co.,

1970) 258 Or 10, 478 P2d 631.

ATTY. GEN. OPINIONS: Reimbursements of expenditures

from General Fuhd as reverting to General Fund, 1956 -58, p 81; ratification of fire fighting expenses, 1960 -62, p 370.

477.066

NOTES OF DECISIONS

Under a former similar statute, a city was responsiblefor the cost of putting out a fire on forest land owned bythe city, and the fact that merchantable timber was reservedwhen the land was sold to the city did not excuse it fromresponsibility. State v. City of Marshfield, ( 1927) 122 Or 323, 259 P 201.

A logging company operating on the land of anotherunder contract with the latter may be liable for damages

449

SUPERSEDED

477.067

from fire under this section, while the owner of the land

may be entirely free of liability for such damages. Carterv. LaDee Logging Co., ( 1933) 142 Or 439, 18 P2d 234, 20P2d 1086.

Owner of timberland has general duty to make everyreasonable effort to control and extinguish fires on such

land. State v. Gourley, ( 1957) 209 Or 363, 305 P2d 396, 306P2d 1117.

In determining whether landowner made every reasonable effort to control fire, jury should consider all the circumstances that would influence a reasonable man in de-

termining what he should do to fully comply with the law. Id.

Fact that fire was not controlled is not conclusive proof

that landowner failed to make every reasonable effort tocontrol it. Id.

This section was constitutional. Id.

An easement holder is not an " owner," " operator" or

person in possession." State v. Calif. Ore. Power Co., ( 1961)

225 Or 604, 358 P2d 524.

FURTHER CITATIONS: State Forester v. Obrist, ( 1964) 237Or 63, 390 P2d 333; State Forester v. Umpqua R. Nay. Co.,

1970) 258 Or 10, 478 P2d 631.

ATTY. GEN. OPINIONS: Authority of forester to enter intocontract with county, providing for protection of timberlands from damage by fire and freedom from liability ofthe owner to others arising on account of fires, 1936 -38, p 495; the owner, operator, and possessor of propertyclassed as " operating area" as responsible for fire control, 1942 -44, p 25; reimbursements of expenditures from GeneralFund as reverting to General Fund, 1956 -58, p 81; ratification of fire- fighting expenses, 1960 -62, p 370.


477.067

CASE CITATIONS: State v. Gourley, ( 1957) 209 Or 363, 305P2d 396, 306 P2d 1117; State v. Calif. Ore. Power Co., ( 1961)

225 Or 604, 358 P2d 524; State Forester v. Obrist, ( 1964) 237Or 63, 390 P2d 333; State Forester v. Umpqua R. Nay. Co.,

1970) 258 Or 10, 478 P2d 631.


477.068

NOTES OF DECISIONS

Under a former similar statute, the fact that the reason-

able cost of fighting the fire might exceed the value of theland did not render the statute invalid. State v. City ofMarshfield, ( 1927) 122 Or 323, 259 P 201.

Under a former similar statute, no evidence was neces-

sary that the state paid out any sum of money for expensesin controlling or extinguishing the fire. Id.

Reason for which forest protective agency undertakesfire- fighting effort is immaterial to state' s right to recovercosts thereof. State v. Gourley, ( 1957) 209 Or 363, 305 P2d396, 306 P2d It 17.

An easement holder is not an " owner," " operator" or

person in possession." State v. Calif. Ore. Power Co., (1961)

225 Or 604, 358 P2d 524.

Action for costs authorized by this section does not contain the necessary elements of a claim under the U.S. TortClaims Act. Oregon v. United States, ( 1962) 308 F2d 568,

aff'g 195 F Supp 276, cert. denied, 372 US 941, 9 L Ed 2d967, 83 S Ct 934.

The basis of an action brought under this section is common -law negligence. State Forester v. Umpqua R. Nay. Co., 1970) 258 Or 10, 478 P2d 631.

Evidence, though illegally obtained by administrativeofficers, will not be excluded in a civil proceeding. Id.

FURTHER CITATIONS: Kesterson v. Calif. Ore. Power Co.,

1925) 114 Or 22, 228 P 1092; State Forester v. Obrist, ( 1964)

237 Or 63, 390 P2d 333.

ATTY. GEN. OPINIONS: The owner, operator and person

in possession of property classed as an " operating area" as responsible for fire control, 1942 -44, p 25; fire patrolassessments as part of county levy of taxes for purposesof collection, 1950 -52, p 44; reimbursements of expendituresfrom General Fund as reverting to General Fund, 1956 -58, p 81; ratification of fire - fighting expenses, 1960 -62, p 370.

LAW REVIEW CITATIONS: 36 OLR 282; 2 WLJ 320.

477.069

CASE. CITATIONS: State v. Calif. Ore. Power Co., ( 1961)

225 Or 604, 358 P2d 524; State Forester v. Umpqua R. Nay.

Co., ( 1970) 258 Or 10, 478 P2d 631.

477.085

CASE CITATIONS: State Forester v. Obrist, ( 1964) 237 Or63, 390 P2d 333; State Forester v. Umpqua R. Nay. Co.,

1970), 258 Or 10, 478 P2d 631.


477.090

NOTES OF DECISIONSThe codification of the laws of negligence was not in-

tended by the Forest Protection Act, and no part thereofis ' repugnant to the common -law doctrine of negligence. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935)

149 Or 126, 40 P2d 703.

Double damages are recoverable for breach of the com-

mon -law duties as to the exercise of due care for the pre-

vention of fire, as well as, for breaches of the statutoryduties. Id.

The complaint did not bring defendant within the classof persons liable under this section. State Forester v. Obrist,

1964) 237 Or 63, 390 P2d 333.

FURTHER CITATIONS: Eastman v. Jennings -McRae Log- ging Co., ( 1914) 69 Or 1, 138 P 216, Ann. Cas. 1916A, 185;

Johnson v. Jennings Logging Co., ( 1914) 70 Or 16, 138 P

236; Arned v. Schnitzer, ( 1944) 173 Or 179, 144 P2d 707; Fairview Farms, Inc. v. Reynolds Metals Co., ( 1959) 176 F

Supp 178, i89; State v. Calif. Ore. Power Co., ( 1961) 225

Or 604, 358 P2d 524; Southern Pac. Co. v. Campbell McLean, Inc., ( 1962) 232 Or 467, 376 P2d 77.

LAW REVIEW CITATIONS: 36 OLR 282; 2 WLJ 309 -332.

477.120

NOTES OF DECISIONS


The Forest Protection Act was not repugnant to thecommon -law doctrine of negligence, and the common -law

principle that men must exercise due care to avoid inflictinginjuries upon others. Silver Falls Tbr. Co. v. Eastern &

Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703.

Membership in a fire association which assumed controlof the fine fighting efforts did not relieve the person negligently permitting a fire to be started from responsibilityfor damages caused thereby.

An easement holder was not an " owner," " operator" or

450

0

SUPERSEDED

is " person in possession." State v. Calif. Ore. Power Co., (1961) 225 Or 604, 358 P2d 524.

FURTHER CITATIONS: State v. City of Marshfield, ( 1927) 122 Or 323, 259 P 201.


477.210

NOTES OF DECISIONS

A former similar statute was constitutional as a reason-

able and proper police regulation to protect the forests ofthe state from fire. First State Bank v. Kendall Lbr. Co., 1923) 107 Or 1, 213 P 142.

The payment of state fire patrol assessments by theowner of timber lands was considered adequate protection

within the meaning of a former similar statute. Carter v. La Dee Logging Co., ( 1933) 142 Or 439, 18 P2d 1086.

FURTHER CITATIONS: Arneil v. Schnitzer, ( 1944) 173 Or

179, 144 P2d 707; Starker v. Scott, ( 1948) 183 Or 10, 190 P2d

532; Richardson v. Murphy, ( 1953) 198 Or 640, 259 P2d 116; State v. Gourley, ( 1957) 209 Or 363, 305 P2d 396, 306 P2d1117; Sproul v. State Tax Comm., ( 1963) 234 Or 579, 383

P2d 754.

ATTY. GEN. OPINIONS: Inclusion of lands not subject to

protection by State Forester within definition of " fire protection district," 1956 -58, p 80.

LAW REVIEW CITATIONS: 2 WLJ 250, 309- 332.

477.220

CASE CITATIONS: Sproul v. State Tax Comm., ( 1963) 234

Or 579, 383 P2d 754.

ATTY. GEN. OPINIONS: Forest patrol assessments onlands within rural fire protection district which revert to

forest lands, 1958 -60, p 215.

477.225

ATTY. GEN. OPINIONS: Costs incurred on emergency fires, 1958 -60, p •175; fire protection district boundary changes dueto land use changes, 1958 -60, p 215.

LAW REVIEW CITATIONS: 2 WU 309 -332.

477.230

NOTES OF DECISIONS

See also cases under ORS 477.210.

FURTHER CITATIONS: State v. Calif. Ore. Power Co.,

1961) 225 Or 604, 358 P2d 524.

ATTY. GEN. OPINIONS: Retirement program for employes,

1960 -62, p 294.

ATTY. GEN. OPINIONS: Inclusion of lands not subject to

protection by State Forester within definition of " fire protection district," 1956 -58, p 80; inclusion of certain itemsin a fire protection district tentative budget, 1956 -58, p 80; estimated balance or deficit from the previous fiscal year"

defined, 1956 -58, p 80; retirement program for employes, 1960 -62, p 294; budgeting reserves for major equipment, 1962 -64, p 227.

477. 505

477.270

NOTES OF DECISIONS


ATTY. GEN. OPINIONS: Authority to direct assessor toextend upon the roll estimated costs to be incurred, 1954 -56,

p 23; inclusion of certain items in a fire protection districttentative budget, 1956 -58, p 80; retirement program foremployes, 1960 -62, p 294; budgeting reserves for majorequipment, 1962 -64, p 227; construing " levy," 1964 -66, p 429.

477.285

CASE CITATIONS: State v. Gourley, ( 1957) 209 Or 363, 305P2d 396, 306 P2d 1117; Sproul v. State Tax Comm., ( 1963)

234 Or 579, 383 P2d 754.

477.291


Or 579, 383 P2d 754.

477.300

ATTY. GEN. OPINIONS: Budgeting reserves for majorequipment, 1962 -64, p 227.

477.355

ATTY. GEN. OPINIONS: Constitutionality under- prohibi- tion against holding two lucrative offices, 1958 -60, p 395.

477.365

CASE CITATIONS: State v. Gourley, ( 1957) 209 Or 363, 305P2d 396, 306 P2d 1117; State Forester v. Obrist, ( 1964) 237

Or 63, 390 P2d 333.

ATTY. GEN. OPINIONS: Constitutionality of service ofnational fire service officers as fire wardens, 1958 -60, p 395.

451

477.370

CASE CITATIONS: State Forester v. Obrist, ( 1964) 237 Or63, 390 P2d 333.

477.406

ATTY. GEN. OPINIONS: Retirement program for employes,

1960 -62, p 294.

477.425


Or 579, 383 P2d 754.

477.440

ATTY. GEN. OPINIONS: Same person as, administrator and

executive assistant to assistant forester, 1960 -62, p 296.

477.460

ATTY. GEN. OPINIONS: Same person as, administrator and

executive assistant to assistant forester, 1960 -62, p 296.

477.505


SUPERSEDED

477. 510

477.510


477.515

NOTES OF DECISIONS

Under former similar statute any conduct previously regarded as negligent was not intended to be rendered lawful

by the Forest Protection Act, and the Act does not evidencea purpose to permit greater freedom of conduct upon forest

land. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co.,

1935) 149 Or 126, 40 P2d 703.

FURTHER CITATIONS: Anderson v. Eischen, ( 1926) 16 F2d54.

ATTY. GEN. OPINIONS: Necessity of person engaged inlogging or wood cutting to obtain permit to burn slashings, 1924 -26, p 388.

477.545

CASE CITATIONS: State v. Calif. Ore. Power Co., ( 1961)

225 Or 604, 358 P2d 524.

477.565

NOTES OF DECISIONS

Under former similar statute, the omission to obey thestatutory duties imposed by the Forest Protection Act, bya spark emitting industry, gave rise to a single cause ofaction only in favor of a party injured. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126, 40

P2d 703.

FURTHER CITATIONS: State v. Calif. Ore. Power Co., 1961) 225 Or 604, 358 P2d 524.

477.570

NOTES OF DECISIONS

This section does not require a logging company to keepthe right of way of its logging railroad clear of all inflammable material, except in so far as that material may consistof " tops and inflammable refuse left after logging or woodcutting." Carter v. La Dee Logging Co., ( 1933) 142 Or 439,

18 P2d 234, 20 P2d 1086.

It is the duty of both the owner of timberlands and oneengaged by him under contract to log off such lands, toburn the annual slashings resulting from logging operations. Id.

The logger cannot escape liability for disobedience of thestatute regardless of whether he acted as agent or indepen-

dent contractor, and regardless of whether or not the con-

dition existing on the land and prohibited by the statutewas brought about by or resulted from his acts. Id.

FURTHER CITATIONS: Silver Falls Tbr. Co. v. Eastern &

Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703; State v.

Gourley, ( 1957) 209 Or 363, 305 P2d 396, 306 P2d 1117; Statev. Calif. Ore. Power Co., ( 1961) 225. Or 604, 358 P2d 524.

ATTY. GEN. OPINIONS: Necessity of person engaged inlogging or wood cutting to obtain permit to burn slashings, 1924 -26, p 388; responsibility for slash on land classed asoperation area ", 1942 -44, p 25.


309 -332.

477. 575

CASE CITATIONS: Silver Falls Tbr. Co. v. Eastern & West-

ern Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703; State v. Gourley, 1957) 209 Or 363, 305 P2d 396, 306 P2d 1117; State v. Calif.

Ore. Power Co., ( 1961) 225 Or 604, 358 P2d 524.


477.645

CASE CITATIONS: State Forester v. Obrist ( 1964) 237 Or63, 390 P2d 333.

477.650

NOTES OF DECISIONS

The omission to obey the common -law rule as to negligence and the statutory duties imposed by the Forest Pro- tection Act, by a spark emitting industry gives rise to asingle rause of action only in favor of a party injured bysuch omission. Silver Falls Tbr. Co. v. Eastern & Western

Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703.

FURTHER CITATIONS: State Forester v. Obrist, ( 1964) 237

Or 63, 390 P2d 333.

477.660


477.665

NOTES OF DECISIONS

The complaint stated a cause of action for damages

caused by omission to perform statutory-duty. Silver FallsTbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126,

40 P2d 703.

FURTHER CITATIONS: State Forester v. Obrist, (1964) 237

Or 63, 390 P2d 333.

477.670

CASE CITATIONS: State Forester v. Umpqua R. Nay. Co., 1970) 258 Or 10, 478 P2d 631.

477.685

NOTES OF DECISIONS

The Forest Protection Act does not permit greater free-

dom of conduct upon forest land than that previously regarded as negligent. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703.

477.690

NOTES OF DECISIONS

The Forest Protection Act does not permit greater freedom of conduct upon forest land. Silver Falls Tbr. Co. v. Eastern & Western Lbr. Co., ( 1935) 149 Or 126, 40 P2d 703.

477.710


452

477.850


SUPERSEDED

477.920


Or 579, 383 P2d 754.

477.930

NOTES OF DECISIONS

This section was constitutional as an exercise of thepolice power. Sproul v. State Tax Comm., ( 1963) 234 Or

579, 383 P2d 754.

The label the legislature places on a levy is not conclusiveof the nature of the levy. Id.

ATTY. GEN. OPINIONS: Costs incurred on emergency fires, 1958 -60, p 175; construing " levy," 1964 -66, p 429.


477.940


Or 579, 383 P2d 754.

477.993

ATTY. GEN. OPINIONS: Construing " levy," 1964 -66, p 429.

477.960


Or 579, 383 P2d 754.

ATTY. GEN. OPINIONS: Construing " levy," 1964 -66, p 429.

477.970


Or 579, 383 P2d 754.

ATTY. GEN. OPINIONS: Costs incurred on emergency fires, 1958 -60, p 175.

477.993

CASE CITATIONS: State v. Calif. Ore. Power Co., ( 1961)

225 Or 604, 358 P2d 524; Sproul v. State Tax Comm., ( 1963)


Or 63, 390 P2d 333; State v. Johnson, ( 1969) 1 Or' App 363, 462 P2d 687.

453

SUPERSEDED

Chapter 478

Rural Fire Protection Districts

Chapter 478

NOTES OF DECISIONS

The general law on civil service for firemen applies torural fire protection districts. Myers v. Bd. of Directors,

1971) 5 Or App 142, 483 P2d 95.

FURTHER CITATIONS: St. Helens Rural Fire Protection

Dist. v. Dept. of Rev., ( 1970) 4 OTR 186.

ATTY. GEN. OPINIONS: Assets and liabilities followingmerger of districts, 1948 -50, p 174; including unconstitutionally excessive levy in computation of district tax base, 1950. 52, p 25; authority of district to increase tax levy to10 mills for installation of street light system, 1950 -52, p83; eligibility for voting in district, 195456, p 155; serial levyby district, 1956 -58, p 68; fire protection of forest areaswithin district by State Forester, 1958 -60, p 215; consoli- dation of districts, 1958 -60, p 346; district as municipal corporation, 1960 -62, p 325; authority of districts to borrowon short term notes, 1962 -64, p 326; application of civilservice law for firemen to districts, 1966 -68, p 636.


478.002

ATTY. GEN. OPINIONS: New tax base, 1956 -58, p 289.

478.010

ATTY. GEN. OPINIONS: Authority of residents to adoptinitiative laws imposing regulations, 1938 -40, p 341; im. provements on railroad rights of way not includable in ruralfire protection district without owner' s consent, 194042, p588; what constitutes " contiguous territory" within themeaning of this section, 1948 -50, p 328; status of rural fireprotection district upon incorporation of a city includingmost of district' s area, 194648, p 115; assets and liabilitiesfollowing merger of districts, 1948 -50, p 174; district tax levyagainst personal property, 1952 -54, p 206; status of revertedforest land within district, 1958 -60, p 215; forest patrol assessments on lands within rural fire protection district

which revert to forest lands, 1958 -60, p 215; consolidateddistrict as regularly organized district, 1958. 60, p 346; authority of district to contract for ambulance service, 1966 -68, p 134.


478.050

ATTY. GEN. OPINIONS: Election of board when district

organized without directors, 1952 -54, p 249; determiningelector's right to vote in district, 1954 -56, p 155; signing ofpetitions by persons under civil service, 1958 -60, p 346; obtaining voter approval to distribute electric power, 1960- 62, p 325.

478.100

ATTY. GEN. OPINIONS: Effect of 13 -day notice on thevalidity of a district, 1954 -56, p 60..

478.210

ATTY. GEN. OPINIONS: Directors as volunteer firemen of

own district, 1948 -50, p 346; authority of fire chief to equipprivately -owned vehicle for emergency purposes, 1950 -52, p 232; board not yet in existence at time of election, 1952 -54, p 250; determining elector's right to vote in district, 1954 -56, p 155; authority of district to contract for ambulance service, 1966 -68, p 134.

478.221

ATTY. GEN. OPINIONS: Voting by corporation landowners and by property owners who reside outside district, 195456, p 155; constitutionality of voter qualification, (1968) Vol 34, p 263.

478.240

ATTY. GEN. OPINIONS: Applicability to election on adoption of fire prevention code, 1952 -54, p 49; district tax levyagainst personal property, 1952 -54, p 206; obtaining voterapproval to distribute electric power, 1960 -62, p 325.

478.250

ATTY. GEN. OPINIONS: Authority of district to increasetax )evy to 10 mills for installation of street light system, 1950 -52, p 83; control of funds by district treasurer, 1962 -64, p 129; authority to pay secretary- treasurer a salary, 1964 -66, p 113.

478.260

CASE CITATIONS: Hanyman v. Roseburg Rural Fire Pro- tection Dist., ( 1966) 244 Or 631, 420 P2d 51.

ATTY. GEN. OPINIONS: Ctistodian as " firefighter ", 1948- 50, p 247; installation and use of sirens by members of fireprotection district, 1950 -52, p 232; authority of district tocontract for ambulance service, 1966 -68, p 134; authorityof district board to include dependents in insurance cover-

age, ( 1970) Vol 34, p 1103; duty to provide fire protection, 1970) Vol 35, p 227.

478.280

ATTY. GEN. OPINIONS: Ability of director of fire protection district to perform services for the district for compen-

sation, 1948 -50, p 346; authority to pay secretary- treasurera salary, 1964 -66, p 113.

454

1 u

is

SUPERSEDED

C J 478.290

ATTY. GEN. OPINIONS: Providing street lights outside of10 -mile limit, ( 1968) Vol 34, p 344.

478.300

ATTY. GEN. OPINIONS: Authority of district to increasetax levy to 10 mills for installation of street light system, 1950 -52, p 83; providing street lighting, ( 1968) Vol 34, p 344; duty to provide fire protection, ( 1970) Vol 35, p 227.


478.310

NOTES OF DECISIONS

Cost of services to tax exempt property is borne by thegeneral tax. Hillsboro Rural Fire Protection Dist. v. Wash-

ington County, ( 1964) 237 Or 494, 392 P2d 253.

ATTY. GEN. OPINIONS: Responsibility for fire service tostate property, 1966 -68, p 559.

478.335

ATTY. GEN. OPINIONS: Authority of district board toinclude dependents in insurance coverage, ( 1970) Vol 34,

p 1103.

478.410

ATTY. GEN. OPINIONS: Power of directors to borrow

money prior to collection of taxes, 1940 -42, p 302; limitationon amount of warrants marked " unpaid for want of funds"

that may be issued, 194648, p 179; right of taxpayer todemand reduction in tax levy following gifts, 1948 -50, p 401; including unconstitutionally excessive levy in computationof district tax base, 1950 -52, p 25; authority of district toincrease tax levy to 10 mills for installation of street lightsystem, 1950 -52, p 83; district tax levy against personalproperty, 1952 -54, p 206; determining elector' s right to votein district, 1954 -56, p 155; election authorizing borrowingof money, 1954 -56, p 214; serial levy by fire protection district, 1956 -58, p 68; effect of four -mill limitation upon apportionment of taxes between parts of a rural fire control

district, 1956 -58, p 150; relation of four mill limitation toconstitutional six percent limit, 1958 -60, p 217; authority ofdistricts to borrow on short- term notes, 1962 -64, p 326; legislative limit on local taxing authority, 1964 -66, p 429; legislative limit on tax base, ( 1970) Vol 34, p 1043.

478.430

ATTY. GEN. OPINIONS: Levy of tax on personal as wellas real property, 1952 -54, p 206; as additional to generalpower to levy taxes, 1956 -58,, p 68; proposed constitutionaltax limit, ( 1968) Vol 34, p 203.

478.965

478.450

ATTY. GEN. OPINIONS: Legality of tax levied to maintainrural lighting system in area more than 10 miles fromcity of over 100,000 population, 1950 -52, p 83; as additional

to general power to levy taxes, 1956 -58, p 68; legislativelimit on local taxing authority, 1964 -66, p 429.

478.460

ATTY. GEN. OPINIONS: Handling of funds following aconsolidation of two existing districts from two counties, 1948 -50, p 174; contributions without designated purpose, placing in General Fund, 1948 -50, p 401; terms of withdrawalfrom district fund, 1958 -60, p 310; control of funds by districttreasurer, 1962 -64, p 129; authority of other directors to signor countersign, 1962 -64, p 443; authority to make depositsin and withdraw funds from commercial banks, delegation

of duty to countersign checks, 1964 -66, p 98.

478.470

IATTY. GEN. OPINIONS: Authority to issue warrants total- ing more than available cash and collectible taxes, 1964 -66, p 98.

478.910

ATTY. GEN. OPINIONS: Preparing of ballot title and mail- ing of voters' pamphlet in special election called under thissection, 1952 -54, p 49; adoption of code by water districtthat furnishes fire protection services, 1952 -54, p 53; " general election" as not restricted to state -wide elections, 1952 -54,

p 220; relative jurisdiction of districts and regional air quality authority, 1966 -68, p 558; kinds of material subject toburning permit, division of authority between variousagencies, 1966 -68, p 614; duty to provide fire protection, 1970) Vol 35, p 227.

478.920

ATTY. GEN. OPINIONS: Regulation of sparklers, 1964 -66,

p 226; relative jurisdiction of districts and regional air quality authority, 1966 -68, p 558; kinds of material subject toburning permit, division of authority between variousagencies, 1966 -68, p 614.

478.960

ATTY. GEN. OPINIONS: Relative jurisdiction of districts

and regional air quality authority, 1966 -68, p 558; kinds ofmaterial subject to burning permit, authority of fire chiefto . prescribe conditions, division of authority betweenvarious agencies, 1966 -68, p 614; comparing ORS 476.380, 1970) Vol 35, p 160; open burning near city, ( 1970) Vol 35,

p .241.

478.965

ATTY. GEN. OPINIONS: Recovery of costs by city as agentof district, ( 1970) Vol 35, p 227.

455

SUPERSEDED

Chapter 479

Protection of Buildings from Fire;

Electrical Safety Law

Chapter 479

ATTY. GEN. OPINIONS: Procedures to enforce fire protec-

tion statute for violation by a hotel owner and violationby a county as owner of county courthouse, 1950 -52, p 369.

479.010

CASE CITATIONS: State v. Molitor, (1955) 205 Or 698, 289P2d 1090.

AM. GEN. OPINIONS: Building housing both hotel andgarage, 1948-50, p 439; county courthouse as public building, 1950 -52, p 369; duty of state to observe provisions of thischapter, 195456, p 215, 1958 -60, p 172; application of "publicbuilding" definition to ORS 479. 100, 1956 -58, p 47; application to use for auto racing, 1962 -64, p 112; duty to havejail windows, 1966 -68, p 293; foster home as private residence, 1966 -68, p 625.

479.020 to 479. 190

ATTY. GEN. OPINIONS: Administrative appeal from fire

marshal' s orders, 1966 -68, p 264.

479.020

ATTY. GEN. OPINIONS: " Private residence" defined,

1926 -28, p 483; additional floors laid between floors andceilings of original stories creating new and separate floorspace, as bringing buildings within provision, 1936 -38, p 377; installation of fire escapes on certain types of buildings,

1936 -1938, p 599; procedure to enforce compliance whenstatutes were being violated by a county as owner of acounty courthouse and by an owner of a privately ownedhotel, 1950 -52, p 370; applicability of municipal building codeto public school building, 1958 -60, p 68; duty of state toobserve provisions of this chapter, 1958 -60, p 172; requiringbalance stairs as well as fire escape exits, 1966 -68, p 588; foster home as private residence, 1966 -68, p 625.

479.030

ATTY. GEN. OPINIONS: Duty of state to observe provisions of this chapter, 1958 -60, p 172; requiring balance stairsas well as fire escape exits, 1966 -68, p 588.

479.040

AM. GEN. OPINIONS: Applicability of municipal buildingcode to public school building, 1958 -60, p 68; requiring balance stairs as well as fire escape exits, 1966 -68, p 588.

479.050

ATTY. GEN. OPINIONS: Construing " public assembly," 1956 -58, p 47; applicability of municipal building code topublic school building, 1958 -60, p 68; duty of state to observe

provisions of this chapter, 1958 -60, p 172; requiring balance. stairs as well as fire escape exits, 1966 -68, p 588.

479.060

AM. GEN. OPINIONS: Installation of fire escapes on

certain types of buildings, 1936 -38, p 599; procedure to enforce compliance when statutes were being violated by acounty as owner of a county courthouse and by an ownerof a. privately owned hotel building, 1950 -52, p 370; dutyof local fire officers to enforce, 1966 -68, p 588.

479.080

AM. GEN. OPINIONS: Right of fire marshal to direct

person in charge of building occupied for hotel or roominghouse to install proper fire gong, 1926 -28, p 422.

479. 100

ATTY. GEN. OPINIONS: Use of upper floors of a frame

building for apartments whose lower floor is used for garagepurposes, 1926 -28, p 422; use of ground floor of buildingas garage and upper floors as a hotel, 1928 -30, p 36; continued use, without complying with building code, of a building which has continuously been used as a garage, 1928 -30, p 322; procedure to be followed by State Fire Marshal whenhe finds a hotel and garage being operated in the samebuilding, 1948 -50, p 439; garage in courthouse, 1956 -58, p47; " classroom" as within meaning of " assembly hall," garage and classroom in same building, 1958 -60, p 172; application to use for auto racing, 1962 -64, p •112.

479. 121

NOTES OF DECISIONS

Where plaintiffs evidence did not show a violation of

a former similar statute, it could not be shown by thedefendants in the absence of proper pleading of such violation. Nickolopolus v. Frank, ( 1929) 129 Or 118, 276 P 695.

479. 130

AM. GEN. OPINIONS: Construing " public assembly," 1956 -58, p 47; • duty of state to observe provisions of thischapter, 1958 -60, p 172.

479. 150

AM. GEN. OPINIONS: Construing " public assembly," 1956 -58, p 47; duty of state to observe provisions of thischapter, 1958 -60, p 172.

479.155

AM. GEN. OPINIONS: Duty of local fire officers to enforce, 1966 - 8, p 588.

456

SUPERSEDED

r 479.170

ATTY. GEN. OPINIONS: Procedure to be followed by StateFire Marshal when he finds a hotel and garage beingoperated in the same building, 1948 -50, p 439; procedure toenforce compliance when statutes were being violated bya county as owner of a county courthouse and by an ownerof a privately owned hotel building, 1950 -52, p 370; " compliance" for renewal by institutions removing hazards, 1960 -62, p 431; administrative appeal from fire marshal' s orders, 1966 -68, p 264.

479. 180

ATTY. GEN. OPINIONS: Appeal from closing order, 1948- 50, p 439; effect of failure either to comply with or to appealan order, 1950 -52, p 369; responsibility of board membersfor faulty recommendations, duty to hold a hearing, 1966 -68, p 264.

479.210

ATTY. GEN. OPINIONS: " Compliance" for renewal byinstitutions removing hazards, 1960 -62, p 431; administrativeappeal from fire marshal' s orders, 1966 -68, p 264; fosterhome' as child- caring facility, 1966 -68, p 625.

479.215

ATTY. GEN. OPINIONS: " Applicable" laws defined, 1960-

62, p 387; " compliance" for renewal by institutions removinghazards, 1960 -62, p 431; administrative appeal from firemarshal' s orders, 1966 -68, p 264; foster home as child -caringfacility, 1966 -68, p 625.

479.217

ATTY. GEN. OPINIONS: Administrative appeal from fire

marshal' s orders, 1966 -68, p 264.

479.220

ATTY. GEN. OPINIONS: " Applicable" laws defined, -1960-

62, p 387; " compliance" for renewal by institutions removinghazards, 1960 -62, p 431; administrative appeal from finemarshal' s orders, 1966 -68, p 264.

479.510 to 479.850

CASE CITATIONS: Saylor v. Enterprise Elec. Co., ( 1924)

110 Or 231, 222 P 304, 223 P 725; Sander v. Calif. -Ore. PowerCo., ( 1930) 133 Or 571, 291 P 365; Sullivan v. Mountain

States Power Co., ( 1932) 139 Or 282, 9 P2d 1038; Nilsen v.

Davidson Ind. Inc., ( 1961) 226 Or 164, 360 P2d 307.

ATY. GEN. OPINIONS: Authority of commissioner to dis- continue use of electrical wiring or apparatus determinedto be dangerous to life or property until defects therein areremedied, 1936 -38, p 5; requirement that State IndustrialAccident Commission conform to electric code in compilingstandard safety code, 1938-40, p 157; commissioner' s authority to prescribe qualifications for city inspectors, ( 1970) Vol 34, p 1136.

479.510

CASE CITATIONS: Hillman v. No. Wasco County P.U.D., 1958) 213 Or 264, 277, 323 P2d 664.

479.990


479.540

NOTES OF DECISIONS

The exemption in this section does not include corpora-

tions and is constitutional. Nilsen v. Davidson Ind., Inc.,

1961) 226 Or 164, 360 P2d 307.

ATTY. GEN. OPINIONS: Requirement that railway employe engaged in repairing electric wiring be licensed, 1934 -36, p 557; authority of a municipality to regulate businesses and occupations where the ordinance does not con-

flict with a statute on the same subject, 1944 -46, p 383.

479.630

CASE CITATIONS: McLean v. State Ind. Acc. Comm., 1950) 189 Or 405, 221 P2d 566.

ATTY. GEN. OPINIONS: Definitions of terms " journeymen

electricians," " foremen" and " apprentices," 1934 -36, p 413; electrician license needed by electrical engineer, 1948 -50, p430; application of journeyman' s license fee to supervisingelectrician's license fee, 1950 -52, p 24; collection and refunding of fees prior to qualification for license, 1950 -52, p 24.

479.720

CASE CITATIONS: Hillman v. No. Wasco County P. U. D., 1958) 213 Or 264, 277, 323 P2d 664.

ATTY. GEN. OPINIONS: Defining electrical products, 1956 -58, p 23.


479.760

AM. GEN. OPINIONS: Defining electrical products, 1956 -58, p 23.

479.810

CASE CITATIONS: Hillman v. No. Wasco County P.U.D., 1958) 213 Or 264, 277, 323 P2d 664.

ATTY. GEN. OPINIONS: Defining electrical products, 1956 -58, p 23; unpaid volunteer inspectors, ( 1970) Vol 35, p 125.

479.820

ATTY. GEN. OPINIONS: Defining electrical products, 1956 -58, p 23.

479.990

CASE CITATIONS: Nilsen v. Davidson Ind. Inc., ( 1961) 226

Or 164, 360 P2d 307.

ATTY. GEN. OPINIONS: Procedures to enforce fire protec-

tion statute for violation by a hotel owner and violationby a county as owner of county courthouse, 1950 -52, p 369.

457

SUPERSEDED

Chapter 480

Explosives; Inflammable Materials; Pressure Vessels

Chapter 480

ATTY. GEN. OPINIONS: Applicability to autoclaves, 1966- 68, p 191.

480. 110 to 480. 170

ATTY. GEN. OPINIONS: Sparklers as fireworks, 1964 -66,

p 226; appeal of administrative orders, 1966 -68, p 264.

480. 110

ATTY. GEN. OPINIONS: "Torpedoes" as fireworks, 1948 -50,

p 258; authority of State Fire Marshal to regulate the saleof fireworks, 1964 -66, p 206; regulation of sparklers by ruralfire protection district, 1964 -66, p 226.

480. 120

ATTY. GEN. OPINIONS: "Torpedoes" as fireworks, 1948 -50,

p 258; authority of State Fire Marshal to regulate the saleof fireworks, 1964 -66, p 206; regulation of sparklers by ruralfire protection district, 1964 -66, p 226.

nIZ

ATTY. GEN. OPINIONS: Authority of State Fire Marshalto regulate the sale of fireworks. 1964 -66, p 206; limitingdischarge of fireworks to public displays under permit,

1964 -66, p 226.

480. 140

ATTY. GEN. OPINIONS: Limiting discharge of fireworksto public displays under permit, 1964 -66, p 226.

480. 150

ATTY. GEN. OPINIONS: Authority of State Fire Marshalto regulate the sale of fireworks, 1964 -66, p 206; limitingdischarge of fireworks to public displays under permit,

1964 -66, p 226.

480. 160

ATTY. GEN. OPINIONS: Regulation of sparklers by ruralfire protection district, 1964 -66, p 226.

480.310 to 480.340

ATTY. GEN. OPINIONS: Legality of key -lock gasoline dispensing devices on tanks leased by consumers, 1964 -66, p419; regulation of LP gas installations in motor vehicles,

1970) Vol 35, p 95:

ri k i

ATTY. GEN. OPINIONS: Appeal of administrative orders,

1966- 68, p 264.

480.340

ATTY. GEN. OPINIONS: Peace officers enforcing this section, 1956 -58, p 173; appeal of administrative orders, 1966 -68, p 264.

480.410 to 480.460

ATTY. GEN. OPINIONS: Application to wholesale and re-

tail dealer, 1958 -60, p 326.

480.420


1966 -68, p 264; regulations of LP gas installations in motorvehicles, ( 1970) Vol 35, p 95.

480.430


1966 -68, p 264.

480.432


tail dealer, 1958 -60, p 326; appeal of administrative orders, 1966 -68, p 264; regulations of LP gas installations in motorvehicles, ( 1970) -Vol 35, p 95.

480.434


1966 -68, p 264.

LI41L! i]


tail dealer, 1958 -60, p 326.

458

480.450

ATTY. GEN. OPINIONS: Appeal of' admimstrative orders,

1966 -68, p 264; regulation of LP gas installations in motorvehicles, ( 1970) Vol 35, p 95.

480.510 to 480.615

ATTY. GEN. OPINIONS: Applicability to autoclaves, 1966- 68, p 191.

480.535

ATTY. GEN. OPINIONS: Unpaid volunteer inspectors,

1970) Vol 35, p 125.

C

J

is

SUPERSEDED

is

is

Chapter 481

Motor Vehicle Registration and Licensing; Dealers, Wreckers and Transporters;

Motor Vehicles Division

Chapter 481

NOTES OF DECISIONS

Self - propulsion is not an element of the definition of

vehicle ". Roy L. Houck & Sons v. State Tax Comm., ( 1963)

1 OTR 286.

FURTHER CITATIONS: Wittenberg v. Mutton, ( 1955) 203Or 438, 280 P2d 359; Roy L. Houck & Sons v. State Tax

Comm., ( 1961) 229 Or 21, 366 P2d 166; Oldham v. State TaxComm., ( 1964) 2 OTR 40; Randolph v. Delaney Ford, Inc., 1966) 245 Or 226, 420 P2d 642.

ATTY. GEN. OPINIONS: Disposition of collected fines,

1948 -50, p 357; authority of Secretary of State to establishbranch offices for administration of this chapter, 1950 -52,

p 27; payment of State Treasurer of expenses of branchoffices established by Secretary of State, 1950 -52, p 33; compelling courtroom appearance of persons violating thischapter, 1954 -56, p 10; constitutionality of additional penalties for moving traffic violations, 1954 -56, p 94; dispositionof forfeited bail, 1954 -56, p 142; licensing requirements fortank trucks used for fire protection, 1954 -56, p 159; dutiesof Department of Motor Vehicles as to mortgages on mi-

gratory chattels, 1956 -58, p 7; registration of "Tournapull," 1956 -58, p 10; jurisdiction of Portland municipal courts overviolations, 1956 -58, p 28; arrest of violator as prerequisiteto issuing of citation to appear in court, 1956 -58, p 62; regulating use and operation of vehicles on highways, 1958 -60, p 27; purpose as proportionate distribution of highway costs among users, 1958 -60, p 64; as primarily a licensing and registration measure, 1966 -68, p 548; licensing ofhouse trailer after permanently fixed to land, ( 1968) Vol34, p 104; vehicles subject to registration, ( 1969) Vol 34, p911.

481. 005

ATTY. GEN. OPINIONS: Removable containers used for

carrying load on oil truck as constituting part of body, 1934 -36, p 596; hoist on dump truck as part of body of truck, 1934 -36, p 596; woodsaw equipment and wrecking craneequipment as part of body, 1934 -36, p 596; gas shovelmounted on motor truck as part of " body" of the truck, 1946 -48, p 56.

481. 015

ATTY. GEN. OPINIONS: Manufacturer who sells automo-

biles direct to retail dealers as a " dealer," 1930 -32, p 417; streets in unincorporated towns which have not been ac-

cepted by the county as ' bounty highways," 1944 -46, p 15; defining " department," 1954 -56, p 159.

481.020

NOTES OF DECISIONS

Intersection of highway with an unused dedicated street

was not a street " intersection" within the meaning of thissection. Santoro v. Brooks, ( 1927) 121 Or 424, 254 P 1019.

ATTY. GEN. OPINIONS: Meaning of terms " hardsurfaced" and " paved" highways, 1932 -34, p 540; road over whichvehicle owner has permit from forestry department to useheavy logging equipment and has to repair same as ahighway," 1940 -42, p 86.

481. 021

ATTY. GEN. OPINIONS: Taxation of house trailers fixed

to land after licensing, ( 1968) Vol 34, p 104.

481.025

CASE CITATIONS: Larison -Frees Chevrolet Co. v. Payne,

1939) 163 Or 276, 96 P2d 1067.

ATTY. GEN. OPINIONS: Purchaser under conditional sales

contract as ' owner," 1952 -54, p 169.

481. 030

CASE CITATIONS: Duffy v. Ore. Auto. Ins. Co., ( 1933) 142

Or 698, 21 P2d 211.

ATTY. GEN. OPINIONS: Person operating motor bus incarrying passengers or their personal effects or both, assubject to payment of license fees, 1934 -36, p 308; licensing

hyster" loading devices as motor vehicles, 1946 -48, p 368; exemption of station wagon used to transport students,

1952 -54, p 173.

481.035

CASE CITATIONS: Peterson v. State Farm Mut. Auto. Ins. Co., ( 1964) 238 Or 106, 393 P2d_ 651.

ATTY. GEN. OPINIONS: " Towermobile" as a motor truck,

1948 -50, p 381; construing motor trucks definition, 1950 -52, p 116.


481.040

CASE CITATIONS: Roy L. Houck & Sons v. State Tax

Comm., ( 1961) 229 Or 21, 366 P2d 166; Volmer v. Volmer,

1962) 231 Or 57, 371 P2d 70; Roy L. Houck & Sons v. State

Tax Comm., ( 1963) 1 OTR 286; Gowin v. Heider, ( 1964) 237

Or 266, 386 P2d 1, 391 P2d 630.

ATTY. GEN. OPINIONS: Mechanical device propelled bywashing machine motor as a motor vehicle, 1930 -32, p 356; when a motor vehicle used on private property may travelfrom one private tract of land to another over public high-

way without being subject to the motor vehicle registrationlaw, 1936 -38, p 405; lessee as owner for purpose of registra-

459

SUPERSEDED

481. 050

tion, 1936 -38, p 683; municipal corporation as owner ofvehicle used and operated for municipal purposes, 1940 -42,

p 355; purchaser under conditional sales contract asowner ", 1952 -54, p 169; construing motor vehicle definition,

1952 -54, p 213; associations of forest landowners asowners" of vehicles used by association, 1956 -58, p 80;

specific exclusion of road rollers, from definition of motor

vehicle, 1958 -60, p 64; construing exemptions, 1962 -64, p 158; application of "owner" definition to fuel tax law, ( 1969) Vol

34, p 911; use of vehicle registration fee for transit, ( 1970) Vol 35, p 198.


481.050

CASE CITATIONS: Calkins v. Lane County, ( 1922) 105 Or127, 208 P 744. '

481.055

ATTY. GEN. OPINIONS: Manufacturers' markings on tires

taken by law enforcement officer as the measurement andreading referred to in this section, 1936 -38, p 360.

481. 060

ATTY. GEN. OPINIONS: Construing definition of trailers, 1952 -54, p 213.

481.070

NOTES OF DECISIONS

Motor vehicle ambulances in general are not excluded

by the statutory definition of " motor vehicle" but onlypolice ambulances. West v. Jaloff, ( 1925) 113 Or 184, 232P 642, 36 ALR 1391.

Bicycles are excluded from the statutory definition of theterm " vehicle." Haynes v. Sprague, ( 1931) 137 Or 23, 295P 964.

Self - propulsion is not an element in the definition of

vehicle." Roy L. Houck & Sons v. State Tax Comm., ( 1963)

1 OTR 286.

FURTHER CITATIONS: Copenhaver v. Tripp, ( 1950) 187Or 662, 213 P2d 450; Roy L. Houck & Sons v. State TaxComm., ( 1961) 229 Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: " Used vehicle" distinguished from

new vehicle," 1956 -58, p 185.

481. 075

NOTES OF DECISIONS

The declaration of subsection ( 1) that the sections listed

are an exercise of police power, while not absolutely con-

trolling, is an important factor in determining the characterof those sections. Briedwell v. Henderson, ( 1921) 99 Or 506,

195 P 575; Camas Stage Co. v. Kozer, ( 1922) 104 Or 600, 209 P 95, 25 ALR 27.

Vehicles not within the exceptions here provided are

necessarily without it. State v. Preston, ( 1922) 103 Or 631, 206 P 304, 23 ALR 414; Portland v. Kozer, ( 1923) 108 Or375, 217 P 833.

The right of a city to regulate motor vehicles by ordinance is not precluded by this section. Covey Garage v. Portland, ( 1937) 157 Or 117, 70 P2d 566.

This chapter imposes license fees as a privilege tax as

a prerequisite for the privilege of using the public highways. Roy L. Houck '& Sons v. State Tax Comm., ( 1961) 229 Or

21, 366 P2d 166.

FURTHER CITATIONS: White Bros. Constr. Co. v. Ore- gon State Police, ( 1967) 246 Or 106, 424 P2d 221.

ATTY. GEN. OPINIONS: Haybaler as an implement of

husbandry, 1926 -28, p 322; equipment for use in baling hayas constituting implements of husbandry, 1932 -34, p 613; whether truck equipped with fire- fighting equipment is afive wagon as question of fact, 194042, p 86; officers enforcing traffic laws of state notwithstanding local laws to sameeffect, 1940 -42, p 144; licensing " hyster" loading devices asmotor vehicles, 1946-48, p 368; exemption of a farm wagon, 1952 -54, pp 207, 224; tank truck used for fire protection asa fire wagon or fine engine, 1954 -56, p 159; licensing as useof police power to grant highway use privilege to qualifiedowners and operators, 1956-58, p 10; use of highways byroad graders and road rollers, 1958 -60, p 64; " implementsof husbandry" defined, 1960 -62, p 68.

481. 090

ATTY. GEN. OPINIONS: Authority to lease buildings forbranch offices, 1950 -52, pp 27, 33, 52.

481. 095

CASE CITATIONS: In re Vilas' Estate, ( 1941) 166 Or 115, 110 P2d 940.

ATTY. GEN. OPINIONS: Service by publication on personwho was a resident at the time of the accident but is a

nonresident when service is attempted, 1948 -50, p 51; licensing as use of police power to grant highway use privilege to qualified owners and operators, 1956 -58, p 10.


481. 105

NOTES OF DECISIONS

Motor vehicles must be registered before being operatedor driven upon the highways of the state. Camas Stage Co. v. Kozer, ( 1922) 104 Or 600, 209 P 95, 25 ALR 27.

The license fee exacted for using motor vehicles on highways is a privilege tax. Id.

Plaintiffs vehicles were within the meaning of this section. White Bros. Constr. Co. v. Oregon State Police, ( 1967) 246 Or 106, 424 P2d 221.

FURTHER CITATIONS: Larison -Frees Chevrolet Co. v. Payne, ( 1939) 163 Or 276, 96 P2d 1067; Dicillo v. Osborn,

1955) 204 Or 171, 282 P2d 611; Roy L. Houck & Sons v.

State Tax Comm., ( 1961) 229 Or 21, 366 P2d 166; Roy L. Houck & Sons v. State Tax Comm., ( 1963) 1 OTR 286;

Gowin v. Heider, ( 1964) 237 Or 266, 386 P2d 1, 391 P2d 630.

ATTY. GEN. OPINIONS: License of motor patrol road

grader, 1930 -32, p 787; authority of Secretary of State tocollect and receive motor vehicle license fees on instalment

plan, 1930 -32, p 720; registration of motor vehicle operatedby State Relief Committee, 1934 -36, p 14; meaning of term

operate" as used in this section, 1936 -38, p 405; registrationof truck leased by cooperative creamery for term of morethan 10 days, 19", , p 68; registering title to a leasedmotor vehicle in name of both lessor and lessee, 1946 -48,

p 322; licensing requirements for tank trucks used for fireprotection, 195456, p 159; licensing of TournapuU, 1956 -58, p 10; properly registered motor vehicles as exempt fromad valorem property tax, 1956 -58, p 64; forest landownersas owners of vehicles used by association, 1956 -58, p 80; personal liability of agent who collects fees, 1956 -58, p 98; registration of road graders and road rollers, 1958 -60, p 64; determining situs of house trailer, 1960 -62, p 248; duty when

460

C

SUPERSEDED

mobile homeowner is different on assessment roll, ( 1970)

Vol 35, p 176.

481. 110

NOTES OF DECISIONS

This statute contemplates that the owner shall secure the

vehicle' s registration in his own name, and that registration

and number plates shall only be granted to one who eitheralready has or is entitled to a certificate of title. Larison- Frees Chevrolet Co. v. Payne, ( 1939) 163 Or 276, 96 P2d

1067.

The phrase " or otherwise entitled to have the same regis-

tered in his name" does not sanction methods out of har-

mony with the statutory procedure. Id. The administrative interpretation by the Secretary of

State evidenced by the form of application for license platesis pertinent only when there is ambiguity in the statute. Id.

FURTHER CITATIONS: Commercial Fin. Corp. v. Burke, 1944) 173 Or .341, 145 P2d 473, 151 ALR 684; Dicillo v.

Osborn, ( 1955) 204 Or 171, 282 P2d 611; Gowin v. Heider,

1964) 237 Or 266, 386 P2d 1, 391 P2d 630. .

ATTY. GEN. OPINIONS: Certificate of title and fee requisite

to motor vehicles owned by state and municipal corporations, 1926 -28, p 468; authority of a bona fide resident ofan adjoining sister state to operate an automobile registered

in such state even though gainfully employed and temporarily employed in Oregon, 1942 -44, p 389; determiningif applicant- has right to certificate of title, 1952 -54, p 169; determining situs of house trailer, 1960 -62, p 248.


481. 115

NOTES OF DECISIONS

This section recognizes that ownership of a motor vehicleis not dependent upon the certificate of title or the registra-

tion and license of the vehicle. Fagg v. Mass. Bonding Ins. Co., ( 1933) 142 Or 358, 19 P2d 413.

Indorsements or assignments on the backs of the certificates are not made prima facie evidence of the facts thereinstated. Hayes v. Ogle, ( 1933) 143 Or 1, 21 P2d 223.

This statute contemplates that the owner shall secure the

vehicle's registration in his own name, and that registration

and number plates shall only be granted to one who eitheralready has or is entitled to a certificate of title. Larison- Frees Chevrolet Co. v. Payne, ( 1939) 163 Or 276, 96 P2d

1067.

Certificate of title is only prima facie evidence of ownership. Mogul Trans. Co. v. Larison, ( 1947) 181 Or 252, 181P2d 139.

The presumption created by this section relates to therepository of title and not beneficial ownership. Dicillo v. Osborn, ( 1955) 204 Or 171, 282 P2d 611.

Effect of the certificate of title as prima facie evidence

of ownership may be overcome. Wiebe v. Seely, ( 1959) 215Or 331, 335 P2d 379.

A purchaser of a vehicle who receives a properly indorsedcertificate of title in circumstances which would not put

an ordinary person on inquiry is protected when the owneris estopped to assert title because of misplaced trust in a

wrongdoer. Valley Motor Co. v. Ralls, ( 1960) 224 Or 290, 355 P2d 1100.

FURTHER CITATIONS: Ruddy v. Ore. Auto. Cred. Corp., 1946) 179 Or 688, 174 P2d 603; Bolton v. Schimming, ( 1961)

226 Or 330, 360 P2d 540.

461

481. 155


481. 117

NOTES OF DECISIONS

This section recognizes that ownership of a motor vehicleis not dependent upon the certificate of title or the registra-

tion and license of the vehicle. Fagg v. Mass. Bonding Ins. Co., ( 1933) 142 Or 358, 19 P2d 413.

Prima facie evidence of ownership is overcome and isa question of law when there is clear, uncontradicted evi-

dence which could not reasonably arouse disbelief showingownership in one other than registrant. Wiebe v. Seely, 1959) 215 Or 331, 335 P2d 379.

Registration of title is prima facie evidence of ownership. Colby v. Long, ( 1961) 289 F2d 137.

An indorsement or assignment by the owner on the backof a certificate of title to a motor vehicle is competent

evidence on an issue of ownership. South Seattle AutoAuction, Inc. v. Ladd, ( 1962) 230 Or 350, 370 P2d 630.

FURTHER CITATIONS: Gowin v. Heider, ( 1963) 237 Or 266, 386 P2d 1.

ATTY. GEN. OPINIONS: Issuance of license while owner-

ship is being litigated, 1952 -54, p 169; forest landowners asowners of vehicles used by association, 1956 -58, p 80; impounding of leased vehicle, 1966 -68, p 420; impoundmentprocedure, 1966 -68, p 461.


C,!; I 11 Pz7

ATTY. GEN. OPINIONS: School districts as entitled to

exemption provided in statute, 1920 -22, p 488; license feerequired for automobile owned by county school superintendent and leased to county, 1926 -28, p 103; exemption ofmotor vehicles owned and operated by church, 1928 -30, p47; water district as a political subdivision entitled to refund

of registration or license fees erroneously paid, 1930 -32, p573; forest landowners as owners of vehicles used by association, 1956 -58, p 80; exemption extending to home waterdistrict of Multnomah County, 1960 -62, p 292.

481. 135

ATTY. GEN. OPINIONS: Registration for all vehicles usingpublic ways as part of comprehensive system, 1958 -60, p64.

481. 150

ATTY. GEN. OPINIONS: Cancellation of certificate of title,

1970) Vol 35, p 176.

481. 155

NOTES OF DECISIONS

Law requiring registration of interstate automobiles, didnot violate the interstate commerce clause of the U.S. Con- stitution. Camas Stage Co. v. Kozer, ( 1922) 104 Or 600, 209P 95, 25 ALR 27.

FURTHER CITATIONS: Volmer v. Volmer, ( 1962) 231 Or

57, 371 P2d 70.

ATTY. GEN. OPINIONS: Resident of Washington, owninga farm in Oregon and operating a motor truck bearing aWashington license in hauling products from said farm toa warehouse 50 miles awa, over state highways, as oper-

ating a motor vehicle over the highways of Oregon for

SUPERSEDED

481. 165

compensation or profit, 1936 -38, p 665; construction of termduring but not beyond the current registration year,"

1942- 44, p 389.

481. 165

CASE CITATIONS: Camas Stage Co. v. Kozer, ( 1922) 104

Or 600, 209 P 95, 25 ALR 27.

ATTY. GEN. OPINIONS: When a resident of Oregon hold-

ing an operator' s license may legally operate a motor vehicle owned by another and registered in another state, 1930 -32, p 83; resale by dealer of repossessed car bearinglicense plates issued by another state, 1930 -32, p 602.

481. 170

NOTES OF DECISIONS

This section confers upon the Secretary of State authorityto issue a certificate of title to an automobile from another

state, based upon the evidence contained in the certificate

of title issued by such other state. Maxwell Co. v. So. Ore. Gas Corp., ( 1938) 158 Or 168, 74 P2d 594, 75 P2d 9, 114 ALR697.

ATTY. GEN. OPINIONS: Authority of a bona fide residentof an adjoining sister state to operate an automobile registered in such state though gainfully employed and temporarily living in Oregon, 1942 -44, p 389.

481. 177


Comm., ( 1961) 229 Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: Use of highways by road gradersand road rollers, 1958 -60, p 64.

481.205 to 481.225


Comm., ( 1961) 229 Or 21, 366 P2d 166.

481.205

ATTY. GEN. OPINIONS: Classification for purposes of

registration of three - wheeled vehicle made by assemblingparts of motorcycle and automobile, 1930 -32, p 750; " Tow - enmobile" as " motor truck" for purposes of registration

fee, 1948 -50, p 381; operation of Tournapull on highways, 1956 -58, p 10; properly registered motor vehicles as exemptfrom ad valorem property tax, 1956 -58, p 64; fuel tax proposed to acquire beach property, ( 1968) Vol 34, p 139; registration of vehicles not covered under this section, ( 1968)

Vol 34, p 139.

481. 210

CASE CITATIONS: Powers v. Coos Bay Lbr. Co., ( 1954)

200 Or 329, 263 P2d 913; Roy L. Houck & Sons v. State

Tax Comm., ( 1961) 229 Or 21, 366 P2d 166; California v. Buzard, ( 1966) 382 US 386, 394, 86 S Ct 483, 15 L Ed 2d

442.

ATTY. GEN. OPINIONS: " Towermobile" as a motor truck,

1948 -50, p 381; fees for vehicles with a load extending morethan three feet beyond the front thereof, 1956 -58, p 132; application to mobile cranes mounted on motor trucks,

196466, p 123; fuel tax proposed to acquire beach property, 1968) Vol 34, p 139.

481. 215

ATTY. GEN. OPINIONS: Station wagon used exclusivelyfor transportation of students to instructions as exempt

from private carrier classification, 1952 -54, p 173; fuel taxproposed to acquire beach property, ( 1968) Vol 34, p 139.

481.220

ATTY. GEN. OPINIONS: Weight of hoist included as part

of dump truck body in determining weight of truck, 1934 -36, p 208; the revolving drum on a truck used for transportingconcrete as a part of the body of the truck in determiningthe weight of the truck, 1944 -46, p 90.

481. 225

ATTY. GEN. OPINIONS: Gratuitous transportation of

horses for a neighboring farmer by a farmer owning andoperating a truck licensed at one -half the regular fee, 1936- 38, p 205; operator of apiaries as farmer, 193840, p 754; farm truck used to transport lumber as incident to farmingoperations, 1948 -50, p 65; transportation of horses and cattleto rodeo as exclusively in connection with farm operation, 1956 -58, p 131; farmer hauling rock and gravel as exemptunder this section, 1962 -64, p 158; fuel tax proposed toacquire beach property, ( 1968) Vol 34, p 139.

CASE CITATIONS: Goodrich Silvertown Stores v. Collins, 1941) 167 Or 40, 115 P2d 332.

ATTY. GEN. OPINIONS: Authority of Secretary of Stateto delegate to motor associations, or other private agencyor organizations, power to accept motor vehicle license

applications and fees to deliver permanent license plates

to applicants, 1934 -36, p 120.

481. 240

ATTY. GEN. OPINIONS: When plates can be transferred

from one vehicle to another, 1938 -40, p 349; registering oftruck permanently withdrawn from service in Oregon bya different owner, 1940 -42, p 140; relicensing vehicles withdrawn from service and whose licenses have been trans-

ferred to other vehicles, 1940 -42, p 305.

481. 245

ATTY. GEN. OPINIONS: Return of checks for fees with

incomplete applications, 1962 -64, p 481.

481.255

NOTES OF DECISIONS

A city employe driving a city car without license platesviolates this section. State v. Preston, ( 1922) 103 Or 631,

206 P 304, 23 ALR 414.

FURTHER CITATIONS: In re Boalt, ( 1927) 123 Or 1, 260

P 1004.

ATTY. GEN. OPINIONS: Licensing requirements for tanktrucks used for fire protection, 1954 -56, p 159; jurisdictionof Portland municipal courts over violations, 1956 -58, p 28.

481.260

NOTES OF DECISIONS

Authorization of temporary permits did not relax requirement that applicant must be entitled to a certificate

462

C

SUPERSEDED

of title nor modify provisions governing the method ofsecuring new registration and certificate of title when a caris sold. Larison -Frees Chevrolet Co. v. Payne, ( 1939) 163

Or 276, 96 P2d 1067.

ATTY. GEN. OPINIONS: Licensing requirements for tanktrucks used for fire protection, 1954 -56, p 159.

481.270

NOTES OF DECISIONS

An amendment of an Act may be resorted to for discoveryof the legislative intention in the enactment amended. -RoyL. Houck & Sons v. State Tax Comm., ( 1961) 229 Or 21,

366 P2d 166; Roy L. Houck & Sons v. State Tax Comm.,

1963) 1 OTR 286.

This section is a valid exercise of the police power. Camas

Stage Co. v. Kozer, ( 1922) 104 Or 600, 602, 209 P 95, 25 ALR

27.

A municipal license fee imposed on a carrier of passengers

of motor vehicle between two cities, not being for regulatory purposes, is invalid. Parker v. Silverton, ( 1923) 109 Or298, 220 P 139, 31 ALR 589.

Vehicles are exempt from all other taxes and licenses

except municipal license fees. Martine v. Kozer, ( 1926) 11

F2d 645.

License tax, imposed on motor vehicles by city for regulatory purposes, should not materially exceed approximateanticipated expense of issuing licenses and inspecting andregulating vehicles so as to require compliance with regulations. In re Fine, ( 1928) 124 Or 175, 264 P 347.

Further vehicular regulations by municipalities may beadopted in addition to the regulations imposed by statelaws. Covey Garage v. Portland, ( 1937) 157 Or 117, 70 P2d566.

The fact that the imposition of a five cent parking feeby parking meter ordinances resulted in considerable revenue to the city did not classify as revenue measures theordinances which were unquestionably enacted for trafficregulation and not for revenue, and which authorized application of the revenue to the broad purposes of general

traffic control without limitation to the mere installation,

operation and maintenance of the meters. Hickey v. Riley, 1945) 177 Or 321, 162 P2d 371.

The assessor was estopped to deny a June 6 filing dead- line when he sent an outdated form for requesting cancellation. Johnson v. State Tax Comm., ( 1967) 248 Or 460, 435

P2d 302, affg 2 OTR 504; Contra, Friendly Chevrolet v. State Tax Comm., ( 1968) 3 OTR 235.

When assessor sent taxpayer forms showing incorrectfiling date for application for exemption, exemption filedlate was allowed. Johnson v. State Tax Comm., ( 1967) 2

OTR 504, affd, 248 Or 460, 435 P2d 302.

FURTHER CITATIONS: Stevens v Hurlburt, ( 1922) 104 Or

233, 207 P 167; Northwest Auto Co. v. Hurlburt, (1922) 104

Or 398, 207 P 161; Covey Motor Co. v. Hurlburt, ( 1922) 104Or 414, 207 P 166; Dent v. Oregon City, ( 1923) 106 Or 122, 211 P 909; Lyons v. Portland, ( 1925) 115 Or 533, 235 P 691;

California v. Buzard, ( 1966) 382 US 386, 394, 86 S Ct 483, 15 L Ed 2d 442; M & S Constr. Co. v. Commission, ( 1968)

3 OTR 165; Century Pontiac, Inc. v. State Tax Comm., 1968) 3 OTR 205; Bernard Chevrolet Co. v. State Tax

Comm., ( 1969) 3 OTR 411.

ATTY. GEN. OPINIONS: Authority of Department of Agri- culture to collect registration fees for bakery vehicles asprovided by ORS 625.180, notwithstanding this section, 1942 -44, p 415; trailer houses for which application for registration has not been made by January 1, as subject toassessment for ad valorem taxation, 1946 -48, p 159; validityof an additional tax on certain motor vehicles, 1950 -52, p

481. 310

116; validity of assessment of motor vehicle transportationcompanies, 1950 -52, p 131; taxability of Tournapull as personal property, 1956 -58, p 10; imposition of ad valorem taxeson vehicles, 1956 -58, p 64; personal property taxes on motorvehicle fuel, 1956 -58, p 192; taxability of unregistered roadgraders and road rollers, 1958 -60, p 64; application to mobilecranes mounted on motor trucks, liability for ad valoremtaxes on mobile cranes used as log loaders, 1964 -66, p 123.

LAW REVIEW CITATIONS: 6 WLI 587 -596.

481.272

NOTES OF DECISIONS

Self- propelled mobile cranes were not exempt from taxa-

tion on January 1, 1963. Oldham v. State Tax Comm., ( 1964)

2 OTR 40.

Plaintiff's van -type trailers were designed for transportation and were not fixed load vehicles subject to ad valorem

taxes. M & S Constr. Co. v. State Tax Comm., ( 1968) 3 OTR165.

FURTHER CITATIONS: Roy L. Houck & Sons v. State Tax

Comm., ( 1961) 229 Or 2i, 366 P2d 166; Roy L. Houck & Sons v. State Tax Comm., ( 1963) 1 OTR 286.

ATTY. GEN. OPINIONS: Application to mobile cranes

mounted on motor trucks, liability for ad valorem taxeson mobile-cranes used as log loaders, 1964 -66, p 123.

481. 305 to 481. 340

CASE CITATIONS: Butte Motor Co. v. Strand, ( 1960) 225

Or 317, 358 P2d 282.

481. 305

CASE CITATIONS: Ramp v. Osborne, ( 1925) 115 Or 672, 239 P 1, 12; Randolph v. Delaney Ford, Inc., ( 1966) 245 Or

226, 420 P2d 642.

ATTY: GEN. OPINIONS: Licensing of person selling ortrading motor vehicles upon a commission basis for a licensed dealer in motor vehicles, 1926 -28, p 259; assignmentor transfer of motor vehicle dealer's license and bond,

1926 -28, p 304; necessity of application for new licensewhere partnership is dissolved and new partnership isformed, 1926 -28, p 572; what constitutes legal notice sufficient to effect a cancelation of motor.vehicle dealer' s bond,

1930 -32, p 229; duty of dealer who is also carrying on thebusiness of an automobile wrecker to file bonds and secure

licenses under both classifications, 1932 -34, p 255; authorityto revoke certificate on application for dealer's license,

1952 -54, p 213; " used vehicle" distinguished from " newvehicle," 1956. 58, p 185; legality of dealei or lessor disconnecting odometer, ( 1969) Vol 34, p 811.

481. 310

NOTES OF DECISIONS

The failure to perform a promise relating to future actionor conduct does not constitute fraud. Warner Motor Co.

v. Strand, ( 1960) 225 Or 315, 358 P2d 282; Butte Motor Co.

v. Strand, ( 1960) 225 Or 317, 358 P2d 279.

The liability of a surety under a statutory bond is measured and defined by the statute requiring the bond, andany additions not required by the statute are void and maybe treated as surplusage. Id.

The surety is not liable unless the dealer' s violation ofthis chapter is the cause of the loss. Randolph v. DelaneyFord, Inc., ( 1966) 245 Or 226, 420 P2d 642.

The case was properly submitted to jury for consideration

463

SUPERSEDED

481. 320

of surety' s liability after verdict was directed against principal. Kliks v. McCaffrey, ( 1960) 221 Or 81, 350 P2d 417.

FURTHER CITATIONS: Commercial Sec. Inc. v. Gen. Ins.

of Am., ( 1966) 269 F Supp 398.

ATTY. GEN. OPINIONS: Assignment or transfer of motor

vehicle dealer's license and bond, 1926 -28, p 304; requirement that bond of motor vehicle dealer contain addresses

of all such dealer's places of business and names under

which he is operating, 1930 -32, p 146; legality of dealer orlessor disconnecting odometer, ( 1969) Vol 34, p 811.


481. 320

ATTY. GEN. OPINIONS: Registration and payment of

registration fee by motor vehicle dealer as compulsory, 1932 -34, p 365; authority to revoke certificate on applicationfor dealer's license, 1952 -54, p 213.

481.325

NOTES OF DECISIONS

A dealer's license plate does not constitute evidence of

ownership. Ramp v. Osborne, ( 1925) 115 Or 672, 239 P 112. That a car was being driven on the dealer' s business is

a reasonable inference from the fact that it bore the dealer' slicense. Miller v. Service and Sales, ( 1934) 149 Or 11, 38 P2d

995, 96 ALR 628.

A disputable presumption of ownership of an automobileby defendant is created by the presence on it of his dealer'slicense plates. Henry v. Condit, ( 1936) 152 Or 348, 53 P2d722, 103 ALR 131.

ATTY. GEN. OPINIONS: Use of dealer's license upon motorvehicles used in connection with the operation of a garage

or repair shop, 1924 -26, p 496; use of dealers' license plates, 1926 -28, p 176; right of dealer to allow automobile bearingdealer' s license plates to be used by prospective purchaser, 1928 -30, p 74; fees for issuance of duplicate set of licenseplates, 1928 -30, p 441.

481.330

ATI'Y. GEN. OPINIONS: Right of motor vehicle dealer to

move its place of business from one city to another, 1926 -28, p 572; licensing of' salesmen of motor vehicle dealers wholive in another city than that of dealer's business, 1928 -30, p 73.

481. 335

ATTY. GEN. OPINIONS: Sheriffs authority to sign certificates for dealers within the limits of a city, 1952 -54, p 213.

481. 345 to 481. 370

ATTY. GEN. OPINIONS: Authority of State HighwayCommission to comply with Highway Beautification Act, 1964 -66, p 336.

481.345

ATTY. GEN. OPINIONS: Persons required to obtain a li-

cense for " carrying on the business" of wrecking automobiles, 1932 -34, pp 255, 432; revocation of wrecker' s licensewhen recommendation was signed by the county judge, 1952 -54, p 205.

481. 350

ATTY. GEN. OPINIONS: Cancellation of wrecker's license

for failure to meet conditions precedent to issuance, 1952 -54,

p 205; authority to revoke certificate on application fordealer's license, 1952 -54, p 213.

481.370

ATTY. GEN. OPINIONS: Construing " solid enclosure," 1962 -64, p 256.

481.405

NOTES OF DECISIONS

This section does not provide an exclusive method of

transferring title to motor vehicles. Maxwell Co. v. So. Ore. Gas Corp., ( 1938) 158 Or 168, 74 P2d 594, 75 P2d 9, 114 ALR

697; Larison -Frees Chevrolet Co. v. Payne, ( 1939) 163 Or

276, 96 P2d 1067.

Failure to notify the department, does not affect thevalidity of the sale, but transferee's title is good exceptagainst persons, creditors or innocent purchasers misled bythe record. South Seattle Auto Auction, Inc. v. Ladd, ( 1962)

230 Or 350, 370 P2d 630; Twombley v. Wulf, ( 1971) 258 Or188, 482 P2d 166.

A buyer's failure to forward the receipt of registration

to the Secretary of State within 10 days did not resultin a loss of his ownership of the vehicle. Thiering v. Gage, 1930) 132 Or 92, 284 P 832.

Prima facie evidence of ownership of the vehicle is furnished by introduction in evidence of the assignment onthe back of the title certificate. Hayes v. Ogle, ( 1933) 143

Or 1, 21 P2d 223.

A certified copy of the record of the certificates andassignments filed with the Secretary of State is admissiblein evidence. Id.

A presumption that an assignment was made on the date

it bears arises by the introduction in evidence of the assignment on the back of the certificate. Id.

A person makes himself subject to a penalty by failingto comply with this section and, where the rights of thirdparties who rely on the record title intervene, an attempted sale may be voided. Maxwell Co. v. So. Ore. GasCorp., ( 1938) 158 Or 168, 74 P2d 59.4, 75 P2d 9, 114 ALR697.

An indorsement or assignment by the owner on the backof a certificate of title to a motor vehicle is competent

evidence on an issue of ownership. South Seattle AutoAuction, Inc., v. Ladd, ( 1962) 230 Or 350, 370 P2d 630.

Failure to comply with this section was not conclusivein an action for breach of warranty of title to sale of anautomobile, against plaintiffs theory that he purchased theautomobile. Maxwell Co. v. Southern Ore. Gas Corp., (1938) 158 Or 168, 74 P2d 594, 75 P2d 9, 114 ALR 697.

FURTHER CITATIONS: Sargent v. Pendleton Auto Co.,

1927) 121 Or 677, 257 P 23; Commercial Fin. Corp. v. Burke, 1944) 173 Or 341, 145 P2d 473, 151 ALR 684; Dicillo v.

Osborn, ( 1955) 204 Or 171, 282 P2d 611; Valley Motor Co. v. Rails, ( 1960) 224 Or 290, 355 P2d 1100.

ATTY. GEN. OPINIONS: Duty of dealer who is also carrying on the business of an automobile wrecker to file bondsand secure licenses under both classifications, 1932. 34, p255; mandatory issuance of certificate of title involvingpurchases from dealer, 1952 -54, p 169; term of impoundmentof leased vehicle, 1966 -68, p 437; duty when mobile homeowner is different on assessment roll, ( 1970) Vol 35, p 176.

464

SUPERSEDED

r 481.410

ATTY. GEN. OPINIONS: Requiring or permitting issuanceof a new certificate of title in case of the assignment of

mortgage on the motor vehicle by the mortgagee, 1928 -30, p 536; making of loan secured by second mortgage upona motor vehicle, 1936 -38, p 362; filing of notice of claim oflien with Secretary of State, 1948 -50, p 302.


4SIA15

CASE CITATIONS: Larison -Frees Chevrolet Co. v. Payne, 1939) 163 Or 276, 96 P2d 1067.

ATTY. GEN. OPINIONS: Determining if applicant has rightto certificate of title, 1952 -54, p 169.

481.420

NOTES OF DECISIONS

The presence upon a car of a dealer' s plates creates adisputable presumption that he owns the car, in an action

arising out of an accident in which such car was involved. Henry v. Condit, ( 1936) 152 Or 348, 53 P2d 722, 103 ALR131.

481.430

CASE CITATIONS: Gowin v. Heider, ( 1963) 237 Or 266, 386

P2d 1.

ATTY. GEN. OPINIONS: Meaning of "new" motor vehicle, 1956 -58, p 185.

481.450 to 481. 512

ATTY. GEN. OPINIONS: Determining situs of house trailer, 1960 -62, p 248; charging administrative expenses againstcollections, 196466, p 295; taxation of house trailers fixedto land after licensing, ( 1968) Vol 34, p 104; fuel tax proposed to acquire beach property, ( 1968) Vol 34, p 139.

481. 460

ATTY. GEN. OPINIONS: Charging administrative expensesagainst collections, 1964 -66, p 295.

481. 990

481.915

ATTY. GEN. OPINIONS: Migratory chattel function transferred to Department of Motor Vehicles, 1956 -58, p 7.

481.950

ATTY. GEN. OPINIONS: Appointment of director, 1954 -56,

p 225.

481. 940

LAW REVIEW CITATIONS: 1 WU 148, 152, 225.

481.950

CASE CITATIONS: Martine v. Kozer,.( 1926) 11 F2d 645.

ATTY. GEN. OPINIONS: Transfer of migratory chattelfunction to Department of Motor Vehicles, 1956 -58, p 7; liability of collection agent for stolen license fees, 1956 -58, p 98; including funds from Use Fuel Tax in apportionedfunds, 1960 -62, p 338; use of unclaimed motor boat fuel taxrefund, 1962 -64, p 67; return of checks for fees with incomplete applications, 1962 -64, p 481; charging administrativeexpenses against aircraft fuel tax collections, house trailer

fees, Student Driver Training fees and fees for Motor Vehi- cle Accident Fund, 1964 -66, p 295; use of State HighwayFund money except on county roads, 1966 -68, p 571.

481. 990

NOTES OF DECISIONS

Stolen" was not intended to include only automobilestaken from the owners by acts of trespass. State v. Stuart,

1968) 250 Or 303, 442 P2d 231.

An indictment, substantially in the language of the statute, charging defendant with having " reason to believe" the vehicle was stolen was not unconstitutionally vague.

State v. Gulbrandson, ( 1970) 2 Or App 511, 470 P2d 160.

FURTHER CITATIONS: Landreth v. Gladden, ( 1958) 213

Or 205, 324 P2d 475; State v. Dickson, ( 1966) 244 Or 114, 415 P2d 739.

ATTY. GEN. OPINIONS: Duty when mobile home owneris different on assessment roll, ( 1970) Vol 35, p 176.

465

LAW REVIEW CITATIONS: 48 OLR 293 -299.

SUPERSEDED

Chapter 482

Operators' and Chauffeurs' Licenses

Chapter 482

CASE CITATIONS: State v. Wojahn, ( 1955) 204 Or 84, 282

P2d 675; Stehle v. Dept. of Motor Vehicles, ( 1962) 229 Or

543, 368 P2d 386, 97 ALR2d 1359.

ATTY. GEN. OPINIONS: Owner and operator of truck as

chauffeur, 1948 -50, p 200; authority of Secretary of Stateto establish branch offices for administration of this chapter, 1950 -52, p 27; payment by State Treasurer of expensesof branch office established by Secretary of State, 1950 -52, p 33; payment of operating expenses by State Treasurer, 1950 -52, p 52; licensing authority as exclusively within powers of Secretary of State, 1950 -52, p 306; funds receivedunder this chapter as deposited in State Treasury, 1960 -62, p 338; transfer of funds after expenses to State HighwayFund, 1962 -64, p 67; funds excepted from operation of ORS481.950, 1964 -66, p 295; state traffic offense as violationinvolving misdemeanor penalty, 1966 -68, p 420.

482.010

CASE CITATIONS: State v. Robinson, ( 1963) 235 Or 524,

385 P2d 754; City of Oakland v. Moore, ( 1969) 1 Or App80, 457 P2d 659, Sup Ct review denied.

ATTY. GEN. OPINIONS: Operators of motor vehicles sell-

ing bakery products as " chauffeurs," 1938 -40, p 582; onewho transports another's logs on trucks, pursuant to a

contract based on valuable consideration as " chauffeur,"

194446, p 499; owner and operator of a truck as a " chauffeur," 1948 -50, p 200; teachers, principals, coaches and certain students as " chauffeurs," 1950 -52, p 233.


482.020

NOTES OF DECISIONS

Definition of " operator" in this section is not binding inconstruing insurance contracts. Schaeffer v. Mill OwnersIns. Co., ( 1965) 242 Or 150, 407 P2d 614.

FURTHER CITATIONS: Volmer v. Volmer, ( 1962) 231 Or

57, 371 P2d 70.

488.030

ATTY. GEN. OPINIONS: Suspension of license of driver

found guilty of reckless driving in another state, 1950 -52, p 80.

482.040

NOTES OF DECISIONS

The record did not support a holding that the confessionwas a product of illegal arrest and custody. Allen v. Cupp,

1970) 426 F2d 756, rev'g 298 F Supp 432. Superseding Statev. Allen, ( 1967) 248 Or 376, 434 P2d 740.

FURTHER CITATIONS: State v. Allen, ( 1965) 239 Or 524,

398 P2d 477; State v. Riner, ( 1971) 92 Or App Adv Sh 1493, 485 P2d 1234, Sup Ct review denied.

ATTY. GEN. OPINIONS: Duty of Oregon motorist to obtainoperator' s license although he has a California operator's

license, 1930 -1932, p 327; liability of examiner for accidentduring driving examination of unlicensed operator, 1930 -32, p 463; classification of certain public service company employes and electric company employes as chauffeurs, 1930- 32, p 662; mail carrier as chauffeur, 1932 -34, p 450; ownerand operator of truck as chauffeur, 1948 -50, p 200; persondriving during period when his suspended driver's licensewould have expired, 1954 -56, 139; simultaneous charges

under ORS 482.300 and 482.650, 1966 -68, p 459.

482.050

CASE CITATIONS: State v. Allen, ( 1967) 248 Or 376, 434

P2d 740; Allen v. Cupp, ( 1970) 426 F2d 756; State v. Riner, 1971) 92 Or App Adv Sh 1493, 485 P2d 1234, Sup Ct review

denied

ATTY. GEN. OPINIONS: Residence of person living in thisstate with his family, so as to be convenient to his work, although he intends to return to the state of his domicileon termination of his employment at some indefinite future

time, 1942. 44, p 214.

482.060

ATTY. GEN. OPINIONS: Oregon resident driving with Cal- ifornia driver's license, 1930 -32, p 327; liability of examinerfor accident during driving examination of unlicensed operator, 1930 -32, p 463; classification of certain public serviceemployes and electric company employes as chauffeurs,

1930 -32, p 662; mail carrier as chauffeur, 1932 -34, p 450; exempting United States Army personnel operating officialvehicle, 1948 -50, p 430; persons expressly exempted fromlicensing requirements, 1954 -56, p 139.

482. 110

NOTES OF DECISIONS

This provision is a legislative determination that a child

of the age stated does not possess the judgment and discre-

tion necessary to operate a vehicle upon a public highway. Millar v. Semler, ( 1931) 137 Or 610, 2 P2d 233, 3 P2d 987.

The owner of an automobile permitting a child of theage forbidden by the statute to drive, to operate an automobile on a public street is liable for resultant injury toa person not at fault. Id.

Implicit in this section is the policy that the behavior ofchildren and of adults is to be judged by the same standard. Nielsen v. Brown, ( 1962) 232 Or 426, 374 P2d 896.

466

SUPERSEDED

C J

482. 160

NOTES OF DECISIONS

An automobile liability indemnity insurance policy excepting operators under " age fixed by law" covered liabilityfor an injury occurring while the automobile was drivenby an unlicensed person 15 years of age on way home fromschool. Johnson v. Travelers' Ins. Co., ( 1934) 147 Or 345,

32 P2d 587.

ATTY. GEN. OPINIONS: Persons expressly exempted fromlicensing requirements, 1954 -56, p 139.


482. 170

CASE CITATIONS: Nielsen v. Brown, ( 1962) 232 Or 426,

374 P2d 896.

ATTY. GEN. OPINIONS: Payment of additional beginner's

permit fee to Student Driver Training Support Fund asunconstitutional, 195456, p 95; persons expressly exemptedfrom licensing requirements, 1954 -56, p 139.

482. 190 to 482. 198


482.220

CASE CITATIONS: Johnson v. Travelers' Ins. Co., ( 1934)

147 Or 345, 32 P2d 587.


482.230

ATTY. GEN. OPINIONS: Necessity of parent' s signature onapplication of married girl under 18, 1930 -32, p 352.

rail:

NOTES OF DECISIONS

Blindness in one eye did not incapacitate per se defendant

from operating a motorcycle under former similar statuteincapacitating persons whose eyesight was greatly impaired. Wilson v. Bittner, ( 1929) 129 Or 122, 276 P 268, 64ALR 132.

LAW REVIEW CITATIONS: I WU 581.

482.250

ATTY. GEN. OPINIONS: Subsection ( 5) as tax rather than

regulation, 195456, p 94; student driver training fund, 1956 -58, p 101; charging administrative expenses againstcollections for Student Driver Training and Motor VehicleAccident Fund, 1964 -66, p 295; separability of 1965 amendment, 196466, p 326; liability for prior expenses of collectingMotor Vehicle Accident Fund, 1966 -68, p 222.

482.260

CASE CITATIONS: Dungey v. Fairview Farms, Inc., ( 1955)

205 Or 615, 290 P2d 181; Stehle v. Dept. of Motor Vehicles, 1962) 229 Or 543, 368 P2d 386, 97 ALR2d 1359.

ATTY. GEN. OPINIONS: Liability of examiner for accidentduring driving examination of unlicensed operator, 1930 -32, p 463; authority of Secretary of State to withhold from the

482.430

public the names of persons requesting reexamination ofdrivers, 1950 -52, p 104.

482.270

ATTY. GEN. OPINIONS: Violation of special restricted

license following suspension of original license as drivingwithout license, 1950 -52, p 306; persons expressly exemptedfrom licensing requirements, 195456, p 139.

482.280

ATTY. GEN. OPINIONS: Application of subsection ( 3) to

violation of special restricted license issued after suspension

of ordinary driver's license, 1950 -52, p 306.

482.290

NOTES OF DECISIONS

Failure to report change of address does not relieve

plaintiff from conforming to statutes requiring due diligence. State ex rel. Pratt v. Main, ( 1969) 253 Or 408, 454

P2d 643.

482.300


P2d 740.

ATTY. GEN. OPINIONS: Introduction of license at trial as

perfect defense, 195456, p 139; simultaneous charges underthis section and ORS 482.650, 1966 -68, p 459.

482.310

ATTY. GEN. OPINIONS: Liability of examiner for damagesresulting from an accident while conducting examination, 1930 -32, p 463.

CE: Y 4cYdC

ATTY. GEN. OPINIONS: Secretary of State as required tofile, as a public record, any information concerning applicants for operators' licenses, not contained in application,

1934 -36, p 293; furnishing information relating to recordsand files of operators' and chauffeurs' licenses to interested

parties, 1938 -40, p 660; records maintained under this sectionas public records, 1950 -52, p 104.

482.420

ATTY. GEN. OPINIONS: Licenses as issued for two years,

1954 -56, p 139.

467

482.430

CASE CITATIONS: State v. Robinson, ( 1963) 235 Or 524, 385 P2d 754.

ATTY. GEN. OPINIONS: Revocation of license for a con-

viction of crime, 1930 -32, p 672; relation back of revocationof license, 1930 -32, p 749; revocation of license though conviction for driving while intoxicated is appealed, 1934 -36, p 33; right of person whose motor vehicle license has beenrevoked to operate a fire truck of a fire department of an

incorporated city without having such license reinstated, 1936 -38, p 27; violation of special restricted license followingsuspension of original license as driving without license, 1950 -52, p 306; reinstatement of license in recognition ofa court' s recommendation, 1952 -54, p 234.

SUPERSEDED

482.440

CASE CITATIONS: Stehle v. Dept. of Motor Vehicles, (1962) 229 Or 543, 368 P2d 386, 97 ALR2d 1359,

ATTY. GEN. OPINIONS: Violation of special restricted

license following suspension of original license as drivingwithout license, 1950 -52, p 306; person driving without license during period when his suspended driver's licensewould have expired, 1954 -56, p 139; simultaneous chargesunder ORS 482.300 and 482.650, 1966 -68, p 459.

482.450

NOTES OF DECISIONS

Reinstatement of a license does not purge the driver' s

record of prior violations, and it is proper for the depart-

ment or court to take into account such violations alongwith new violations charged in determining whether petitioner' s license should be revoked or suspended. Stehle v.

Dept. of Motor Vehicles, ( 1962) 229 Or 543, 368 P2d 386, 97 ALR2d 1359.

ATTY. GEN. OPINIONS: Suspension of license of driver

found guilty of reckless driving in another state, 1950 -52, p 80; discretionary suspension by Secretary of State, 1950- 52, p 306.

LAW REVIEW CITATIONS: I WLI 226, 228.

482.460

ATTY. GEN. OPINIONS: Forfeiture of bail whether in a

court of this or a sister state as supporting a revocationof a motor vehicle operator's license, 194244, p 436; suspension of license of driver found guilty of reckless drivingin another state, 1950 -52, p 80.

482.470

ATTY. GEN. OPINIONS: Suspension of special restricted

license, 1950 -52, p 306; automatic termination of suspensionperiod, 1954 -56, p 139.

482.480

ATTY. GEN. OPINIONS: Forwarding by city recorders ofabstract court record to the Secretary of State, 1930 -32, p404; rescinding revocation of a motor vehicle operator' slicense, for conviction of law violation, by the Secretaryof State upon receipt of written notice from the judge beforewhom the conviction occurred that an appeal from the

conviction has been duly taken by the licensee, 1944 -46, p38; suspension of license of driver found guilty of recklessdriving in another state, 1950 -52, p 80; recommendation ofconvicting court for partial reinstatement, 1950 -52, p 306; reinstatement of license in recognition of a court' s recom-

mendation, 1952 -54, p 234; authority of department to acton a juvenile court recommendation for other than motor

vehicle related violation, 1966 -68, p 128.

482.490

NOTES OF DECISIONS

Reinstatement of a license does not purge the driver' s

record of prior violations, and it is proper for the depart-

ment or court to take into account such violations alongwith new violations charged in determining whether petitioner's license should be revoked or suspended. Stehle v.

Dept. of Motor Vehicles, ( 1962) 229 Or 543, 368 P2d 386, 97 ALR2d 1359.

ATTY. GEN. OPINIONS: Circuit courts as having exclusivejurisdiction to review decisions of Secretary of State, 1950- 52, p 306; effect of rescission on acts committed duringsuspension, 1966 -68, p 6.


482.500

ATTY. GEN. OPINIONS: After a valid revocation of an

operator' s license, the Secretary of State as not takingfurther action until the operator qualifies for reinstatement,

1942 -44, p 436.

482.510

ATTY. GEN. OPINIONS: Recommendation of convictingcourt for partial reinstatement, 1950 -52, p 306; effect ofrescission on acts committed during suspension, 1966 -68, p6.

482.540

CASE CITATIONS: Heer v. Dept. of Motor Vehicles, ( 1969) 252 Or 455, 450 P2d 533; Burbage v. Dept. of Motor Vehicles,

1969) 252 Or 486, 450 P2d 775; Garcia v. Dept. of Motor

Vehicles, ( 1969) 253 Or 505, 456 P2d 85; Sowles v. Dept.

of Motor Vehicles, ( 1970) 3 Or App 117, 472 P2d 839; Stra- tikos v. Dept. of Motor Vehicles, ( 1970) 4 Or App 313, 477P2d 237, 478 P2d 654, Sup Ct review denied; Thorp v. Dept. of Motor Vehicles, ( 1971) 4 Or App 552, 480 P2d 716; Dorrv. Dept. of Motor Vehicles, ( 1971) 5 Or App 170, 483 P2d105.

ATTY. GEN. OPINIONS: Power of Emergency Board toauthorize expenditure of Highway Fund by State Board ofHealth and State Police, 1964 -66, p 277.

482.550

NOTES OF DECISIONS

On appeal to circuit court, the arresting officer is not anindispensable witness to the fact that he had reasonable

grounds to believe appellant had been driving in violationof the statute. Dorr v. Dept. of Motor Vehicles, ( 1971) 5

Or App 170, 483 P2d 105.

FURTHER CITATIONS: Heer v. Dept. of Motor Vehicles, 1969) 252 Or 455, 450 P2d 533; Burbage v. Dept. of Motor

Vehicles, ( 1969) 252 Or 486, 450 P2d 775; Garcia v. Dept.

of Motor Vehicles, ( 1969) 253 Or 505, 456 P2d 85; Sowles

v. Dept. of Motor Vehicles, ( 1970) 3 Or App 117, 472 P2d839; Stratikos v. Dept. of Motor Vehicles, ( 1970) 4 Or App313, 477 P2d 237, 478 P2d 654, Sup Ct review denied.

ATTY. GEN. OPINIONS: Use of State Highway Fund forimplementation of this section, 1964 -66, p 277.

482. 560 .

NOTES OF DECISIONS

In all respects, other than the method of selection and

the challenges available to each side, the jury trial shallbe conducted- as in any civil action. Burbage v. Dept. ofMotor Vehicles, ( 1969) 252 Or 486, 450 P2d 775; Garcia v.

Dept. of Motor Vehicles, ( 1969) 253 Or 505, 456 P2d 85;

Stratikos v. Dept. of Motor Vehicles, ( 1970) 4 Or App 313, 477 P2d 237, 478 P2d 654, Sup Ct review denied; Thorp v. Dept. of Motor Vehicles, ( 1971) 4 Or App 552, 480 P2d 716.

The burden of proof is on petitioner. Burbage v. Dept.

of Motor Vehicles, ( 1969) 252 Or 486, 450 P2d 775; Garciav. Dept. of Motor Vehicles, ( 1969) 253 Or 505, 456 P2d 85;

468

SUPERSEDED

Thorp v. Dept. of Motor Vehicles, ( 1971) 4 Or App 552, 480P2d 716; Dorr v. Dept. of Motor Vehicles, ( 1971) 5 Or App170, 483 P2d 105; Andros v. Dept. of Motor Vehicles, ( 1971)

5 Or App 418, 485 P2d 635. Petitioner is not required to set forth in his petition all

the findings and conclusions made by the hearing officer. Garcia v. Dept. of Motor Vehicles, ( 1969) 253 Or 505, 456P2d 85.

In an appeal under this section, the petition should allegeexhaustion of petitioner's administrative remedies. Sowles

v. Dept. of Motor Vehicles, ( 1970) 3 Or App 117, 472 P2d839.

Waiver of a jury trial is controlled by the statute coveringwaiver in civil actions. Thorp v. Dept. of Motor Vehicles,

1971) 4 Or App 552, 480 P2d 716.

FURTHER CITATIONS: Heer v. Dept. of Motor Vehicles,

1969) 252 Or 455, 450 P2d 533; Johnson v. Dept. of MotorVehicles, ( 1971) 5 Or App 617, 485 P2d 1258; Warner v. Motor Vehicles Div., (1971) 5 Or App 612, 485 P2d 1248.

ATTY. GEN. 'OPINIONS: Power of Emergency Board toauthorize expenditure of Highway Fund by State Board ofHealth and State Police, 1964 -66, p 277.

482.570

NOTES OF DECISIONS

Actual receipt of notice of suspension by the party isrequired before the suspension is effective. Hall v. Dept.

of Motor Vehicles, ( 1970) 2 Or App 248, 467 P2d 975.

FURTHER CITATIONS: Heer v. Dept. of Motor Vehicles,

1969) 252 Or 455, 450 P2d 533; Burbage v. Dept. of Motor

Vehicles, ( 1969) 252 Or 486, 450 P2d 775; Stratikos v. Dept.

of Motor Vehicles, ( 1971) 4' Or -App 313, 477 P2d 237, 478P2d 654, Sup Ct review denied.

482.580

CASE CITATIONS: Heer v. Dept. of Motor Vehicles, ( 1969)

252' Or 455, 450 P2d 533; Burbage v. Dept. of Motor Vehicles,

482.990

1969) 252 Or 486, 450 P2d 775; Stratikos v. Dept of Motor

Vehicles, ( 1971) 4 Or App 313, 477 P2d 237, 478 P2d 654, Sup Ct review denied.

482.620

CASE CITATIONS: Gossett v. Van Egmond, ( 1945) 176 Or134, 155 P2d 304.

LAW REVIEW CITATIONS: 1 WLI 582.

482.630

ATTY. GEN. OPINIONS: An ambulance as within this sec-

tion, 193840, p 433.

482.650


P2d 477; City of Oakland v. Moore, ( 1969) 1 Or App 80, 457 P2d 659, Sup Ct review denied

ATTY. GEN. OPINIONS: Person driving without licenseduring period when his suspended driver's license wouldhave expired, 1954 -56, p 139; effect of rescission on acts. committed during suspension, 1966 -68, p 6; impoundmentprocedure for violation, 1966 -68, pp 407, 420, 461; simultaneous charges under this section and ORS 482.300, 1966-68,

p 459.

482.990

ATTY. GEN. OPINIONS: Section under which all violations

except driving under revoked or suspended licenses arepunished, 1950 -52, p 306; comparing penalty for drivingwhile license suspended with that for driving while licenserevoked, 1954 -56, p 139; impounding of vehicle for periodlonger than ownership interest of lessee, 1966 -68, p 437; simultaneous charges under ORS 482.300 and 482.650,

1966 -68, p 459; impoundment procedure for violation, 1966- 68, pp 420, 461.

469

SUPERSEDED

Chapter 483

Motor Vehicle Traffic and Equipment

Chapter 483

NOTES OF DECISIONS

The principal concern of the legislature in the enactmentof this chapter was the preservation of the highways. State

v. Pyle, ( 1961) 226 Or 485, 360 P2d 626.

FURTHER CITATIONS: Biddle v. Mazzocco, ( 1955) 204 Or

547, 284 P2d 364; State v. Davis, ( 1956) 207 Or 525, 296 P2d240; Maker v. Wellin, ( 1958) 214 Or 332, 329 P2d 1114, 327

P2d 793; Larson v. Heintz Constr. Co., ( 1959) 219 Or 25, 52,

345 P2d 835; Marchant v. Clark, ( 1960) 225 Or 273, 357 P2d

541; Roy L. Houck & Sons v. State Tax Comm., ( 1961) 229

Or 21, 366 P2d 166; Simmons v.Holmes, ( 1961) 229 Or 373,

367 P2d 368.

ATTY. GEN. OPINIONS: Authority of county to issue blanket permits for log trucks exceeding certain statutory loadlimitations, 1948 -50, p 232; requirement for obliteration ofschool bus markings when vehicle is not used for school

purposes, 1948 -50, p 310; disposition of fines collected asapplying to this chapter only, 1948 -50, p 357; clearance lights - needed by army trucks, 1948 -50, p 430; this chapter as notexclusive, 1950 -52, p 99; judgments of convictions filedwith the Secretary of State under this chapter as public'. records, 1950 -52, p 104; conflicting municipal ordinance asvoid, 1950 -52, p 327; procedure for compelling person re- leased without bond to appear before magistrate, 1954 -56,

p 10; student driver support fund to be funded by increasein fines for moving violations as constitutional, 1954 -56, p94; as special provision for distribution of fines governingover conflicting general statutes, 1954 -56, p 142; truck withgross weight of less than 6,000 pounds as outside the defini-

tion of motor truck, 1954 -56, p 186; police officer as authorized to issue citation only to violators who have beenarrested, 1956 -58, p 62; granting of a permit distinguishedfrom registration of vehicle, continuous trip permit forpublic highway construction vehicles, 1958 -60, p 64; roadlocated on railroad right -of -way as a " highway," 1960 -62;

p 101; motorcycle as vehicle, 1960 -62, p 182; three - wheeledvehicles used by meter maids as motorcycles, 1966 -68, p350; defining " police officer," 1966 -68, p 452; regulatingprotective headgear of motorcyclists on private property, 1966 -68, p 548.

483.002

NOTES OF DECISIONS

A policeman, who failed to sound the siren or give other

audible warning in the operation of his vehicle, could notclaim that he was at the time operating an emergencyvehicle within the exemption granted by the statutes. Dod- son v. Lemon, ( 1953) 197 Or 444, 253 P2d 900.

1968) 249 Or 556, 439 P2d 865; Comstock v. Stewart, ( 1971)

257 Or 538, 480 P2d 426.

ATTY. GEN. OPINIONS: Equipping privately -owned vehicle with siren to be used for emergency purposes, 1950 -52, p 232; authority of brand inspector to use a siren or redlight on his vehicle, 1966 -68, p 65; vehicles of the FederalBureau of Investigation as emergency vehicles, 1966 -68, p499.

483.006

NOTES OF DECISIONS

The purpose of subsection ( 4) is to clarify the meaningof crosswalk, as applied to an irregular intersection. DeWitt

v. Sandy Market, ( 1941) 167 Or 226, 115 P2d 184. There is no unmarked crosswalk at an intersection unless

there is a pedestrian walk on each of the opposite sides

of the street. Leap v. Royce, ( 1955) 203 Or 566, 279 P2d887.

A crosswalk where the street going south jogged left atthe intersection ran diagonally between the northwest andsouthwest corners, and if plaintiff walked straight south

from the northwest corner, the jury could find that she wasout of the crosswalk. DeWitt v. Sandy Market, ( 1941) 167Or 226, 115 P2d 184.

FURTHER CITATIONS: Martin v. Harrison, ( 1947) 182 Or

121, 180 P2d 119, 186 P2d 534; Schoenborn v. Broderick,

1954) 202 Or 634, 277 P2d 287.

483.008

ATTY. GEN. OPINIONS: Truck with gross weight of lessthan 6,000 pounds as outside the definition of motor truck,

1954 -56, p 186.

483.010

CASE CITATIONS: Elliott v. Rogers Constr. Co. ( 1971) 257Or 421, 479 P2d 753.

ATTY. GEN. OPINIONS: Effect of railroad right of waywithin public highway right• of way, 1960 -62, p 102; application to city -owned cycles used by meter maids, 1966 -68, p 350; construing " public road" under county road law, 1966 -68, p 412.'

LAW REVIEW CITATIONS: 1' WLJ 453455, 457, 461.

483.012

FURTHER CITATIONS: Mercer v. Risberg, ( 1948) 182 Or NOTES OF DECISIONS

526, 188 P2d 632; State v. Smith, ( 1953) 198 Or 31, 255 P2d The area where a highway joins a private road is not1076; Anderson v. Finzel, ( 1955) 204 Or 162, 282 P2d 358; an " intersection" within the meaning of this section. ClarkCaliff v. Norman, ( 1957) 210 Or 198, 310 P2d 319; Fenton v. Fazio, ( 1951) 191 Or 522, 230 P2d 553.

v. Aleshire, ( 1964) 238 Or 24, 393 P2d 217; Siburg v. Johnson, A junction where a road merely meets but does not cross

470

lu

SUPERSEDED

a highway is an " intersection." Perdue v. Pac. Tel. & Tel.

Co., ( 1958) 213 Or 596, 326 P2d 1026.

FURTHER CITATIONS: Schoenborn v. Broderick, ( 1954)

202 Or 634, 277 P2d 287.

ATTY. GEN. OPINIONS: Authority of city to regulate traffic on county roads, 1950 -52, p 311; truck carrying. farmlicense as " implement of husbandry," 1950 -52, p 365; requirements for farm wagon or trailer to qualify as " implement of husbandry," 1952 -54, p 224; Public Utility Commis- sioner as without authority to post signs at railroad crossings, 1960 -62, p 101; duty of county to place traffic controlor warning signs on county or public roads, ( 1969) Vol 34, p 482.

483.014

ATTY. GEN. OPINIONS: Truck with gross weight of less

than 6,000 pounds as outside the definition of motor truck,

1954 -56, p 186; application to city -owned cycles used bymeter maids, 1966 -68, p 350.

483.016

NOTES OF DECISIONS

Highway signs are not lawfully placed unless visible. Savage v. Palmer, ( 1955) 204 Or 257, 280 P2d 982.


483.018

ATTY. GEN. OPINIONS: Sheriffs authority to use radar, 1966 -68, p 452.

483.020

NOTES OF DECISIONS

There is a common law right -of -way applicable to motorvehicles upon highways of this state. Brindle v. McCormick

Lbr. & Mfg. Corp., ( 1956) 206 Or 333, 293 P2d 221.

Total frontage of residential district is to be considered

as 600 feet, or 300 feet on each side of highway. Marshallv. Mullin, ( 1958) 212 Or 421, 320 P2d 258.

Mainly" in the statute refers to an occupancy by thebuildings of a frontage of more than 50 percent of the total.

Id.

Dwellings" in the statute refers to buildings reasonablycapable of present occupancy. Id.

FURTHER CITATIONS: Dungey v. Fairview Farms, Inc., 1955) 205 Or 615, 290 P2d 181; Califf v. Norman, ( 1957) 210

Or 198, 310 P2d 319; Ernst v. Broughton, ( 1958) 213 Or 253,

324 P2d 241; Graves v. Shippley, ( 1959) 215 Or 616, 300 P2d442, 337 P2d 347; Slotte v. Gustin, ( 1960) 224 Or 426, 356

P2d 435.

483.022

ATTY. GEN. OPINIONS: Requirement for obliteration ofschool bus markings when vehicle is not used for school

purposes, 1948 -50, p 310.

483.028

CASE CITATIONS: Savage v. Palmer, ( 1955) 204 Or 257, 280 P2d 982; Mead v. Portland Traction Co., ( 1957) 210 Or

643, 313 P2d 451.

471

483.036

483.030

CASE CITATIONS: Rankin v. White, ( 1971) 258 Or 252, 482

P2d 530.

ATTY. GEN. OPINIONS: Truck carrying farm license asimplement of husbandry," 1950 -52, p 365; vehicles of the

Federal Bureau of Investigation as emergency vehicles, 1966 -68, p 499.

483.032

NOTES OF DECISIONS

Emergency vehicles must obey traffic regulations unlessspecifically excepted from their operation. Anderson v. Fin - zel, ( 1955) 204 Or 162, 282 P2d 358.

Prior to the 1967 amendment, this section was applicable

to a truck driver performing work for the State HighwayCommission while turning his truck around. after dumpinga load of hot asphalt. McNabb v. DeLaunay, ( 1960) 223 Or468, 354 P2d 290.

FURTHER CITATIONS: Marchant v. Clark, ( 1960) 225 Or

273, 357 P2d 541; Lovins v. Jackson, ( 1963) 233 Or 369, 378

P2d 727; Sorenson v. Tillamook County, ( 1970) 255 Or 381, 467 P2d 433.

ATTY. GEN. OPINIONS: Clearance lights needed by armytrucks, 1948 -50, p 430; application to city-owned cycles usedby meter maids, 1966 -68, p 350.

483.034

NOTES OF DECISIONS

This section does not affect common -law negligence nor

require a child of tender years to conform to the same

standard of care as a reasonably prudent adult. Maker v. Wellin, ( 1958) 214 Or 332, 327 P2d 793, 329 P2d 1114.

The age, experience and intelligence of an infant are to

be considered in determining whether he was guilty ofcontributory negligence even where he violated a statute. Simmons v. Holm, ( 1961) 229 Or 373, 367 P2d 368.

The fact that a pedestrian was leading a horse upon thehighway did not bring him under the rules of the roadapplicable to vehicles. Sertic v. McCullough, ( 1936) 155 Or216, 63 P2d 884.

Where there was no evidence that defendant' s truck

struck decedent' s bicycle or that defendant stole up ondecedent and frightened him so he lost control or that

defendant failed to provide sufficient clearance, charge of

negligently causing deceased' s death was refuted. Copen- haver v. Tripp, ( 1950) 187 Or 662, 213 P2d 448.

FURTHER CITATIONS: Spence v. Rasmussen, ( 1951) 190

Or 662, 226 P2d 819.

483.036

NOTES OF DECISIONS

A city ordinance restricting speed of motor vehicleswithin the corporate limits of the city to 25 miles per hourwas invalid. Winters v. Bisaillon, ( 1936) 152 Or 578, 54 P2d1169.

A city ordinance prohibiting the parking of a car morethan one foot from the curb was not rendered invalid bythis section. Ceccacci v. Garre, ( 1938) 158 Or 466, 76 P2d

283.

ATTY. GEN. OPINIONS: Determining validity of city ordinance as outside jurisdiction of enforcing officer, 1950 -52, p 327; applicability of traffic laws to Indians on Warm , Springs Reservation, 1958 -60, p 172.

SUPERSEDED

483. 038


483.038


r:k l I

NOTES OF DECISIONS

Sign regulations are not intended to fix standards of care. Lovins v. Jackson, ( 1963) 233 Or 369, 378 P2d 727.

Misfeasance of state employe who installed sign must

have been a cause of the accident that results in injurybefore a recovery may be had. Ashland v. Pac. Power & Light Co., ( 1964) 239 Or 241, 395 P2d 420, 397 P2d 538.

FURTHER CITATIONS: Cabell v. City of Cottage Grove, 1942) 170 Or 256, 130 P2d 1013; Savage v. Palmer, ( 1955)

204 Or 257, 280 P2d 982.

483.042

NOTES OF DECISIONS

The state has and retains, either by Act of the legislatureor by vote of the electorate, the right to enact general lawsprescribing the speed of motor vehicles and the generalrules regulating traffic on the highways of the state, whichright when exercised cannot be curtailed, infringed upon

or annulled by local authorities. Winters v. Bisaillon, ( 1936) 152 Or 578, 54 P2d 1169.

FURTHER CITATIONS: Ceccacci v. Garre, ( 1938) 158 Or

466, 76 P2d 283; Cabell v. City of Cottage Grove, ( 1942) 170 Or 256, 130 P2d 1013; Schoenborn v. Broderick, ( 1954)

202 Or 634, 277 P2d 287; Senger v. Vancouver - Portland BusCo., ( 1956) 209 Or 37, 298 P2d 835, 304 P2d 448.

ATTY. GEN. OPINIONS: Discussion of section as to state

and local powers and disposition of fines, 1940 -42, p 144; power of county court to require permit or indemnity bondfor log trucks, 1950 -52, p 292.

483.044

NOTES OF DECISIONS

A signal installed by a company with the approval ofthe county court at the intersection of a private road anda public highway is not a nuisance and must be observed. Schoenborn v. Broderick, ( 1954) 202 Or 634, 277 P2d 787.

FURTHER CITATIONS: Lovins v. Jackson, ( 1963) 233 Or369, 378 P2d 727.

ATTY. GEN. OPINIONS: Authority of city to regulate traffic on county roads, 1950 -52, p 311.

LAW REVIEW CITATIONS: I WLJ 514 -527

ATTY. GEN. OPINIONS: Transportation of persons other

than school children in school busses, 1948 -50, p 310; onlyvehicles which Tnay lawfully use highways as subject toregistration, 1956 -58, p 64.


483.048

ATTY. GEN. OPINIONS: Construing " speed law," ( 1968)

Vol 34, p 347.

483.049


P2d 740.

483.050

CASE CITATIONS: Wold v. Portland, ( 1940) 166 Or 455, 112 P2d 469.


483. 102 to 483. 112

CASE CITATIONS: Tuite v. Union Pac. Stages, ( 1955) 204

Or 565, 284 P2d 333.

V 483. 102

NOTES OF DECISIONS1. In general

2. Speed

3. Duty to exercise proper control

1. In general

The standard fixed for drivers of motor vehicles is one

to which it is neither harsh nor arbitrary to hold thosecriminally liable who operate contrary to it. Cline v. FrinkDairy Co., ( 1926) 274 US 445, 47 S Ct 681, 71 L Ed 1146.

An officer may make an arrest without a warrant fora violation of this statute committed in his presence. State

v. Christensen, ( 1935) 151 Or 529, 51 P2d 835.

An instruction on the rule of this section does not include

any information whatever of the common -law duty as tocontrol. Prauss v. Adamski, ( 1952) 195 Or 1, 244 P2d 598.

Violation of the basic rule does not in and of itself consti-

tute gross negligence. Burrows v. Nash, ( 1953) 199 Or 114,

259 P2d 107.

A requested instruction on statutory negligence whicheliminated the reasonable prudent man test in regard to

the basic rule was properly refused. Zahumensky v. Fan - drich, ( 1954) 200 Or 588, 267 P2d 664.

2. Speed

Whenever the question of speed is involved, the ultimatefact to be determined is whether the basic rule has beenviolated, not whether the vehicle traveled in excess of the

designated speed. Rauw v. Hiding & Sparks, ( 1953) 199 Or48, 259 P2d 99; Lemons v. Holland, ( 1955) 205' Or 163, 284P2d 1041, 286 P2d 656; Hess v. Larson, ( 1971) 259 Or 536, 486 P2d 533.

An allegation of excessive speed may be withdrawn fromconsideration of the jury when evidence fails to show thatspeed had a causal connection with the accident. Wilson

v. Overby, ( 1960) 223 Or 256, 354 P2d 319; Johnson v. Ben- nett, ( 1960) 225 Or 213, 357 P2d 527; Krening v. Flanders,

1961) 225 Or 388, 358 P2d 574.

A speed greater than is reasonable and prudent is attained

by a motorist who travels so fast that he is unable to stopwithin twice the distance possible were he traveling at thespeed indicated by the statute. Keys v. Griffith, ( 1936) 153Or 190, 55 P2d 15.

An instruction in the language of the statute was suf-

ficient, in the absence of a specific request for further instruction in regard to the basic rule. Cook v. Retzlaff, (1940)

163 Or 683, 99 P2d 22. Instruction that the basic rule does not mean that a driver

is an insurer that he will have no collision, did not mislead

jury. Morris v. Fitzwater, ( 1949) 187 Or 191, 210 P2d 104. The question of speed does not have to be submitted to

the jury in every case where speed is alleged and forward

472

C

SUPERSEDED

movement in miles per hour shown. Johnson v. Bennett, 1960) 225 Or 213, 357 P2d 527.

Although defendant' s car was moving at a very slowspeed, the question of speed and degree of control were

properly submitted to jury since it could be inferred hemaintained no lookout. McReynolds v. Howland, ( 1959) 218

Or 566, 346 P2d 127.

Evidence that it was customary practice for other driversto exceed the designated speed limit was not admissible

to show defendant' s conduct reasonable. Elliott v. Callan, 1970) 255 Or 256, 466 P2d 600.

3. Duty to exercise proper controlA defendant relying upon an emergency to explain his

conduct must show that he was faced with a sudden danger,

in light of which his conduct measures up to the standardof a reasonable man faced with a similar emergency. Razv. Mills, ( 1962) 231 Or 220, 372 P2d 955.

A driver must always maintain such lookout as a reason-

ably prudent person would maintain in the same or similarcircumstances. Id.

Control implies also the ability to swerve reasonably soas to avoid a collision. Phillips v. Ocker, ( 1968) 250 Or 30, 440 P2d 365.

FURTHER CITATIONS: Younger v. Gallagher, ( 1933) 145

Or 63, 26 P2d 783; Winters v. Bisaillon, ( 1936) 152 Or 578,

54 P2d 1169; Ervast v. Sterling, ( 1937) 156 Or 432, 68 P2d137; Zeek v. Bicknell, ( 1938) 159 Or 167, 78 P2d 620; Van

Zandt v. Goodman, ( 1947) 181 Or 80, 179 P2d 724; Snyder

v. Portland Traction Co., ( 1947) 182 Or 344, 185 P2d 563;

Persons v. Raven, ( 1949) 187 Or 1, 207 P2d 1051; Eid v.

Larsen, ( 1953) 200 Or 83, 264 P2d 1051; State v. Wojahn,

1955) 204 Or 84, 282 P2d 675; Dungey v. Fairview Farms, Inc., ( 1955) 205 Or 615, 290 P2d 181; State v. Davis, ( 1956) 207 Or 525, 296 P2d 240; Califf v. Norman, ( 1957) 210 Or198, 310 P2d 319; McMullen v. Robinson, ( 1957) 211 Or 531,

316 P2d 503; Wiebe v. Seely, ( 1959) 215 Or 331, 335 P2d 379; Yates.v. Stading, ( 1959) 219 Or 464, 347 P2d 839; Burghardtv. Olson, ( 1960) 223 Or 155, 349 P2d 792; Marchant v. Clark,

1960) 225 Or 273, 357 P2d 541; Simpson v. Gray Line Co., 1961) 226 Or 71, 358 P2d 516; Ireland v. Mitchell, ( 1961)

226 Or 286, 359 P2d 894; Consolidated Freightways, Inc. v. Holzapfel, ( 1961) 286 F2d 486; Lehr v. Gresham BerryGrowers, ( 1962) 231 Or 202, 372 P2d 488; Meyers v. Munro,

1963) 236 Or 68, 386 P2d 808; Hoyle v. Van Horn, ( 1963)

236 Or 205, 387 P2d 985; Miller v. Harder, ( 1965) 240 Or 418, 402 P2d 84; Lundquist v. Irvine, ( 1966) 243 Or 274, 413 P2d416; Robinson v. Lewis, ( 1969) 254 Or 52, 457 P2d 483; State

v. Hall, ( 1970) 4 Or App 30, 476 P2d 930; Ballard v. Ricka- baugh Orchards, Inc., ( 1971) 257 Or 366, 479 P2d 236.

ATTY. GEN. OPINIONS: Requirement that complaint con-

tain allegation of speed in instances involving violation ofthis section, 1948 -50, p 417; speed limit of truck under 6,000pounds, 195456, p 186; construing " speed law" used in ORS483.048, ( 1968) Vol 34, p 347.

LAW REVIEW CITATIONS: 37 OLR 277; 1 WLJ 558 -661,

654657.

483. 104

NOTES OF DECISIONS

Before the 1941 amendment, neither a maximum nor a

minimum speed limit was intended by the indicated speedspecified by the statute. Dickson v. King, ( 1934) 147 Or 638, 34 P2d 664; Cummings v. Pitts, ( 1935) 149 Or 512, 41 P2d804; Winters v. Bisaillon, ( 1936) 152 Or 578, 54 P2d 1169.

Except in certain situations, exceeding the speed limitwithout violating the basic rule is not a violation of thelaw. Senkirik v. Royce, ( 1951) 192 Or 583, 235 P2d866; Rauw

483. 112

v. Huling & Sparks, ( 1953) 199 Or 48, 259 P2d 99; Burrowsv. Nash, ( 1953) 199 Or 114, 259 132d 107; Lemons v. Holland,

1955) 205 Or 163, 284 132d 1041, 286 132d 656.

Direct evidence is not necessary to establish excessivespeed, as such, and may reasonably be inferred from allthe facts and circumstances of the case. Greenslitt v. Three

Bros. Bakery Co., ( 1943) 170 Or 345, 133 P2d 597.

Before the 1941 amendment, the violation of an indicated

maximum speed was not of itself any evidence of negligencebut after the amendment, the violation constituted prima

facie evidence of negligence. Swiderski v. Moodenbaugh, 1944) 143 172d 212.

The provision that speeds in excess of designated speeds

shall be prima facie evidence of a violation of the basicrule" applies to civil as well as criminal actions. Mercer

v. Risberg, ( 1948) 182 Or 526, 188 132d 632. Failure to instruct ( that if plaintiff was driving at a

greater speed than designated such fact is prima facie evidence of negligence) is error when there is evidence that

plaintiff was exceeding the designated speed. ConsolidatedFreightways, Inc. v. Holzapfel, ( 1961) 286 F2d 486.

Evidence that it was customary practice for other driversto exceed the designated speed limit was not admissible

to show defendant's conduct reasonable. Elliott v. Callan,

1970) 255 Or 256, 466 P2d 600.

FURTHER CITATIONS: Noble v. Sears, ( 1927) 122 Or 162,

257 P 809; Nisley' v. Sawyer Serv., ( 1927) 123 Or 293, 261

P 890; Loveland v. Plant, ( 1930) 132 Or 619, 287 P 219;

Younger v. Gallagher, ( 1 933) 145 Or 63, 26 P2d 783; Zeek

v. Bicknell, ( 1938) 159 Or 167, 78 P2d 620; Ross v. Robinson,

1942) 169 Or 293, 124 P2d 918; Rogers v. So. Pac. Co., ( 1951)

190 Or 643, 227 P2d 979; Cameron v. Goree, ( 1948) 182 Or

581, 189 P2d 596; Dungey v. Fairview Farms, Inc., ( 1955)

205 Or 615, 290 P2d 181; Califf v. Norman, ( 1957) 210 Or198, 310 P2d 319; Ernst v. Broughton, ( 1958) 213 Or 253,

324 P2d 241; State v. Hoover, ( 1959) 219 Or 288, 303, 347

P2d 69, 89 ALR2d 695; Yates v. Stading, ( 1959) 219 Or 464, 347 P2d 839; Burghardt v. Olson, ( 1960) 223 Or 155, 349 P2d

792, 354 P2d 871; Slotte v. Gustin, ( 1960) 224 Or 426, 356P2d 435; Comstock v. Stewart, ( 1971) 257 Or 538, 480 P2d

426; Hess v. Larson, ( 1971) 259 Or 386, 486 P2d 533.

ATTY. GEN. OPINIONS: Power of speed control board to

designate speeds differing from those set forth in this section, 1950 -52, p 3T2.

LAW REVIEW CITATIONS: 1 W W 658.

483. 106

CASE CITATIONS: Califf v. Norman, ( 1957) 210 Or 198,

310 P2d 319; Burghardt v. Olson, ( 1960) 223 Or 155, 349 P2d

792, 354 P2d 871.

ATTY. GEN. OPINIONS: Authority of State Speed ControlBoard to designate speeds differing from designated speeds, 1950 -52, p 372.

483. 108

CASE CITATIONS: Califf v. Norman, ( 1957) 210 Or 198, 310 P2d 319.

ATTY. GEN. OPINIONS: Authority of State Speed ControlBoard to designate speeds differing from designated speeds, 1950 -52, p 372.

483. 112

ATTY. GEN. OPINIONS: Necessity of complaint filed forviolation of law as to speed containing an allegation re-

473

SUPERSEDED

483. 114

garding speed, 1948.50, p 417; sheriff's authority to useradar, 1966 -68, p 452; application of subsection ( 1) to violation of ORS 483. 122( 1), 1966 -68, p 592; construing " speedlaw" used in ORS 483.048, ( 1968) Vol 34, p 347.


483. 114

NOTES OF DECISIONS

This section applies to traffic traveling along or acrossan arterial highway. Von Bergen v. Kuykendall, ( 1965) 240Or 191, 400 P2d 553; Nelson v. Watters, ( 1970) 255 Or 64,

463 P2d 863.

FURTHER CITATIONS: Wells v. Washington County, 1966) 243 Or 246, 412 P2d 798.

483. 116

CASE CITATIONS: Furrer v. Yew Creek Logging Co., 1956) 206 Or 382, 292 P2d 499; Simpson v. Gray Line Co., 1961) 226 Or 71, 358 P2d 516.

ATTY. GEN. OPINIONS: Speed limit of truck under 6, 000

pounds, 1954 -56, p 186.

483. 120

NOTES OF DECISIONS

This section relates to speed and has nothing whateverto do with the duty of emergency vehicles to stop at intersections. Anderson v. Finzel, ( 1955) 204 Or 162, 282 P2d 358.

Driver of emergency vehicle must drive with regard tothe safety of others. Siburg v. Johnson, ( 1968) 249 Or 556, 439 P2d 865.


audible warning in the operation of his vehicle, could notclaim that he was at the time operating an emergencyvehicle within the exemption granted by the statutes. Dod- son v. Lemon, ( 1953) 197 Or 444, 253 P2d 900.

FURTHER CITATIONS: Buck v. Ice Delivery Co., ( 1934)

146 Or 132, 29 P2d 523; West v. Jaloff, ( 1925) 113 Or 184,

232 P 642, 36 ALR 1391; Califf v. Norman, ( 1957) 210 Or198, 310 P2d 319.

483. 122

CASE CITATIONS: Lemons v. Kelly, ( 1964) 239 Or 354, 397P2d 784.

ATTY. GEN. OPINIONS: Construing " race" and " contestfor speed," 1966 -68, p 592.

483. 126

NOTES OF DECISIONS

This section does not require a motorist in every instanceto give a signal of his intention. Ray v. Anderson, ( 1965) 240 Or 619, 403 P2d 372; Jepsen v. Magill, ( 1966) 243 Or

34, 411 P2d 267.

No distinction between minors and adults is made by thisprovision in respect to the duty of the operator of the motorvehicle to sound the horn. Maletis v. Portland Traction Co.,

1938) 160 Or 30, 83 P2d 141.

Signals are required for vehicles which are backing upas well as for those which are moving forward. Carter v. Lester, ( 1957) 210 Or 209, 309 P2d 1001.

Violation of the duty to signal as required by this sectionis negligence per se. Olson v. Sutherland, ( 1960) 224 Or 208,

355 P2d 774.

This section applies to the operation of a motor vehicle

upon the highway and has no application where the vehicleis operated on private premises. Kroft v. Grimm, ( 1960) 225

Or 247, 357 P2d 499.

This section does not require a signal unless the move-

ment is intended. Lee v. Caldwell, ( 1961) 229 Or 174, 366

P2d 913.

By requiring that a person first see that the movementcan be made in safety, the statute does not mean the persontakes such action at his peril. Ray v. Anderson, ( 1965) 240Or 619, 403 P2d 372.

Subsection ( 1) is in part for the benefit of vehicles approaching from the rear. McPherson v. Cochran, ( 1966) 243Or 399, 414 P2d 321.

When the lead car stops abruptly, it is ordinarily a question of fact whether subsection ( 1) has been violated. Jones

v. Bums, ( 1970) 257 Or 312, 478 P2d 611.

If there is evidence that the car ahead stopped abruptly, the negligence of the rear vehicle which struck the car

ahead is for the jury. Id. Where defendant did not signal his intention to turn,

because plaintiff was a considerable distance away, and hebelieved he could safely pass to the opposite side of thehighway, it was a question of fact whether the operationof plaintiffs car was affected by such movement of defendant's car. Moudy v. Boylan, ( 1959) 219 Or 448, 347 P2d983; Jepsen v. Magill, ( 1966) 243 Or 34, 411 P2d 267.

That plaintiff was holding the door open at the time heextended his arm horizontally as a signal for a left turnwas unimportant where the door was not between defen-

dant and plaintiffs arm. Turner v. McMillan, ( 1932) 140 Or407, 14 P2d 2094.

Where there were no vehicles in the rear to be affected

by the movement of plaintiffs car, an instruction fromwhich the jury could find that if plaintiffs signal was notvisible to a car in the rear she would be guilty of contributory negligence was abstract. Karberg v. Leahy, ( 1933) 144Or 687, 26 P2d 56.

The mere fact that defendant looked back before at-

tempting to turn across the highway and saw no car approaching did not of itself entitle him to proceed as a matterof right where a prudent man would have given the required

signal before turning. Burnett v. Weinstein, ( 1936) 154 Or308, 59 P2d 258.

An instruction which eliminates a specification of negli-

gence that defendant failed to give the required signal

before turning was erroneous. Id. Whether failure to sound the horn was the proximate

cause of an injury to a child playing in close proximity toa bus was under the evidence in the case for the jury. Dixonv. Raven Dairy, ( 1938) 158 Or 186, 75 P2d 347.

This section was inapplicable to a motorist stopping onprivate property adjoining the highway and proceeding ina straight line without changing his course. Lee v. Hoff, 1940) 163 Or 374, 97 P2d 715. An instruction in the language of subdivision ( 1) was

applicable where a collision occurred when a motorist

turned his vehicle left across the highway between intersections. Black v. Stith, ( 1940) 164 Or 117, 100 P2d 485.

An instruction that a motorist tuming left across thehighway between intersections would not be guilty of negligence simply because a collision occurred, but that thetest was whether a reasonable man would have believed

that he could make the turn, was a proper construction

of the statute. Id.

The question of plaintiffs negligence while guest in the

approaching vehicle in not warning her driver, should havebeen taken from the jury, where defendant failed to seethat he could make left turn in safety and failed to yieldto approaching vehicle, and danger of collision was notapparent until imminent. Hamilton v. Haworth, ( 1947) 180

Or 477, 177 P2d 409.

474

C

SUPERSEDED

There was no error in giving both an instruction as tothe making of movements with safety and one as to emergency situations. Alford v. Cochran, ( 1950) 189 Or 24, 216P2d 667.

Where defendant did not signal his intention to turn,

because plaintiff was a considerable distance away, and hebelieved he could safely pass to the opposite side of thehighway, it was a question of fact whether the operationof plaintiffs car was affected by such movement of defendant' s car. Schutt v. Hull, ( 1951) 193 Or 18, 236 P2d 937.

Where defendant vehicle operator was proceeding alonghighway between intersections when plaintiff operator ofopposing vehicle desired to turn left across the highwaybetween intersections, defendant had a common -law right

of way and was entitled to have such an instruction given. Blaylock v. Westlund, ( 1953) 197 Or 536, 254 P2d 203.

It was error for judge to give instruction that defendant,

who could not see out rear window, was only required tokeep to right half of highway when meeting oncomingtraffic and was not negligent in driving to left of centerwhen plaintiff was passing. Voight v. Nyberg, ( 1959) 218Or 383, 345 P2d 821.

It was not error to give the first sentence of subsection

1) in an instruction, although defendant's negligence was

not predicated upon failure to give a signal. Jenses v. Irvine, 1960) 221 Or 386, 349 P2d 670.

It was a question of fact whether under the circumstances

of this case the signal given constituted a reasonable warn-

ing of the driver' s intention to stop. Rough v. Lamb, ( 1965) 240 Or 240, 401 P2d 10.

In this case, a left turn was a movement of a type for

which a signal was mandatory. Lundquist v. West, ( 1967) 248 Or 494, 430 P2d 1013.

Subsection ( 1) did not apply where the driver was notin the process of stopping but had been parked for severalminutes. Parrot v. Spear, ( 1971) 259 Or 503, 487 P2d 71.

FURTHER CITATIONS: Sears v. Goldsmith, ( 1931) 136 Or151, 298 P 219; Frangos v. Edmunds, ( 1946) 179 Or 577, 173

P2d 596; Van Zandt v. Goodman, ( 1947) 181 Or 80, 179 P2d724; Callander and Stone v. Brown, ( 1947) 181 Or 279, 178

P2d 922; Canada v. Royce, ( 1953) 199 Or 196, 257 P2d 625;

Fisher v. Reilly, ( 1956) 207 Or 7, 294 P2d- 615; Hopfer v. Straudt, ( 1956) 207 Or 487, 298 P2d 186; Califf v. Norman,

1957) 210 Or 198, 310 P2d 319; Rose v. Portland TractionCo., ( 1959) 219 Or 1, 341 P2d 125, 346 P2d 375; Oien v.

Bourassa, ( 1960) 221 Or 359, 351 P2d 703; Lehr v. Gresham

Berry Growers, ( 1962) 231 Or 202, 372 P2d 488; Sturm v. Smelcer, ( 1963) 235 Or 251, 384 P2d 212; Miller v. Harder,

1965) 240 Or 418, 402 P2d 84; Ginter v. Handy, ( 1966) 244Or 449, 419 P2d 21.

ATTY. GEN. OPINIONS: Contributory negligence of motorist making turn in front of bus, 1928 -30, p 412; adequacyof mechanical signal device, 1948 -50, p 354.

LAW REVIEW CITATIONS: 1 WLJ 460, 505, 517, 525.

483. 128

NOTES OF DECISIONS

Highway signs are not lawfully placed unless visible. Savage v. Palmer, ( 1955) 204 Or 257, 280 P2d 982.

FURTHER CITATIONS: Cameron v. Goree, ( 1948) 182 Or581, 189 P2d 596; Anderson v. Finzel, ( 1955) 204 Or 162, 282P2d 358; Biddle v. Mazzocco, ( 1955) 204 Or 547, 561, 284

P2d 364; Senger v. Vancouver - Portland Bus Co., ( 1956) 209

Or 37, 298 P2d 835, 304 P2d 448; Bernaski v. Liudahl, ( 1957)

209 Or 553, 307 P2d 510; Chard v. Rios, ( 1964) 238 Or 74, 393 P2d 156; Wiens v. Stevenson, ( 1968) 250 Or 1, 439 P2d

15; Miller v. Jordan, ( 1970) 3 Or App 134, 472 P2d 841.

475

483.202

483. 130

CASE CITATIONS: Schultz v. Shirley, ( 1950) 189 Or 363, 220 P2d 86; Schoenborn v. Broderick, ( 1954) 202 Or 634, 277

P2d 287; Anderson v. Finzel, ( 1955) 204 Or 162, 282 P2d 358; Brindle v. McCormick Lbr. & Mfg. Corp., ( 1956) 206 Or 333,

293 P2d 221; Bernaski v. Liudahl, ( 1957) 209 Or 553, 307 P2d

510; Maser v. Klein, ( 1960) 224 Or 300, 356 P2d 151; Owens

v. Goss, ( 1963) 235 Or 102, 383 P2d 1013; Miller v. Harder, 1965) 240 Or 418, 402 P2d 84.

483. 132

CASE CITATIONS: Bernaski v. Liudahl, ( 1957) 209 Or 553,

307 P2d 510; Miller v. Harder, ( 1965) 240 Or 418, 402 P2d

84.

483. 134

CASE CITATIONS: Maser v. Klein, ( 1960) 224 Or 300, 356

P2d 151.

483. 136

CASE CITATIONS: Wiebe v. Seely, ( 1959) 215 Or 331, 335P2d 379; Lehr v. Gresham Berry Growers, ( 1962) 231 Or 202, 372 P2d 488; Troupe v. Ledward, ( 1964) 238 Or 531, 395 P2d

279; Miller v. Harder ( 1965) 240 Or 418, 402 P2d 84.

483. 138

NOTES OF DECISIONS

A signal installed by a company with the approval ofthe county court at the intersection of a private road anda public highway is not a nuisance and must be observed. Schoenborn v. Broderick, ( 1954) 202 Or 634, 277 P2d 787.

Device" means any contrivance which would tend tomislead a traveler to believe the contrivance had official

status in directing the movement of traffic. Ashland v. Pac. Power & Light Co., ( 1964) 239 Or 241, 395 P2d 420.

FURTHER CITATIONS: Lovins v. Jackson, ( 1963) 233 Or

369, 378 P2d 727.

ATTY. GEN. OPINIONS: Regulating campaign posters, 1954 -56, p 212.

483.202

NOTES OF DECISIONS

1. Approaching intersections, subsection ( 2) 2. Entering through highway, subsection ( 4) 3. Turning left at intersection, subsection ( 5)

1. Approaching intersections, subsection ( 2) The degree of care required in approaching a highway

intersection is that which an ordinarily prudent personwould exercise under the same circumstances. Casto v.

Hansen, ( 1927) 123 Or 20, 261 P 428; Frint v. Amato, ( 1930)

131 Or 631, 284 P 183; Vroman v. Upp, ( 1938) 158 Or 597, 77 P2d 432.

It is negligence per se to violate the statutory provisionas to the right of way at street intersections. Gilman v. Olson, ( 1928) 125 Or 1, 265 P 439; Holmes v. Goble, ( 1930)

132 Or 540, 285 P 822.

Contributory negligence may be charged to one entitledto the right of way if he heedlessly exercises that right insuch a manner that an injury is inflicted upon himself. Stryker v. Hastie, ( 1929) 131 Or 282, 282 P 1087; Stotts v.

Wagner, ( 1931) 135 Or 243, 295 P 497.

The right of way at intersections applies only where thetravelers or vehicles approach the crossing so nearly at the

SUPERSEDED

483.202

same time and at such rates of speed that a collision is

to be reasonably apprehended if they both proceed, eachwithout regard to the other. Ramsdell v. Frederick, ( 1930)

132 Or 161, 285 P 219; Cox v. Jones, ( 1932) 138 Or 327, 5P2d 102.

Right of way is forfeited by excessive speed, but is notthereby transferred to other driver. Dorey v. Myers, ( 1957) 211 Or 631, 317 P2d 515; Hess v. Larson, ( 1971) 259 Or 536, 486 P2d 533.

A failure to give right of way constitutes negligence, perse. Gilman v. Olson, ( 1928) 125 Or 1, 265 P 439.

A simultaneous approach is one which appears to be so

after a reasonably careful observation has been made. Knoxv. Abrams, ( 1930) 132 Or 500, 286 P 517.

A driver need not sound the horn where he has the right

of way on first entering an intersection, unless a reasonablycareful and prudent person would have given such signal. Winters v. Bisaillon, ( 1936) 152 Or 578, 54 P2d 1169.

An absolute duty to look to the right is imposed by thissection. Vroman v. Upp, ( 1938) 158 Or 597, 77 P2d 432.

Driver on left, who makes a reasonably careful observation to his right and sees no car approaching so closelythat there is reasonable likelihood of a collision, is not

required to stop or wait but may proceed. Dorey v. Myers, 1957) 211 Or 631, 317 P2d 515.

Where issue of speed at which. driver on right enters

intersection is material, instruction to jury should give allof right of way statute. Ernst v. Broughton, ( 1958) 213 Or253, 324 P2d 241.

The age, experience and intelligence of an infant are to

be considered in determining whether he is guilty of contributory negligence even where he violates a statute. Sim- mons v. Holm, ( 1961) 229 Or 373, 367 P2d 368.

The right of way conferred by the statute is not absolute. Stahl v. Tobiasson, ( 1971) 257 Or 445, 479 P2d 751.

The statutory right of way must be exercised reasonablywith due regard to existing circumstances. Hess v. Larson,

1971) 259 Or 536, 486 P2d 533.

The elements of speed, lookout and control are interre-

lated and, in most cases, it is proper if not necessary forthe jury to consider them together. Id.

The failure of a driver at it road intersection, to " look

out for and give right of way to vehicles on the right," constituted negligence per se. Ramp v. Osborne, ( 1925) 115Or 672, 239 P 112.

Whether plaintiff was guilty of contributory negligencewhere she approached an intersection from the right and

the testimony of the driver of her car was that he lookedstraight ahead watching where he was going but saw thecar with which he collided coming 20 feet from the intersection, was a question for the jury. McCulley v. HomesteadBakery, ( 1933) 141 Or 460, 18 P2d 226.

Approaching an intersection at a speed of 25 miles perhour on the left side of the road, and proceeding on to thehighway intersection at a speed of more than 15 miles perhour, without looking for traffic on such highway, theintersection being partially obstructed by brush, was sufficient to constitute gross negligence on the part of the driver.

Cockerham v. Potts, ( 1933) 143 Or 80, 20 P2d 423.

2. Entering through highway, subsection ( 4) The question of what " constitutes an immediate hazard"

is determined by relevant factors such as distance of approaching vehicle, width of crossing, speed of vehicles, other traffic, and so on, and the trier of fact must determine

if the driver was justified in believing he could safely passin front of the oncoming car. Van Zandt v. Goodman, ( 1947) 181 Or 80, 179 P2d 724. .

The purposes of this section are to afford the driver an

opportunity to get the car fully under control, to affordhim a better opportunity to make observations and to hear,

and to afford the car on the trunk road a better view of

him. Cameron v. Goree, ( 1948) 182 Or 581, 189 P2d 596.

Drivers upon secondary ways must stop where they cansee cars in the intersection and cars approaching upon thetrunk highway. Id.

Vehicle proceeding along public highway has a superiorright to its use than does a vehicle entering highway fromprivate road. Biddle v. Mazzocco, ( 1955) 204 Or 547, 284

P2d 364.

Vehicle entering an intersection on the right is not giventhe right of way at an intersection which is controlled bya stop sign. Mead v. Portland Traction Co., ( 1957) 210 Or

643, 313 P2d 451.

The determination of whether approaching vehicles constitute an immediate hazard must be made at the time.whenthe initially disfavored driver is ready to proceed into theintersection. Hermann v. Wohlers, ( 1966) 244 Or 441, 419P2d 45.

Vehicles do not constitute an immediate hazard if theyare far enough away to make a smooth and safe stop. Id.

The law requires a driver to stop at a point which, inthe exercise of ordinary care, will allow the driver to seetraffic on the street he is about to enter. Dunstan v. Dean,

1971) 259 Or 436, 487 P2d 78.

It was plaintiffs duty to observe traffic waiting to enterthe through highway. Troupe v. Ledward, ( 1964) 238 Or 531, 395 P2d 279.

3. Turning left at intersection, subsection ( 5) The driver who intends to turn left must yield the right

of way to any approaching vehicle within the intersectionor so close as to constitute an immediate hazard. Dare v.

Garrett Freightlines, Inc., ( 1963) 234 Or 61, 380 P2d 119;

Bostwick v. Logsdon, ( 1963) 234 Or 226, 380 P2d 982.

The doctrine applicable to subsection ( 1), that where one

not having a right of precedence comes to a crossing hemay proceed as a matter of right when he finds no oneapproaching within such distance as reasonably to indicatedanger of interference or collision, applies to this subsectionalso. Van Zandt v. Goodman, ( 1947) 181 Or 80, 179 P2d 724.

Distinguished In Kennedy v. Farmers' Co -op. Creamery, 1956) 207 Or 160, 295 P2d 197.

This subsection does not require the turning driver tocontinue to yield the right of way to oncoming vehicles. Bostwick v. Logsdon, ( 1963) 234 Or 226, 380 P2d 982.

A strict compliance with the rule requiring a vehicle tobe driven on the right is not required except where vehiclesmeet and pass from opposite directions. Austin v. Portland

Traction Co., ( 1947) 181 Or 470, 182 P2d 412.

The question of plaintiffs negligence while guest in the

approaching vehicle in not warning her driver, should havebeen taken from the jury, where defendant failed to seethat he could make left turn in safety and failed to yieldto approaching vehicle, and danger of collision was notapparent until imminent. Hamilton v. Haworth, ( 1947) 180Or 477, 177 P2d 409.

Where defendant pulled straight across a diagonal intersection and evidence conflicted as to whether or not he

signaled a turn, plaintiff had reasonable ground to assume

defendant was going to turn right since traffic otherwiseordinarily made an immediate left turn. Cook v. Lomer, 1950) 188 Or 193, 215 P2d 359.

FURTHER CITATIONS: Hunsaker v. Pac. NW Public Serv. Co., ( 1933) 143 Or 583, 20 P2d 433; Buck v. Ice DeliveryCo., ( 1934) 146 Or 132, 29 P2d 523; Ervast v. Sterling, ( 1937) 156 Or 432, 68 P2d 137; Callander and Stone v. Brown, ( 1947)

181 Or 279, 178 P2d 922; Severy v. Myrmo, ( 1949) 186 Or611, 207 P2d 151; Blaylock v. Westluhd, ( 1953) 197 Or 536,

254 P2d 203; Rauw v. Huting & Sparks, ( 1953) 199 Or 48,

259 P2d 99; Hyatt v. Johnson, ( 1955) 204 Or 469, 284 P2d358; Clevenger v. Schallhorn, ( 1955) 205 Or 209, 286 P2d

476

SUPERSEDED

651; Brindle v. McCormick Lbr. & Mfg. Corp., ( 1956) 206

Or 333, 293 P2d 221; State v. Davis, ( 1956) 207 Or 525, 296

P2d 240; Moudy v. Boylan, ( 1959) 219 Or 448, 347 P2d 983; Owens v. Goss, ( 1963) 235 Or 102, 383 P2d 1013; Flande v.

Brazel, ( 1963) 236 Or 156, 386 P2d 920; Bush v. Johnson,

1964) 237 Or 173, 390 P2d 932; Beeler v. Collier, ( 1965) 240Or 141, 400 P2d 547; Isaacson v. Wirklan, (1967) 245 Or 612,

423 P2d 759.

ATTY. GEN. OPINIONS: Right of way at convergence ofentering traffic lane and right hand lane on multi -lanehighway, 1966 -68, p 95.

LAW REVIEW CITATIONS: 1 WLJ 459, 505, 514 -527

483.204

NOTES OF DECISIONS

This section does not demand that a motorist stop pre- cisely on the line where the cross street meets the prolong- ation of the nearest property line, but requires only substantial observance. Cameron v. Goree, ( 1948) 182 Or 581,

189 P2d 596; Biddle v. Mazzocco, ( 1955) 204 Or 547, 284 P2d364.

Drivers upon secondary ways must stop where they cansee both cars in the intersection and also those approachingupon the trunk highway. Cameron v. Goree, ( 1948) 182 Or581, 189 P2d 596.

When entering a public road from a private road a driveris required to stop before any part of the vehicle protrudesover any portion of the public road. Biddle v. Mazzocco,

1955) 204 Or 547, 284 P2d 364.

The administrative regulations of the commission adopt-

ed pursuant to this section imposed duties on employes forthe benefit of the commission, not for the benefit of thepublic. Ashland v. Pac. Power & Light Co., ( 1964) 239 Or

241, 397 P2d 538.

Defendant cab was not required to stop at the intersection of a through traffic street where the necessary stopstreet sign was not erected. Ramsdell v. Frederick, ( 1930)

132 Or 161, 285 P 219.

Driver of private ambulance, taking an injured personto a hospital, was not relieved by the emergency from theduty to stop at a stop street. Buck v. Ice Delivery Co., ( 1934) 146 Or 132, 29 P2d 523.

FURTHER CITATIONS: McMullen v. Robinson, ( 1957) 211Or 531, 316 P2d 503.

ATTY. GEN. OPINIONS: Right of way at convergence ofentering traffic lane and right hand lane of multilane highway, 1966 -68, p 95; duty of county to place traffic controlor warning signs on county or public roads, ( 1969) Vol 34, p 482.

483.206

NOTES OF DECISIONS

If a signal installed at the intersection of a private road

and public highway by a company with the approval ofthe county court indicates that the driver may proceed onthe private road without stopping, the driver may proceedwithout violating this section. Schoenborn v. Broderick, 1959) 202 Or 634, 277 P2d 787.

A school bus entering from a graveled parking space ontothe highway should have yielded the right of way to anautomobile stage approaching along the highway from' theleft. Bowerman v. Columbia Gorge Motor Coach System,

1930) 132 Or 106, 284 P 579. A driver was not required to get out of her car and

ascertain if there was any approaching traffic on the highway which she was entering from a crossroad at a place

483.210

where a steep bluff obstructed her view. McCartney v. Westbrook, ( 1930) 132 Or 468, 286 P 525.

The phrase - all vehicles . approaching on such publichighway" did not require explanation when incorporatedinto an instruction. Lee v. Hoff, ( 1940) 163 Or 374, 97 P2d

715.

FURTHER CITATIONS: Hawn v. W. J. Jones &' Son, ( 1930)

131 Or 660, 284 P 194; Ervast v. Sterling, ( 1937) 156 Or 432, 68 P2d 137; Persons v. Raven, ( 1949) 187 Or 1, 207 P2d 1051;

Brindle v. McCormick Lbr. & Mfg. Corp., ( 1956) 206 Or 333,

293 P2d 221; Graves v. Shippley, ( 1959) 215 Or 616, 300 P2d442, 337 P2d-347; Raffaele v. McLaughlin, ( 1961) 229 Or 301, 366 P2d 722; Simmons v. Holm, ( 1961) 229 Or 373, 367 P2d

368; Durkoop v. Mishler, ( 1963) 233 Or 243, 378 P2d 267; Dean v. Poole, ( 1963) 235 Or 606, 386 P2d 453.


483.208

NOTES OF DECISIONS

The right of emergency vehicles is not absolute but subject to the dictates of common prudence and the apparent

necessities of the case. West v. Jaloff, ( 1925)_ 113 Or 184, 232 P 642, 36 ALR 1391.

Exemption from duty to stop at stop streets in compliancewith the mandate of an ordinance or statute is not given

by this provision granting the right of way to ambulances. Buck v. Ice Delivery Co., ( 1934) 146 Or 132, 29 P2d 523.

Driver of emergency vehicle must drive with regard tothe safety of others. Siburg v. Johnson, ( 1968) 249 Or 556, 439 P2d 865.


audible warning in the operation of his vehicle, could notclaim that he was at the. time operating an emergencyvehicle within the exemption granted by the statutes. Dod- son v. Lemon, ( 1953) 197 Or 444, 253 P2d 900.

The driver of a vehicle was not liable, when he collided

with an emergency vehicle in an intersection. Anderson v. Finzel, ( 1955) 204 Or 162, 282 P2d 358.

483.210

NOTES OF DECISIONS

1. In general"

2. Crossing at crosswalks3. Jaywalking

1. In general

The care to be employed in exercising the rights heregiven is such as a reasonably prudent person would useunder similar circumstances and conditions. Cline v. Bush,

1935) 152 Or 63, 52 P2d 652; Maneff v. Lamer, ( 1936) 152

Or 619, 54 P2d 287; Keys v. Griffith, ( 1936) 153 Or 190, 55

P2d 15.

Crossing a street in violation of an ordinance is negligence per se. Senkirik v. Royce, ( 1951) 192 Or 583, 235 P2d

886; Leap v. Royce, ( 1955) 203 Or 566, 279 P2d 887. The question of negligence of the pedestrian or of the

motorist is not concluded by the statute. Keys v. Griffith, 1936) 153 Or 190, 55 P2d 15.

This section was intended to promote the safety of pedestrians and should be construed in furtherance of thatobject. Myhre v. Peterson, ( 1963) 233 Or 470, 378 P2d 1002.

A person is engaged in ' crossing" a street even thoughhe does not traverse it from curb to curb. Id.

Whether plaintiff was negligent in failing to keep a betterlookout for approaching vehicles was a question for thejury. Lantis v. Bishop, (1960) 224 Or 586, 356 P2d 158; Myhrev. Peterson, ( 1963) 233 Or 470, 378 P2d 1002.

477

SUPERSEDED

483.212

2. Crossing at crosswalksNo absolute or arbitrary right of way at nonregulated

crossings is given pedestrians, but the right must be exer-

cised with due care and caution. Hecker v. Union Cab Co., 1930) 134 Or 385, 293 P 726; Keys v. Griffith, ( 1936) 153

Or 190, 55 P2d 15.

A pedestrian may assume that a motorist will obey thelaw and yield the right of way where he is crossing thestreet in a pedestrian safety lane. Siskel v. Calhoun, ( 1934) 147 Or 606, 34 132d 659.

A motorist approaching a crosswalk must observewhether pedestrians are crossing, and, if so, give them anopportunity to cross in safety. Maneff v. Lamer, ( 1934) 148Or 455, 36 P2d 336.

A pedestrian crossing a street in an unmarked crosswalkhas the right to believe, until indications to the contraryappear, that approaching vehicles will permit him to passin safety. Sherrard v. Werline, ( 1939) 162 Or 135, 91 P2d344.

A pedestrian must exercise due care even though pro-

ceeding in a crosswalk. DeWitt v. Sandy Mkt. ( 1941) 167Or 226, 115 P2d 184.

The words " other places of safety" include not onlyplaces like curbs and safety islands but other positions ofrelative safety such as the center line area of the roadway. Plasker v. Fazio, ( 1971) 259 Or 171, 485 P2d 1075.

In subsection ( 1), " suddenly" means unexpectedly. Id. Whether failure to keep a continual lookout after passing

the center of the street constituted contributory negligenceon the part of a woman crossing in a pedestrian lane, wasfor the jury. Siskel v. Calhoun, ( 1934) 147 Or 606, 34 P2d659.

An instruction giving the motorist the right of way overa pedestrian in a regular pedestrian lane where the motorist,

acting as a reasonable prudent person, would apprehendthat he could pass with his car in front of the pedestrian

without coming in contact with him, was erroneous. Maneffv. Lamer, ( 1934) 148 Or 455, 36 P2d 336.

If a pedestrian stops or reverses his course at an intersection and places himself in a position of peril in such close

proximity to the driver's car that the driver would not havetime to stop, or change his course, to avoid a collision, thedriver was not liable in the absence of other negligence on

his part. Cline v. Bush, ( 1935) 152 Or 63, 52 P2d 652.

Whether the pedestrian moved into the path of the vehi-

cle when it was too close to yield was a jury question. Cummings v. Schunk, ( 1968) 249 Or 435, 439 132d 13.

3. JaywalkingSubsection (4) does not prohibit a pedestrian from cross-

ing a roadway other than at a crosswalk. Martin v. Harri- son, ( 1947) 182 Or 121, 180 P2d 119, 186 P2d 534.

A woman crossing the street diagonally in middle of blockwas not entitled to the right of way over a motorist. Bak - kum v. Holder, ( 1931) 135 Or 387, 295 P 1115.

A charge giving the right of way to the motorist wasproper where plaintiff pedestrian was crossing the streetat a point other than the regular pedestrian crossing. Man- eff v. Lamer, ( 1936) 152 Or 619, 54 P2d 287.

A driver was not relieved of the duty to exercise reasonable care to avoid injuring any pedestrian who saw fit tocross the street at some place other than a pedestrian lane.

Simpson v. Hillman, ( 1940) 163 Or 357, 97 P2d 527. Where a child of tender years sustained injuries when

struck by an automobile while crossing the street at a pointother than in a pedestrian lane, no presumption of negli-

gence was created by the mere happening of the accident. Id.

If plaintiff's walking out of the crosswalk caused her tocollide with defendant' s truck, she violated the provision

giving vehicles the right of way as much as though she

had walked in front of the truck. DeWitt v. Sandy Mkt. 1941) 167 Or 226, 115 P2d 184.

FURTHER CITATIONS: Manning v. Helbock, ( 1931) 135

Or 262, 295 P 207; Lott v. DeLuxe Cab Co., ( 1931) 136 Or

349, 299 P 303; Emmons v. Skaggs, ( 1931) 138 Or 70, 4 P2d

1115; Dixon v. Raven Dairy, ( 1938) 158 Or 186, 75 P2d 347; Canada v. Royce, ( 1953) 199 Or 196, 257 P2d 624; Lemons

v. Holland, ( 1955) 205 Or 163, 284 P2d 1041, 286 P2d 656;

Burke v. Olson, ( 1955) 206 Or 149, 291 P2d 759; Brindle v.

McCormick Lbr. & Mfg. Corp., ( 1956) 206 Or 333, 293 P2d

221; Barnes v. Winkler, ( 1959) 216 Or 130, 337 P2d 816; Hall

v. Tams, ( 1959) 219 Or 263, 346 P2d 1115; Yates v. Stading, 1959) 219 Or 464, 347 P2d 839; Bradfield v. Kammerrer,

1960) 225 Or 112, 357 P2d 278; Johnson v. Bennett, ( 1960) 225 Or 213, 357 P2d 527; Harr v. Olson, ( 1961) 228 Or 504,

364 P2d 1013; Raz v. Mills, ( 1962) 231 Or 220, 372 P2d 995;

Blanchette v. Arrow Towing Co., ( 1966) 242 Or 590, 410 132d

1010; Foles v. U.S. Fid. & Guar. Co., ( 1971) 259 Or 337, 486P2d 537.


LlT ww

CASE CITATIONS: Brindle v. McCormick Lbr. & Mfg. Corp., ( 1956) 206 Or 333, 293 P2d 221.

483.214


483.218

CASE CITATIONS: Young v. Crown Zellerbach Corp., 1966) 244 Or 251, 417 P2d 394; Foles v. United States Fid.

Guar. Co., ( 1971) 259 Or 337, 486 P2d 537.

483.220

NOTES OF DECISIONS

This section is mandatory. Zahara v. Brandli, ( 1939) 162Or 666, 94 P2d 718.

The purpose of this section is to make certain that pedes-

trians see approaching traffic so as to be able to step asideor remain in a place of safety. Lemons v. Holland, ( 1955) 205 Or 163, 284 P2d 1041, 286 P2d 656; Dimick v. Linnell, 1965) 240 Or 509, 402 P2d 734; Foles v. United States Fid.

Guar. Co., ( 1971) 259 Or 337, 486 P2d 537.

The conditions under which violation of a statute will

establish responsibility for injuries as a matter of law are: 1) There must be a causal connection between the conduct

which violates the law and the injury; (2) The injured partymust be a member of the class intended to be benefited

by the legislation; and ( 3) The harm that occurred mustbe the kind the statute intended to prevent. Dimick v.

Linnell, ( 1965) 240 Or 509, 402 P2d 734.

When pedestrian was complying with this section, it wasnot negligence per se for him to fail to anticipate that an

overtaking passing vehicle coming from the rear wouldoccupy the same space. Kellye v. Greyhound Lines, Inc.,

1968) 249 Or 14, 436 P2d 727; Aspuria v. Mello, ( 1970) 255Or 128, 464 P2d 680.

478

FURTHER CITATIONS: Scott v. Brogan, ( 1937) 157 Or 549, 73 P2d 688; Hall v. Tams, ( 1959) 219 Or 263, 346 P2d 1115;

Blanchette v. Arrow Towing Co., ( 1966) 242 Or 590, 410 P2d

1010; Smith v. Moore, ( 1966) 243 Or 413, 414 P2d 346.

SUPERSEDED

r

u483.222

NOTES OF DECISIONS

This section requires the operator, by lookout, to ascertain whether or not pedestrians are on the sidewalk. Dur-

koop v. Mishler, ( 1963) 233 Or 243, 378 P2d 267.

FURTHER CITATIONS: Swiatowski v. Jolenette, ( 1957) 210

Or 270, 309 P2d 1004.

483.226

NOTES OF DECISIONS

A pleading relying on this section which failed to allegethat the crossing had been properly designated as a dangerous crossing was insufficient to sustain a defense. Nicholsv. Union Pac. R.R., ( 1952) 196 Or 488, 250 P2d 379.

ATTY GEN. OPINIONS: Placement of stop signs, 1960 -62, p 102; Public Utility Commissioner's authority to order stopsigns, 1960 -62, p 102.

483.302

NOTES OF DECISIONS

1. In general

2. Subsection ( 1)

3. Subsection ( 2)

1. In general

This section does not contemplate strict compliance in

every case with the requirement as to driving on right -handside of road. Weinstein v. Wheeler, ( 1931) 135 Or 518, 295

P 196, 296 P 1079; Austin v. Portland Traction Co., ( 1947)

181 Or 470, 182 P2d 412; Biddle v. Mazzocco, ( 1955) 204 Or

547, 284 P2d 364; Oregon Farm Bureau Ins. Co. v. Harmon,

1964) 239 Or 282, 397 P2d 534; Tokstad v. Lund, ( 1970) 255

Or 305, 466 P2d 938.

An allegation of violation of this section is not supported

when there is no evidence to show that defendant drove

in the wrong lane voluntarily. Raz v. Mills, ( 1962) 231 Or220, 372 P2d 955; Pozsgai v. Porter, ( 1967) 249 Or 84, 435

P2d 818.

This section only applies when vehicles are approachingfrom the front. Spence v. Rasmussen, ( 1951) 190 Or 662,

226 P2d 819.

Under certain conditions a driver may be making " ordinary" use of the highway even though he is violating thissection. Southern Pac. Co. v. Raish, ( 1953) 205 F2d 389.

This section does not apply to any situation except thatin which oncoming vehicles are meeting. Lindner v. Ahl- gren, ( 1970) 257 Or 127, 477 P2d 219. Overruling Falls v. Mortensen, ( 1956) 207 Or 130, 295 P2d 182.

This section did not apply to a trolley bus which wassuddenly faced with an automobile coming toward it onthe wrong side of the street, and swerved to its left takingthe only open avenue of escape, but was struck by theautomobile when it swung back to its right. LaVigne v. Portland Traction Co., (1946) 179 Or 221, 170 P2d 709.

The court did not err in its instruction of the duty ofthe drivers under this section. Arrow Trans. Co. v. NW

Grocery Co., ( 1971) 258 Or 363, 482 P2d 519.

2. Subsection ( 1)

Except when the right half is out of repair" is a true

proviso and need not be negatived. Moe v. Alsop, ( 1950) 189 Or 59, 216 P2d 686.

Driving on the left side of a winding road at a rapid speedwhile racing a vehicle on the right side was sufficient evidence of gross negligence. Younger v. Gallagher, (1933) 145

Or 63, 26 P2d 783.

That a pedestrian was leading his horse did not bringhim under the rule of the road applicable to vehicles so

479

483. 306

as to require him to proceed on the right side of the high-

way. Sertic v. McCullough, ( 1936) 155 Or 216, 63 P2d 884. 3. Subsection ( 2)

This subsection was not enacted for the protection ofpedestrians but for the regulation of traffic. Hamilton v.

Finch, ( 1941) 166 Or 156, 111 P2d 81; Falls v. Mortensen, 1956) 207 Or 130, 295 P2d 182; Johnson v. Bennett, ( 1960)

225 Or 213, 357 P2d 527. As " close as practicable" does not mean that the driver

shall operate his vehicle so close to the edge of the pave-

ment as to create a danger of his car's right wheels acci-

dentally slipping off the paved portion of the highway ata point where to do so would be hazardous. Prauss v.

Adamski, ( 1952) 195 Or 1, 244 P2d 598.

FURTHER CITATIONS: Gum v. Wooge, ( 1957) 211 Or 149,

315 P2d 119; Newbern v. Exley Produce Exp. ( 1958) 212 Or458, 320 P2d 678; Layne v. Portland Traction Co., ( 1958)

212 Or 658, 319 P2d 884, 321 P2d 312; Voight v. Nyberg, 1959) 218 Or 383, 345 P2d 821; Scott v. Bothwell, ( 1966)

243 Or 97, 412 P2d 14; Smith v. Moore, ( 1966) 243 Or 413, 414 P2d 346; Harrison v. Avedovech, ( 1968) 249 Or 584, 439

P2d 877.


483.304

NOTES OF DECISIONS

This section applies to those whose course in general is

along the highway and not to one endeavoring to crossthe highway. Lee v. Hoff, ( 1940) 163 Or 374, 97 P2d 715.

The purpose of this section is to accelerate traffic and

to require, under normal conditions, slow moving vehiclesto be driven in the lane nearest the right -hand edge or curb

of the highway; and where there is no casual connectionbetween violation of this rule and a collision, the rule has

no application. Mercer v. Risberg, ( 1948) 182 Or 526, 188P2d 632.

Under certain conditions a driver may be making " ordinary" use of the highway even though he is violating thissection. Southern Pac. Co. v. Raish, ( 1953) 205 F2d 389.

This statute- is unambiguous and mandatory. Hyatt V. Johnson, ( 1955) 204 Or 469, 284 P2d 358.

An instruction in the language of subsection ( 2) was

erroneous where a collision resulted from turning a vehicleleft across the highway between intersections. Black v. Stith, ( 1940) 164 Or 117, 100 P2d 485.

An instruction using the words of the statute, when readwith other instructions, was proper. Eccles v. Hoy, ( 1971) 258 Or 524, 482 132d 720.

FURTHER CITATIONS: Hopfer v. Straudt, ( 1956) 207 Or

487, 298 P2d 186; Raz v. Mills, ( 1962) 231 Or 220, 372 P2d

995.

ATTY. GEN. OPINIONS: Right of way at convergence ofentering traffic lane and right hand lane of multi -lane highway, 1966 -68, p 95.

483.306

NOTES OF DECISIONS

Failure to keep to the right does not constitute negligenceif there is nothing to the left which will be affected by thecar's presence there. Barnes v. Davidson, ( 1951) 190 Or 508,

226 P2d 289.

Court's finding that defendant motor truck driver wasguilty of negligence in failing to give half of highway toplaintiff motorcyclist, as required by statute, was sustainedby evidence. Wilson v. Bittner, ( 1929) 129 Or 122, 276 P 268, 64 ALR 132.

SUPERSEDED

483.308

FURTHER CITATIONS: Gum v. Wooge, ( 1957) 211 Or 149,

315 P2d 119; Newbern v. Exley Produce Exp., ( 1958) 212

Or 458, 320 P2d 678; Raz v. Mills, ( 1962) 231 Or 220, 372

P2d 995; Smith v. Moore, ( 1966) 243 Or 413, 414 P2d 346;

Harrison v. Avedovech, ( 1968) 249 Or 584, 439 P2d 877.

LAW REVIEW CITATIONS:• I WLJ 662.

483.308,

NOTES OF DECISIONS

A pedestrian leading a horse does not come within thestatutory rule of the road as to passing vehicles. Sertic v. McCullough, ( 1936) 155 Or 216, 63 P2d 884.

Driving on the left side of the highway is not negligentconduct if that side is free of traffic and the driver has a

clear view along the highway for at least 500 feet. Fossiv. George, ( 1951) 191 Or 113, 228 P2d 798.

On a through street or highway it is lawful to pass aslow moving vehicle at an intersection unless such vehicleis making a turn. Valdin v. Holteen, ( 1953) 199 Or 134, 260P2d 504. But see Perdue v. Pac. Tel. & Tel. Co., ( 1958) 213

Or 596, 326 P2d 1026.

Subsection ( 3) is not limited to cases where cross trafficis present in the intersection. Perdue v. Pac. Tel. & Tel.

Co., ( 1958) 213 Or 596, 326 P2d 1026.

Whether a motorist may safely pass another motor vehicle at an intersection is judged- in the light of the situation

as it appears to a reasonably prudent person. Jepsen v. Magill, ( 1966) 243 Or 34, 411 P 2d 267.

There was evidence of gross negligence where defendantspeeded up his truck to overtake another one, and afterracing the latter on the left side of a winding road, turnedsharply to the right in front of it to avoid collision with

an oncoming car. Younger v. Gallagher, ( 1933) 145 Or 63, 26 P2d 783.

Evidence that at a sharp blind turn on a mountainside, defendant attempted to pass another car in violation of the

statute warranted the jury in finding him negligent: Hombyv. Wiper, ( 1936) 155 Or 203, 63 P2d 204.

FURTHER CITATIONS: Turner v. McMillan, ( 1932) 140 Or407, 14 P2d 294; Biddle v. Mazzocco, ( 1955) 204 Or 547, 561,

284 P2d 364; Califf v. Norman, ( 1957) 210 Or 198, 310 P2d319; Gum v. Wooge, (1957) 211 Or 149, 315 P2d 119; Newbem

v. Exley Produce Exp. Co., .(1958). 212 Or 458; 320 P2d 678;

Voight v. Nyberg; ( 1959) 218 Or 383, 345 P2d 821; Thomv. Poss, ( 1960) 278 F2d 811; State v. Powell, ( 1962) 233 Or

71, 377 P2d 7, cert. denied, 84 S Ct 176, 11 L Ed 2d 126;

State v. Betts, ( 1963) 235 Or 127, 384 P2d 198; Oregon FarmBureau Ins. Co. v. Harmon, ( 1964) 239 Or 282, 397 P2d 534;

Padel v. Marits, ( 1967) 247 Or 566, 430 P2d 1002.

ATTY. GEN. OPINIONS: Construction of 'obstructed visi-

bility," 1958 -60, p 63; construing subsection ( 1) and paragraph ( a) of subsection ( 2), 1966 -68, p 10.

483.310

NOTES OF DECISIONS

Driver of overtaking vehicle giving signal of his intentionto pass does not have a duty to make certain at his perilthat it is heard. Voight v. Nyberg, ( 1959) 218 Or 383, 345P2d 821.

FURTHER CITATIONS: Homby v. Wiper, ( 1936) 155 Or203, 63 P2d 204; Kilkenny v. Beebe, ( 1948) 184 Or 516, 199P2d 916; Spence v. Rasmussen, ( 1951) 190 Or 662, 226 P2d819; Valdin v. Holteen, ( 1953) 199 Or 134, 156, 260 P2d 504; Biddle v. Mazzocco, ( 1955) 204 Or 547, 561, 284 P2d 364; Brindle v. McCormick Lbr. & Mfg. Corp., ( 1956) 206 Or 333,

293 P2d 221; Falls v. Mortensen, ( 1956) 207 Or 130, 295 P2d

182; Marshall v. Mullin, ( 1958) 212 Or 421, 320 P2d 258;

Perdue v. Pac. Tel. & Tel. Co., ( 1958) 213 Or 596, 326 P2d

1026; Ray v. Anderson, ( 1956) 240 Or 619, 403 P2d 372.

483.312

NOTES OF DECISIONS

The prohibition in this section is for the benefit not onlyof the car ahead but others as well. Rough v. Lamb, ( 1965)

240 Or 240, 401 P2d 10.

FURTHER CITATIONS: Garland v. Wilcox, ( 1960) 220 Or

325, 348 P2d 1091; Lehr v. Gresham Bent' Growers, ( 1962) 231 Or 202, 372 P2d 488; Jaeger v. Estep, ( 1963) 235 Or 212, 384 P2d 175; Butler v. Wilhelm, ( 1964) 238 Or 487, 395 P2d

447; Miller v. Harder, ( 1965) 240 Or 418, 402 P2d 84; Evans

v. Gen. Tel. Co., ( 1971) 257 Or 460, 479 P2d 747.

483.314

NOTES OF DECISIONS

This section was without application where no signal was

given by the rider of the horse, and the horse did not appearbadly frightened or frightened at all. Lawry v. McKennie, 1945) 177 Or 604, 164 P2d 444.

483.316

NOTES OF DECISIONS

The court has no right to modify the statutory requirement as to turning at intersections because compliance withit may be at some time impractical or cumbersome. Kitchelv. Gallagher, ( 1928) 126 Or 373, 270 P 488.

Entering intersection to left of center line of street, constitutes contributory negligence of the driver of the carmaking such entry where a collision with another car

occurs, but only where the negligence contributes jointlywith the negligence of the defendant in causing the damagesustained. Williams v. Bryson, ( 1935) 149 Or 413, 40 P2d61.

This section was applicable to vehicles proceeding arounda circular island and making turns out from the circulardrive to an intersecting street. Williams v. Donohoe, ( 1960) 222 Or 578, 353 P2d 521.

Paragraph ( 1) ( b) was enacted to apply to protection ofautomobiles rather than pedestrians. Johnson v. Bennett,

1960) 225 Or 213, 357 P2d 527.

Paragraph ( 1) ( a) requires the driver to travel along theright -hand lane if there are two lanes of travel whether or

not the lanes are marked. Williams v. Nelson, ( 1961) 229Or 200, 366 P2d 894.

A pedestrian had the right to assume that a vehicle oper-

ator in making a left -hand turn would keep to the rightof the center of the intersection. Ordeman v. Watkins, (1925) 114 Or 581, 236 P 483.

A taxicab driver in making a right turn would be guiltyof violating the statute if he failed to keep as closely aspracticable to the right -hand curb or edge of the highway. Lott v. DeLuxe Cab Co., ( 1931) 136 Or 349, 299 P 303.

An instruction which emphasized the second commandof paragraph ( 1) ( a) and ignored the requirement that a

right turn be made from lane nearest right -hand side ofhighway, upon which plaintiff had based his claim, wasreversible error. Thom v. Poss, ( 1960) 278 F2d 811.

FURTHER CITATIONS: Casto v. Hansen, ( 1927) 123 Or 20, 261 P 428; Cockerham v. Potts, ( 1933) 143 Or 80, 20 P2d423; Davis v. Lavenik, (1946) 178 Or 90, 165 P2d 277; Austin

v. Portland Traction Co., ( 1947) 181 Or 470, 182 P2d 412; Clark v. Fazio, ( 1951) 191 Or 522, 230 P2d 553; Rauw v.

Huting & Sparks, ( 1953) 199 Or 48, 259 P2d 99; Hopfer v.

Straudk ( 1956) 207 Or 487, 298 P2d 186; Ewing v. Izer, (1966)

480

C

SUPERSEDED

243 Or 367, 412 P2d 795; Evans v. Gen. Tel. Co., ( 1971) 257

Or 460, 479 P2d 747.

483.318

NOTES OF DECISIONS

A truck driver's duty to look out for oncoming trafficbefore turning around on a street could not be delegatedto a boy riding on the truck. Peters v. Johnson, ( 1928) 124Or 237, 264 P 459.

483.338

CASE CITATIONS: Hornby v. Wiper, ( 1936) 155 Or 203, 63P2d 204.

483.343


483.362

NOTES OF DECISIONS

1. Parking on highwayRegardless of the application of subsection ( 1), a driver

has a common law duty to refrain from parking in sucha manner as to constitute a source of danger to others usingthe highway. Graves v. Shippey, ( 1959) 215 Or 616, 625, 300P2d 442, 337 P2d 347; Parrott v. Spear, ( 1971) 259 Or 503, 487 P2d 71.

The provisions of subsection ( 1) do not apply to vehicleswhich have merely turned to the side of the road for thepurpose of avoiding a collision with an approaching vehicle. Cavett v. Pac. Greyhound Lines, ( 1946) 178 Or 363, 167 P2d941.

This section does not apply to stops made prior to turnsat intersections. Wells v. Washington County, ( 1966) 243Or 246, 412 P2d 798.

Park means the voluntary act of leaving a car on thehighway when not in use. Dixson v. Jackson ( 1970) 256 Or525, 474 P2d 522.

This section does not conflict with ORS 485.020. McLain

v. Lafferty, ( 1971) 257 Or 553, 480 P2d 430. Leaving an undisabled milk truck on the right side of

a paved way in front of a customer's house with two rightwheels twelve to eighteen inches off the pavement, wasnegligence on the part of the deceased, where it was shown

that he could have driven his car onto the level ground

alongside the pavement. Townsend v. Jaloff, (1928). 124 Or644, 264 P 349.

A city ordinance prohibiting parking automobiles morethan one foot from the curb was not contradictory of thisstatute nor inconsistent therewith. Ceccacci v. Garre, (1938) 158 Or 466, 76 P2d 283.

Instruction that if plaintiff could not remove her car from

the highway and the car might be struck from behind, itwas plaintiffs duty to alight, was error as it disregardedthe prudent man standard of due care. Morris v. Fitzwater, 1949) 187 Or 191, 210 P2d 104.

Instruction that if plaintiff could have moved her car from

the highway she was under duty to do so, and failure todo so constituted negligence barring recovery, was noterroneous. Id.

Refusal to charge that parking at night without lightswas not negligence, provided 16 feet of highway was unob- structed, was correct, where charge did not include statu-

tory requirement as to 200 feet visibility and impracti- cability of parking off the highway. Id.

The facts did not bring plaintiff within the exculpatoryclause of this section: Smith v. Moore, ( 1966) 243 Or 413,

414 P2d 346.

483.402

2. Emergency stops on highwayLeaving a disabled car temporarily on the highway is not

a violation of the law. Dare v. Boss, ( 1924) 111 Or 190, 224

P 646; Frame v. Arrow Towing Serv., ( 1937) 155 Or 522,

64 P2d 1312. The words " so disabled as to prohibit," as used in a

former similar statute did not necessarily indicate that thevehicle could not be moved but that it would be unsafe

to move it under the conditions existing at the place andtime. Martin v. Ore. Stages, ( 1929)- 129 Or 435, 277 P 291.

Whether or not the driver of a disabled car has violated

this statute is a question of fact for the jury. Borgert v. Spurfing, ( 1951) 191 Or 344, 230 P2d 183.

Where a disabled vehicle could have been moved, so as

to allow 16 feet clearance for free passage of other vehicles,

by means other than under its own power, the disabledvehicle is not permitted, under this section, to obstruct the

highway for a protracted length of time when there is areasonable opportunity to remove it. Shelton v. Lowell, 1952) 196 Or 430, 249 P2d 958.

The exception relating to disabled vehicles may providea defense; plaintiff is not required to negate it. Dixson v.

Jackson, ( 1970) 256 Or 525, 474 P2d 522.

Whether a vehicle was stopped to refill radiator, as

claimed by the driver, and whether there was such anemergency as to justify stopping, was a question for thejury. Watt v. Associated Oil Co., ( 1927) 123 Or 50, 260 P

1012.

Where for want of gasoline, the car was stopped on the

highway at a spot to the right of which there was a six -foot, rain- soaked, muddy shoulder, the parties were not negligentin shoving the car 450 feet ahead to a graveled area insteadof moving it onto the shoulder. Holman v. Uglow, ( 1931) 137 Or 358, 3 P2d 120.

Stopping with left hind wheel on the pavement, it beingimpossible to proceed for want of gasoline, was not con-

tributory negligence as a matter of law. Hornshuh v. All- dredge, ( 1935) 149 Or 419, 41 P2d 423.

3. Subsection ( 4)

Failure to comply with subsection ( 4) is negligence asa matter of law, and the trial court may properly so instructthe jury. Frame v. Arrow Towing Serv., ( 1937) 155 Or 522,

64 P2d 1312.

That the State Highway Commission has performed itsduty with respect to the approval of warning signals orsigns, was presumed. Id.

FURTHER CITATIONS: Hunsaker v. Pac. Northwest Public

Serv. Co., ( 1933) 143 Or 583, 20 P2d 433; Gossett v. Van

Egmond, ( 1945) 176 Or 134, 155 P2d 304; Blair v. Rice, ( 1952) 195 Or 587, 246 P2d 542; Flande v. Brazel, ( 1963) 236 Or156, 386 P2d 920; Dokken v. Rieger, ( 1970) 255 Or 433, 467

P2d 968; Ballard v. Rickabaugh Orchards, Inc., ( 1971) 259

Or 200, 485 P2d 1080.

ATTY. GEN. OPINIONS: Storage of abandoned vehicle in

county where taken into custody, 1966 -68, p 420.

483.380 to 483.396

ATTY. GEN. OPINIONS: Impoundment procedure, 1966 -68,

p 420.

483.402

NOTES OF DECISIONS

Failure to have the required fights does not bar a recoveryunless such failure is a contributing cause of the accident. Ellenberger v. Fremont Land Co. ( 1940) 165 Or 375, 107 P2d

837; Loibl v. Niemi, ( 1958) 214 Or 172, 327 P2d 786.

To have lights on a truck when parked on a highway

481

SUPERSEDED

483.404

after dark is more necessary than if the truck were moving. Murphy v. Hawthorne, ( 1926) 117 Or 319, 244 P 79, 44 ALR1397.

The purpose of requiring lighting equipment on motorvehicles is to facilitate the safety of the car displaying lightsand all others using a thoroughfare, including the personsapproaching from an intersection street. Schrunk v. Haw- kins, ( 1930) 133 Or 160, 289 P 1073.

Legislative purpose in requiring headlamps was to adviseother travelers of the vehicle' s presence and to advise the

driver of the conditions existing upon the highway. Hyattv, Johnson, ( 1955) 204 Or 469, 284 P2d 358.

Whether failure to have his lights properly adjusted constituted contributory negligence of a motorist colliding with

a logging train was a question for the jury. Christensenv, Willamette Valley R. Co. ( 1932) 139 Or 666, 11 P2d 1060.

Time of accident and degree of visibility were questionsfor jury on issue of defendant's contributory negligence forviolation of this section. Loibl v. Niemi, ( 1958) 214 Or 172,

327 P2d 786.

FURTHER CITATIONS: Kiddie v. Schnitzer, ( 1941) 167 Or

316, 114 P2d 109, 117; Marchant v. Clark, ( 1960) 225 Or 273, 357 P2d 541; Dokken v. Rieger, ( 1970) 255 Or 433, 467 P2d

968.

ATTY. GEN. OPINIONS: Driving in violation of dim- outregulations as reckless driving, 1942 -44, p 75; " road light" as similar to headlamp, 1948 -50, p 127; reflecting light asnot self - illuminating, 1948 -50, p 354; clearance lights neededby army trucks, 1948 -50, p 430; application to city -ownedcycles used by meter maids, 1966 -68, p 350.


483.404

NOTES OF DECISIONS

One who rides a bicycle which is not equipped withproper lights has not the status of a trespasser as he pro-

ceeds along the highway; nor does his omission to displaythe required reflector convert himself into a nuisance so

as to preclude recovery for injuries sustained. Landis v. Wick, ( 1936) 154 Or 199, 57 P2d 759, 59 P2d 403.

The sole purpose of requiring head lamps and reflectorson bicycles is to make their presence known to drivers of

other vehicles, while head lamps are mandatory on motorvehicles in order to afford good visibility to the driver. Spence v. Rasmussen, ( 1951) 190 Or 662, 226 P2d 819.

If a bicycle has a reflector it is presumed that the reflector

is properly mounted so as to comply with this section. Id. The violation of this section in regard to bicycle head

lamps was not the proximate cause of an accident in which

the bicycle was struck from the rear. Id.

FURTHER CITATIONS: Brenne v. Hecox, ( 1929) 129 Or 210,

277 P 99; Schrunk v. Hawkins, ( 1930) 133 Or 160, 289 P 1073; Leap v. Royce, ( 1955) 203 Or 566, 279 P2d 887.

ATTY. GEN. OPINIONS: " Road light" as similar to head-

lamp, 1948 -50, p 127.

483.406

NOTES OF DECISIONSFailure to have a red light on the rear of a truck on the

highway after dark constitutes negligence. Ross v. Willam- ette Valley Transfer Co., ( 1926) 119 Or 395, 248 P 1088.

It is a continuing duty of an operator of a motor vehicleto provide statutory lights whether the motor vehicle ismoving or stationary and failure to do so constitutes negli-

gence per se. Hickerson v. Jossey, ( 1930) 131 Or 612, 282P 768, 283 P 1119.

FURTHER CITATIONS: Johnson v. Updegrave, ( 1949) 186

Or 196, 206 P2d 91; State v. Miller, ( 1970) 2 Or App 87, 465P2d 894, Sup Ct review denied.

483.407

ATTY. GEN. OPINIONS: Effect of this section on stop lightrequirements of ORS 483.410, 1964 -66, p 358.

483.410

NOTES OF DECISIONS

Lighting equipment provisions will be interpreted in aspractical a manner as possible to render effective the pur-

poses sought to be served. Schrunk v. Hawkins, ( 1930) 133

Or 160, 289 P 1073.

FURTHER CITATIONS: Johnson v. Updegrave, ( 1949) 186

Or 196, 206 P2d 91; Leap v. Royce, ( 1955) 203 Or 566, 279P2d 887.

ATTY. GEN. OPINIONS: Clearance lights needed by armytrucks, 1948 -50, p 430; effect of ORS 483.407 on stop lightrequirements of this section, 1964 -66, p 358.

483.422

CASE CITATIONS: Wold v. Portland, ( 1940) 166 Or 455, 112 P2d 469.

483.424

NOTES OF DECISIONS

If a motorist complies with this statute he will see abicycle on the road before he hits it. Spence v. Rasmussen,

1951) 190 Or 662, 226 P2d 819.

Legislative purpose in requiring headlamps was to adviseother travelers of the vehicle' s presence and to advise the

driver of the conditions existing upon the highway. Hyattv. Johnson, ( 1955) 204 Or 469, 284 P2d 358.

FURTHER CITATIONS: Alt v. Krebs, ( 1939) 161 Or 256, 88 P2d 804; Kiddie v. Schnitzer, ( 1941) 167 Or 316, 114 P2d

109.

483.430

CASE CITATIONS: Marquess v. Taylor, ( 1958) 214 Or 619, 331 P2d 879.

483.432

ATTY. GEN. OPINIONS: Volunteer firemen having upontheir private cars a red light when such cars are designated

or authorized by the police authorities as " authorizedemergency vehicles," 1944 -46, p 427; validity of a light whichrotates with the front wheels, 1948 -50, p 127; authority ofbrand inspector to use a siren or red light on his vehicle,

1966 -68, p 65; vehicles of the Federal Bureau of Investigationas emergency vehicles, 1966 -68, p 499.

483.434

ATTY. GEN. OPINIONS: Spot light on motor vehicle,

1946 -48, p 514; adequacy of mechanical signal device, 1948- 50, p 354.

482

SUPERSEDED

483.456

ATTY. GEN. OPINIONS: Authority to test motor vehiclelighting equipment, 1930 -32, p 237; vehicles of the FederalBureau of Investigation as emergency vehicles, 1966 -68, p499.

483.438

ATTY. GEN. OPINIONS: Authority to test motor vehiclelighting equipment, 1930 -32, p 237; approval of reflectinglight for daytime use, 1948 -50, p 354.

483.443

NOTES OF DECISIONS

Subsection ( 1) was constitutional. State v. Fetterly, (1969) 254 Or 47, 456 P2d 996.

ATTY. GEN. OPINIONS: Application to city -owned cyclesused by meter maids, 1966 -68, p 350; regulating protectiveheadgear of motorcyclists on private property, 1966 -68, p548.


483.444

NOTES OF DECISIONS

Violation of a statutory standard of care is negligenceas a matter of law except when it can be shown that the

violation was wholly beyond the control of the operatorand it was impossible to comply, in which case failure tocomply is excused. Hills v. McGillvrey, ( 1965) 240 Or 476, 402 P2d 722; McConnell v. Herron, ( 1965) 240 Or 486, 402

P2d 726; Ainsworth v. Deutschman, ( 1968) 251 Or 596, 446

P2d 187; Rankin v. White, ( 1971) 258 Or 252, 482 P2d 530;

McConnell v. Herron, supra, overruling Nettleton v. Jones, 1958) 212 Or 375, 319 P2d 879; Daniels v. Riverview Dairy, 1930) 132 Or 549, 287 P 77, and Foster v. Farra, ( 1926) 117

Or 286, 293, 243 P 778.

The brake test must be on a " dry, hard, approximatelylevel stretch of highway, free from loose material." South- ern Pac. Co. v. Raish, ( 1953) 205 F2d 389.

The trial judge must rule as a matter of law whether

facts asserted as an excuse, if true, constitute a lawfulexcuse for the violations. McConnell v. Herron, ( 1965) 240Or 486, 402 P2d 726.

An instruction based upon the statute was properly refused when it did not embrace all the essential elements

of the terms of the brake- testing statute, and when it wasnot shown that the uneven street railway track where theaccident occurred was a proper place to test the brakes

of the vehicle. Smith v. Pac. NW Pub. Serv. Co. ( 1934) 146

Or 422, 29 P2d 819.

FURTHER CITATIONS: McCallister v. Farra, ( 1926) 117 Or

278, 243 P 785; Foster v. Farra, ( 1926) 117 Or 286, 243 P

778; Daniels v. Riverview Dairy, ( 1930) 132 Or 549, 287 P77; Bogart v. Cohen- Anderson Motor Co., ( 1940) 164 Or 233,

98 P2d 720; Stout v. Madden, ( 1956) 208 Or 294, 300 P2d461; Rose v. Portland Traction Co., ( 1959) 219 Or 1, 341 P2d

125, 346 P2d 375; Strubhar v. So. Pac. Co., ( 1963) 234 Or

12, 379 P2d 1014; Watson v. Dodson, ( 1964) 238 Or 621, 395

P2d 866.

LAW REVIEW CITATIONS: 45 OLR 156 -160; 4 WLJ 383.

483.446

NOTES OF DECISIONS

A horn on a motor vehicle is provided as a means of

483.458

warning and is required to be used only when warningappears reasonably necessary or is commanded by statute. Owens v. Holmes, ( 1953) 199 Or 332, 261 P2d 383.

FURTHER CITATIONS: NcNab v. O' Flynn, ( 1928) 127 'Or

490, 272 P 670.

ATTY. GEN. OPINIONS: Sirens on vehicles used by livestock theft detection officers, 193840, p 231; volunteerfiremen having a siren upon their private cars when suchcars are designated or authorized by the police authoritiesas " authorized emergency vehicles," 194446, p 427; installation and use of sirens by members of fire protection district, 1950 -52, p 232; authority of brand inspector to use asiren or red light on his vehicle, 1966 -68, p 65; vehicles ofthe Federal Bureau of Investigation as emergency vehicles, 1966 -68, p 499.

483.448

ATTY. GEN. OPINIONS: Construction of term " muffler"

used on motor vehicle, 1936 -38, p 680; in determiningwhether or not a noise could have been avoided in a partic-

ular case, observing the common sense rule of " reasonableness," 1944 -46, p 291; application to " squealing" tires, 1966 -68, p 360.

483.450

NOTES OF DECISIONS

Absence from plaintiffs truck of a rear view mirror did

not constitute contributory negligence per se so as to require the granting of a nonsuit, where plaintiff was fullyinformed of the approach of defendant' s car from the rear

by other means. Kuehl v. Hamilton, ( 1931) 136 Or 240, 297P 1043.

FURTHER CITATIONS: Voight v. Nyberg, ( 1959) 218 Or383, 345 P2d 821.

483.452

NOTES OF DECISIONS

Nontransparent sleet naturally forming on the windshieldof an automobile is not within the purview of this section.

Kirkley v. Portland Elec. Power Co. ( 1931) 136 Or 421, 298P 237.

FURTHER CITATIONS: Voight v. Nyberg, ( 1959) 218 Or383, 345 P2d 821.

483.456

NOTES OF DECISIONS

When no evidence was offered to show that failure to

put out the red flags could not have been a cause of the

accident, an instruction on a driver' s duty under this sectionwas error. Tokstad v. Lund, ( 1970) 255 Or 305, 466 P2d 938.

FURTHER CITATIONS: Rusho v. Miller, (1965) 239 Or 475, 398 P2d 191; Dokken v. Rieger, ( 1970) 255 Or 433, 467 P2d968.

ATTY. GEN. OPINIONS: Flashing red signal flare as awarning flare, 1946 -48, p 498.

483.458

NOTES OF DECISIONS

Plaintiffs vehicles were within the meaning of this section. White Bros. Constr. Co. v. Ore. State Police, ( 1967) 246 Or 106, 424 P2d 221.

483

SUPERSEDED

483.460

ATTY. GEN. OPINIONS: Truck tractors or dollies when

operating without semitrailers attached as required to beequipped with fenders or covers, 194648, p 294; truck tractors or dollies when operated with semitrailers as required

to have flaps, fenders or covers on the rear wheels of the

semitrailers, 1946 -48, p 294; application of this section, relating to fenders, flaps and splash aprons required to beplaced on motor vehicles, to trailers ( now truck trailers)

and semitrailers having a combined weight of 4, 500 poundsor less, 1946 -48, p 331.

483.460

NOTES OF DECISIONS

Plaintiff's vehicles were within the meaning of this section. White Bros. Constr. Co. v. Ore. Police, ( 1967) 246 Or106, 424 P2d 221.

483.482 to 483.488

NOTES OF DECISIONS

Mere failure to use seat belts is not negligence per se.

Robinson v. Bone, ( 1968) 285 F Supp 423; Robinson v. Lewis, 1969) 254 Or 52, 457 P2d 483; Ginger v. Campbell, ( 1970)

256 Or 67, 469 P2d 776.

This law does not require the occupant of a vehicle to

use the seat belt. Robinson v. Bone, ( 1968) 285 F Supp 423.

483.482

CASE CITATIONS: Siburg v. Johnson, ( 1968) 249 Or 556, 439 P2d 865.


483.502 to 483.545


Comm., ( 1961) 229 Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: As dealing with vehicles liable todo excessive damage to highways, 1958 -60, p 64; road located on railroad right -of -way as a " highway," 1960 -62, p 101.

483.502

NOTES OF DECISIONS

In subsection ( 3), " being used by" an incorporated cityincludes only vehicles owned or leased by the city, but notvehicles operated by private contractors or subcontractors. State v. Foster, ( 1960) 222 Or 103, 352 P2d 502; Sorenson

v. Tillamook County, ( 1970) 255 Or 381, 467 P2d 433. Under subsection ( 3), the trial court properly found

plaintiff was not " at the immediate location or site of suchconstruction, maintenance or repair." Sorenson v. Tilla-

mook County, ( 1970) 255 Or 381, 467 P2d 433.

FURTHER CITATIONS: State v. O. K. Transfer Co., ( 1958)

215 Or 8, 330 P2d 510; State v. Pyle, ( 1961) 226 Or 485, 360

P2d 626; Roy L. Houck & Sons v. State Tax Comm., ( 1961)

229 Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: Authority of county to issue blanket permits for log trucks exceeding certain statutory loadlimitations, 1948 -50, p 232; effect of failure to prescribemaximum penalties for violation, 1950 -52, p 250; authorityto suspend or partially suspend imposition or execution ofsentence, 1952 -54, p 166; taxability of Tournapull E -50 aspersonal property, 1956 -58, p 10; providing. no charge forspecial permit, 1956 -58, p 132; use of highways by roadgraders and road rollers, 1958 -60, p 64; jurisdiction of state

courts for traffic offenses committed within Indian reserva-

tion, 1958 -60, p 172.

483.504

CASE. CITATIONS: State v. Foster, ( 1960) 222 Or 103, 352


229 Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: Authority of county to issue blanket permits for log trucks exceeding certain statutory loadlimitations, 1948 -50, p 232; truck carrying farm license asimplement of husbandry." 1950 -52, p 365; taxability of

Tournapull E -50 as personal property, 1956 -58, p 10; licensefees for vehicles with a load extending more than three feetbeyond the front thereof, 1956 -58, p 132; determining eligibility of vehicles for continuous operation permits; 1958 -60, p 148; as not defining logs, poles or piling, 1960 -62, p 71.

NOTES OF DECISIONS

Classifications in this section are not arbitrary or unconstitutional. State v. Pyle, ( 1961) 226 Or 485, 360 P2d 626.

FURTHER CITATIONS: Powers v. Coos Bay Lbr. Co., 1954) 200 Or 329, 263 P2d 913; State v. Foster, ( 1960) 222

Or 103, 352 P2d 502.

ATTY. GEN. OPINIONS: Overweight load permit as voided

if violated, 1952 -54, p 29; tournapull as exceeding theselimitations, 1956 -58, p 10; determining eligibility of vehiclesfor continuous operation permits, 1958 -60, p 148; as notdefining logs, poles or piling, 1960 -62, p 71.


483.508

CASE CITATIONS: State v. Smith, ( 1953) 198 Or 31, 255P2d 1076; Rankin v. White, ( 1971) 258 Or 252, 482 P2d 530.

483.512

CASE CITATIONS: State v. Pyle, ( 1961) 226 Or 485, 360P2d 626.


if violated, 1952 -54, p 29.

483.516

CASE CITATIONS: State v. Pyle, ( 1961) 226 Or 485, 360

P2d 626; Sorensen v. Tillamook County, ( 1970) 255 Or 381, 467 P2d 433.


if violated, 1952 -54, p 29; use of highways by road gradersand road rollers, 1958 -60, p 64.

483.518

CASE CITATIONS: Sorensen v. Tillamook County, ( 1970) 255 Or 381, 467 P2d 433.

483.520 to 483.528

ATTY. GEN. OPINIONS: Overweight load permit as voidedif violated, 1952 -54, p 29.

494

1x11u

SUPERSEDED

T.:k14f' il

CASE CITATIONS: Morris v. Duby, ( 1927) 274 US 135, 47S Ct 548, 71 L Ed 966; State v. Pyle, ( 1961) 226 Or 485, 360


229 Or 21, 366 P2d 166; Sorensen v. Tillamook County, (1970) 255 Or 381, 467 P2d 433.

ATTY. GEN. OPINIONS: Authority of county to issue blanket permits for log trucks exceeding certain statutory loadlimitations, 1948 -50, p 232; authority of county court toexact fee for permit to haul logs, piling or poles over countyroads, 1950 -52, p 96; authority of county court to regulatedisposition of logs left upon county road, 1950 -52, p 142; power of county court to require permit or indemnity bondfor log trucks, 1950 -52, p 292; authority of county court toenter contract for damage reimbursement by permittee inlieu of requiring him to furnish indemnity bond, 1950 -52, p 336; granting of permits as within exclusive discretionof county court, 1952 -54, p 50; use of highways by roadgraders and road rollers, 1958 -60, p 64; continuous operationof vehicles, 1958 -60, p 148; as not defining logs, poles orpiling, 1960 -62, p 71; canceling privilege to haul logs becauseof hauling on weekends, 1964 -66, p 112.

LAW REVIEW CITATIONS: 2 WLJ 352 -357

483.522

CASE CITATIONS: State v. Pyle, ( 1961) 226 Or 485, 360

P2d 626.

ATTY. GEN. OPINIONS: Authority of county court to entercontract for damage reimbursement by permittee in lieu ofrequiring him to furnish indemnity bond, 1950 -52, p 336; canceling privilege to haul logs for hauling on weekends, 1964 -66, p 112.

483.524

CASE CITATIONS: State v. Pyle, ( 1961) 226 Or 485, 360P2d 626; Mitchell Bros. Truck Lines v. Hill, ( 1961) 227 Or

474, 363 P2d 49; Sorensen v. Tillamook County, ( 1970) 255Or 381, 467 P2d 433.

ATTY. GEN. OPINIONS: Determining gross weight limitations, 1948 -50 p 303; authority of county court to regulatedisposition of logs left upon county road, 1950 -52, p 142; authority of county court to grant written permits for theoperation over county roads of vehicles exceeding the standard width and weight limits and to contract with operator

for the maintenance of road; 1952 -54, p 50; Tournapull asexceeding these limitations, 1956 -58, p 10; authorized insurers, 1956 -58, p 41; determining eligibility of vehicles forcontinuous operation permits, 1958 -60, p 148; as not defininglogs, poles or piling, 1960 -62, p 71.


CASE CITATIONS: State v. Pyle, ( 1961) 226 Or 485, 360P2d 626; Mitchell Bros. Truck Lines v. Hill, ( 1961) 227 Or

474, 363 P2d 49.

ATTY. GEN. OPINIONS: Illegal use of highway as becom- ing legal if pursuant to this section, 1956 -58, p 64.

483.526


483.602

483.528

CASE CITATIONS: State v. O.K. Transfer Co., ( 1958) 215

Or 8, 330 P2d 510; State v. Pyle, ( 1961) 226 Or 485, 360 P2d

626; Roy L. Houck & Sons v. State Tax Comm., ( 1961) 229

Or 21, 366 P2d 166.

ATTY. GEN. OPINIONS: Power of county court to requirepermit or indemnity bond for log trucks, 1950 -52, p 292; requiring indemnity insurance or bond of applicant as discretionary, 1950 -52, p 337; computation of penalty for violation of special permit issued under this section, 1952 -54, p29; authorized insurers, 1956 -58, p 41; continuous operationof vehicles, 1958 -60, p 148.

LAW REVIEW CITATIONS: 2 WU 352 -357.

483.530

ATTY. GEN. OPINIONS: Authority of county court to entercontract for damage reimbursement by permittee in lieu ofrequiring him to furnish indemnity bond, 1950 -52, p 336.

483.532

CASE CITATIONS: Schoenborn v. Broderick, ( 1954) 202 Or

634, 277 P2d 287.

ATTY. GEN. OPINIONS: Authority of county court to regulate disposition of logs left upon county road, 1950 -52, p142; issuing permits and requiring bonds by county courtfor logging trucks using county roads, 1950 -52, p 292.

483.538

NOTES OF DECISIONS

This section is violated when there is so much of the

person, package or encumbrance on part of the lap of thedriver as to prevent the free and unhampered operation ofthe motor vehicle. Clement v. Cummings, (1957) 212 Or 161,

317 P2d 579.

rC.'kf, -aril

CASE CITATIONS: Marchant v. Clark, ( 1960) 225 Or 273,

357 P2d 541.

483.542

NOTES OF DECISIONS

Violation of an ordinance prohibiting truck traffic on astreet could not be regarded as negligence unless the ordi-

nance was designed as a protection against injuries bytrucks. Parker v. Holmes, ( 1965) 241 Or 270, 405 P2d 619.

FURTHER CITATIONS: Marchant v. Clark, ( 1960) 225 Or273, 357 P2d 541.

483.602

NOTES OF DECISIONS

Violation of each subsection constitutes a separate offense. State v. Reynolds, ( 1961) 229 Or 167, 366 P2d 524.

An allegation that defendant " wilfully and unlawfully" failed to stop was adequate to charge defendant withknowledge of the accident. State v. Hulsey, ( 1970) 3 Or App64, 471 P2d 812.

FURTHER CITATIONS: Marshall v. Mullin, ( 1958) 212 Or421, 320 P2d 258; Marchant v. Clark, ( 1960) 225 Or 273, 357 P2d 541; State v. Allen, ( 1967) 248 Or 376, 434 PM 740.

485

SUPERSEDED

483.604

ATTY. GEN. OPINIONS: Proceedings not required to use

the uniform traffic citation and complaint, 1960 -62, p 267.

488.604

CASE CITATIONS: State v. Allen, ( 1967) 248 Or 376, 434P2d 740.

483.606

ATTY. GEN. OPINIONS: Driver " involved" in accident, though his vehicle was not in physical contact, as subject

to the safety responsibility law, 1952 -54, p 57.

483.610

CASE CITATIONS: Henry v. Condit, ( 1936) 152 Or 348, 53P2d 722, 103 ALR 131.

ATTY. GEN. OPINIONS: Information voluntarily submittedregarding qualifications of motor vehicle operators as notopen to public inspection, 1950 -52, p 104.


483.620

ATTY. GEN. OPINIONS: Procedure for automobile associ-

ation to obtain release of security for bail deposit in StateTreasury, 1940 -42, p 500; insolvency of insurance companieswith security deposits to back up automobile membershipcards as bail, 1958 -60, p 27.

483.634 to 483.646

NOTES OF DECISIONS

Admission of evidence of result of chemical tests did not

violate Fourth or Fifth Amendment rights when consent

was given while intoxicated. State v. Fogle, ( 1969) 254 Or

268, 459 P2d 873.

FURTHER CITATIONS: Heer v. Dept. of Motor Vehicles, 1969) 252 Or 455, 450 P2d 533; Burbage v. Dept. of Motor

Vehicles, ( 1969) 252 Or 486, 450 P2d 775; Stratikos v. Dept.

of Motor Vehicles, ( 1970) 4 Or App 313, 477 P2d 237, 478P2d 654, Sup Ct review denied.

483.634

NOTES OF DECISIONS

1. Constitutionality2. Assent or refusal of test

3. Reasonable grounds for arrest

L ConstitutionalityThe procedure followed under this section was constitu-

tional. Heer v. Dept. of Motor Vehicles, ( 1969) 252 Or 455, 450 P2d 533.

This section does not violate federal Fourth and FifthAmendment rights or due process. State v. Fogle, ( 1969)

254 Or 268, 459 P2d 873. This section was not unconstitutional as a coercive denial

of defendant' s right to counsel. Warner v. Motor Vehicles

Div., ( 1971) 5 Or App 612, 485 P2d 1248.

2. Assent or-refusal of test

Anything substantially short of an unqualified, unequi- vocal assent to an officer's request that the arrested mo-

torist take the test constitutes a refusal to do so. Stratikos

v. Dept. of Motor Vehicles, ( 1970) 4 Or App 313, 477 P2d237, 478 P2d 654, Sup Ct review denied; Johnson v. Dept. of -Motor Vehicles, ( 1971) 5 Or App 617, 485 P2d 1258.

Submission to the test need not be a completely knowingand understanding submission. State v. Fogle, ( 1969) 254Or 268, 459 P2d 873.

The division need not prove a specific intent on the part

of the driver to refuse the test. Warner v. Motor VehiclesDiv., ( 1971) 5 Or App 612, 485 P2d 1248.

3. Reasonable grounds for arrest

Reasonable grounds are the same as probable cause for

arrest, which does not require the same quantum of evi-

dence as is required to support a conviction. Thorp v. Dept. of Motor Vehicles; ( 1971) 4 Or App 552, 480 P2d 716.

The officer had reasonable grounds to believe that peti-

tioner had been driving while under the influence of intoxicating liquor. Andros v. Dept. of Motor Vehicles, ( 1971) 5Or App 418, 485 P2d 635.

FURTHER CITATIONS: Garcia v. Dept. of Motor Vehicles,

1969) 253 Or 505, 456 P2d 85; Burbage v. Dept. of MotorVehicles, ( 1969) 252 Or 486, 450 P2d 775; Dorr v. Dept. of

Motor Vehicles, ( 1971) 5 Or App 170; 483 P2d 105.

ATTY. GEN: OPINIONS: Duty of officer to request a test, 1964- 66, p 258.

483.636

CASE CITATIONS: Burbage v. Dept. of Motor Vehicles, 1969) 252 Or 486, 450 P2d 775.

483.638

NOTES OF DECISIONS

Demand by defendant that his attorney be present beforeadministering of breathalyzer test constitutes refusal. Stra- tikos v. Dept. of Motor Vehicles, ( 1971) 4 Or App 313, 477P2d 237, 478 P2d 654.

FURTHER CITATIONS: State v. Brady, ( 1960) 223 Or 433, 354 P2d 811; Burbage v. Dept. of Motor Vehicles, ( 1969) 252Or 486, 450 P2d 775; Dorr v. Dept. of Motor Vehicles, ( 1971) 5 Or App 170, 483 P2d 105.


483.640

CASE CITATIONS: Burbage v. Dept. of Motor Vehicles, 1969) 252 Or 486, 450 P2d 775.

483.642

CASE CITATIONS: Thorp v. Dept. of Motor Vehicles, ( 1971) 4 Or App 552, 480 P2d 716.

483.644

NOTES OF DECISIONSStrict compliance with this statute must be shown as a

prerequisite to the introduction of the results of the test. State v. Fogle, ( 1969) 254 Or 268, 459 P2d 873.

State has burden of proving that the equipment used inthe test was tested and certified in compliance with this

section. Id.

The exhibit offered to prove the machine had been tested

and found accurate was properly received. State v. Wood- ward, ( 1969) 1 Or App 338, 462 P2d 685.

ATTY. GEN. OPINIONS: Power of Emergency Board toauthorize expenditure of Highway Fund by State Board ofHealth and State Police, 1964 -66, p 277.

486

l u

SUPERSEDED

E: 14 t:i7

CASE CITATIONS: State v. Wojahn, ( 1955) 204 Or 84, 282P2d 675; Anderson v. Finzel, ( 1955) 204 Or 162, 282 P2d 358; State v. Davis, ( 1956) 207 Or 525, 296 P2d 240; State v.

Wilcox, ( 1959) 216 Or 110, 337 P2d 797; Marchant v. Clark, 1960) 225 Or 273, 357 P2d 541; State v. Allen, ( 1967) 248

Or 376, 434 P2d 740.

ATTY. GEN. OPINIONS:.Requirement that complaint con-

tain allegation of speed in instances involving violation ofthis section, 1948 -50, p 417; distribution of collected fines, 1958 -60, p 129.

LAW REVIEW CITATIONS: 1 WU 503 -513, 654 -657, 658- 661.

483.991

ATTY. GEN. OPINIONS: Distribution of collected fines,

1958 -60, p 129.


483.992

NOTES OF DECISIONS

1. Subsection ( 1)

A traffic complaint is effective even though defendant

might have to make some reasonable inquiry in order toknow what offense is charged. State v. Waggoner, ( 1961) 228 Or 334, 365 P2d 291.

Driving on the left side of a winding road at 35 to 40miles an hour with a range of vision of approaching carsof about 50 or 60 feet while racing the driver of an automobile upon the right side of the highway was sufficient evidence from which the jury might find or reasonably inferwilful or wanton disregard of the rights or safety of others. Younger v. Gallagher, ( 1933) 145 Or 63, 26 P2d 783.

2. Subsection ( 2)

This subsection abrogates and annuls the distinction be= tween the meaning of the word " intoxicated" and thephrase, " under the influence of intoxicating liquor," andin view of the law of involuntary manslaughter renders thetwo expressions synonymous. State v. Boag, ( 1936) 154 Or354, 59 P2d 396.

Driving a motor car while intoxicated is malum in se, and homicide resulting thereby is not excusable on groundof misadventure. Id.

Proof of the failure to use due care and circumspection

in the operation of a motor vehicle was unnecessary, whenthe charge is that of killing a human being in the operationof a vehicle upon the highway while the driver thereof isunder the influence of intoxicating liquor. Id.

No intricate definition of the word " intoxication" is nec-

essary to acquaint a jury with its import. State v. Carver, 1960) 222 Or 270, 352 P2d 349.

The test in subsection ( 2) is whether the motorist has

imbibed to the extent that his mental and physical condition

is deleteriously affected. State v. Robinson, ( 1963) 235 Or524, 385 P2d 754.

Award of punitive damages is proper as a deterrent to

the conduct proscribed by this subsection. Dorn v. Wil- marth, ( 1969) 254 Or 236, 458 P2d 942.

Evidence observed by the police officer corroborated

483.996

defendant' s admission that he had been driving on thehighway, which was one element of the charge. State v. Brown, ( 1971) 5 Or App 412, 485 P2d 444.

FURTHER CITATIONS: Meyer v. Nedry, ( 1938) 159 Or 62, 78 P2d 339; Babcock v. Gray, ( 1940) 165 Or 398, 107 P2d846; Cowgill v. Boock, ( 1950) 189 Or 282, 218 P2d 445, 19

ALR2d 405; Howe v. Holger, ( 1956) 206 Or 293, 291 P2d 731; Falls v. Mortensen, ( 1956) 207 Or 130, 295 P2d 182; State

v. Davis, ( 1956) 207 Or 525, 296 P2d 240; Perdue v. Pac. Tel. & Tel. Co., ( 1958) 213 Or 596, 326 P2d 1026; State v.

Wilcox, (1959) 216 Or 110, 337 P2d 797; State v. Brady, (1960) 223 Or 433, 354 P2d 811; Marchant v. Clark, ( 1960) 225 Or

273, 357 P2d 541; State v. Dodson, ( 1961) 226 Or 458, 360

P2d 782; Stites v. Morgan, ( 1961) 229 Or 116, 366 P2d 324;

State v. Betts, ( 1963) 235 Or •127, 384 P2d 198; State v.

Commedore, ( 1964) 239 Or 82, 396 P2d 216; State v. Williams,

1965) 241 Or 207, 405 P2d 371; State v. Mayes, ( 1966) 245Or 179, 421 P2d 385; State v. Montieth, ( 1966) 247 Or 43,

417 P2d 1012; State v. Allen, ( 1967) 248' Or 376, 434 P2d

740; Grayson v. State, ( 1968) 249 Or 92, 436 P2d 261; State v. Taylor, (1968) 249 Or 268, 437 P2d 853; Heer v. Dept.

of Motor Vehicles, ( 1969) 252 Or 455, 450 P2d 533; Burbage

v. Dept. of Motor Vehicles, ( 1969) 252 Or 486, 450 P2d 775;

State v. Evans, ( 1969) 1 Or App 282, 460 P2d 1021, Sup Ctreview denied; State v. Woodward, ( 1969) 1 Or App 338, 462 P2d 685; City of Eugene v. Reed, ( 1970) 2 Or App 190, 464 P2d 842, Sup Ct review denied; State v. Smith, ( 1970) 4 Or App 261, 476 P2d 802; Stratikos v. Dept. of MotorVehicles, ( 1971) 4 Or App 313, 477 P2d 237, 478 P2d 654.

ATTY. GEN. OPINIONS: Speed limits as governed only byreasonableness and prudence, 1930 -32, p 299; driving inviolation of dim -out regulations as reckless driving, 1942 -44, p 75; authority of Secretary of State to suspend license forviolation of Washington' s reckless driving statute, 1950 -52, p 81; power of court to suspend a fine, 1952 -54, p 166; reinstatement upon court recommendation of mandatorily

suspended license, 1952 -54, p 234; disposition of moneywhen undertaking for bail is given and forfeited for violation of this section, 1954 -56, p 142; division of fines collectedin Portland municipal court for violation of Motor Vehicle

Code, 1964 -66, p 404; construing " speed law" used in ORS483.048, ( 1968) Vol 34, p 347.

LAW REVIEW CITATIONS: 39 OLR 162 -164; 1 WLJ 663;

6 WU 537 -540.

483.994 to 483.998

ATTY. GEN. OPINIONS: Road located on railroad right -

of -way as a " highway," 1960 -62, p 101.

483.994

ATTY. GEN. OPINIONS: Constitutionality of this section, 1950 -52, p 250; power of court to suspend a fine, 1952 -54, p 166.

21k


LAW REVIEW CITATIONS: 2 WW 352 -357.

487

SUPERSEDED

Chapter 484

Traffic Offense Procedures;

Traffic Safety

Chapter 484

NOTES OF DECISIONS

The purpose of this chapter is to employ a single uniformtraffic citation throughout the state. State v. Powell, ( 1962)

233 Or 71, 377 P2d 7.

FURTHER CITATIONS: Silva v. State, ( 1966) 243 Or 187,

412 P2d 375.

ATTY. GEN. OPINIONS: Traffic offense authority of statecourts, 1966 -68, p 420; construing police officer as in ORSchapter 483, 1966 -68, p 452; authority of traffic courts tocompel reappearance of anrestees, ( 1968) Vol 34, p 290.


484.010

CASE CITATIONS: State v. Roderick, ( 1966) 243 Or 105,

412 P2d 17; State v. Allen, ( 1967) 248 Or 376, 434 P2d 470; State v. Jones, ( 1967) 248 Or 428, 435 P2d 317; State v.

Brown, ( 1971) 5 Or App 412, 485 P2d 444.

ATTY. GEN. OPINIONS: Traffic offense as includingoperation of vehicle exceeding weight and size limitations, 1956 -58, p 10; formation of Traffic Court Rules Committee, 1958 -60, p 306; county fund to which collections are credited, 1964 -66, p 386; division of fines collected in Portland municipal court for violation of Motor Vehicle Code, 1964 -66,

p 404; brand inspector as a police officer, 1966 -68, p 65; impoundment procedure, 1966 -68, pp 420, 461; office of municipal judge as office of this state, ( 1970) Vol 35, p 252.

484.020



484.030

CASE CITATIONS: Grayson v. State, ( 1968) 249 Or 92, 436P2d 261.

ATTY. GEN. OPINIONS: Official qualified to be traffic court

violations clerk, 1964 -66, p 127; division of fines collectedin Portland municipal court for violation of Motor Vehicle

Code, 1964 -66, p 404; impoundment procedure, 1966 -68, p420; office of municipal judge as office of this state, ( 1970)

Vol 35, p 252.


484. 100


P2d 740.

ATTY. GEN. OPINIONS: Arrest as prerequisite to issuance

of citation, 1956 -58, p 62; sheriff's authority to use radar, 1966 -68, p 452; compelling appearance of accused, ( 1968) Vol 34, p 290.

484.105

ATTY: GEN. OPINIONS: Compelling appearance of accused, ( 1968) Vol 34, p 290.

484. 120


P2d 740.


of citation, 1956 -58, p 62; insolvency of insurance companieswith security deposits to back up automobile membershipcards as bail, 1958 -60, p 27; compelling appearance of accused, ( 1968) Vol 34, p 290.

484. 130

CASE CITATIONS: State ex rel. Hemphill v. Rafferty, (1967) 247 Or 475, 430 P2d 1017.

ATTY. GEN. OPINIONS: Procedure where traffic officer

finds overloaded truck upon highway, 1920 -22, p 534; application of section to foreign corporation licensed to do business in Oregon to same extent as a domestic corporation,

1926 -28, p 598; procedure for automobile association toobtain release of security for bail deposit in State Treasury, 1940 -42, p 500; insolvency of insurance companies withsecurity deposits to back up automobile membership cardsas bail, 1958 -60, p 27; compelling appearance of accused, 1968) Vol 34, p 290.

484. 150

NOTES OF DECISIONS

State's failure to prove all items mentioned is not a fatal

variance. State v. Waggoner, ( 1961) 228 Or 334, 365 P2d291.

Use of a complaint rather than a uniform traffic citation

is not a defect such as can be reached by demurrer. Statev. Powell, ( 1962) 233 Or 71, 377 P2d 7, cert. denied, 84 SCt 176, 11 L Ed 2d 126.

As used in this section, " before plea" meant before plea

made in district court, not before plea made in circuit court.

State v. Rush, ( 1969) 253 Or 560, 456 P2d 496.

FURTHER CITATIONS: Kirkendall v. Korseberg, (1967) 247Or 75, 427 P2d 418; State ex rel. Hemphill v. Rafferty, (1967) 247 Or 475, 430 P2d 1017; State v. Allen, ( 1967) 248 Or 376, 434 P2d 740.

488


of citation, 1956 -58, p 62; collection of assessment for policetraining with bail deposit, ( 1971) Vol 35, p 740.

SUPERSEDED

r

u484. 155

ATTY. GEN. OPINIONS: Requirement that complaint be

verified, 1960 -62, p 267.

484. 170

NOTES OF DECISIONS

A traffic complaint is effective even though defendant

might have to make some reasonable inquiry in order toknow what offense is charged. State v. Waggoner, ( 1961)

228 Or 334, 365 P2d 291; City of Oakland v. Moore, ( 1969) 1 Or App 80, 457 P2d 659, Sup Ct review denied.

Use of a complaint rather than a uniform traffic citation

is not a defect such as can be reached by demurrer. Statev. Powell, ( 1962) 233 Or 71, 377 P2d 7, cert. denied, 84 SCt 176, 11 L Ed 2d 126.

The Oregon uniform traffic citation and complaint is not

controlled by the statutes which apply to indictments. Statev. Rush, ( 1969) 253 Or 560, 456 P2d 496.



484.190

CASE CITATIONS: Kirkendall v. Korseberg, ( 1967) 247 Or75, 427 P2d 418.

ATTY. GEN. OPINIONS: Compelling appearance of accused, ( 1968) Vol 34, p 290.

484.200

NOTES OF DECISIONS

A judgment forfeiting bail in a traffic case is not theequivalent of a judgment of conviction. Kirkendall v.

Korseberg, ( 1967) 247 Or 75, 427 P2d 418.

ATTY. GEN. OPINIONS: Compelling appearance of accused, ( 1968) Vol 34, p 290.

484.220

CASE CITATIONS: Silva v. State, ( 1966) 243 Or 187, 412P2d 375.

484.310

484.222

ATTY. GEN. OPINIONS: Impoundment procedure, 1966 -68,

pp 420, 461; term of impoundment of leased vehicle, 1966 -68, p 437.

484.230

ATTY. GEN. OPINIONS: Compelling appearance of accused, enforcing payment of fine, ( 1968) Vol 34, p 290.

484.240

ATTY. GEN. OPINIONS: Service by State Police of municipal court warrant on nonresident of city, 1948 -50, p 291.

484.250

ATTY. GEN. OPINIONS: Application of general law, 1922-

24, p 518; disposition and distribution of fines and moneyscollected in regard to violations prosecuted by the state incity courts, 1934 -36, pp 548, 733, 1936 -38, p 263; authorityof justice of the peace to deduct costs of money orders orbank checks from fines or other money required to be paidto the State Treasurer, 1936 -38, p 137; deduction of courtcosts assessed and' collected for violation of motor vehicle

laws, 1936 -38, p 703; payment of one -half the amount offines collected, less unpaid costs, to state in cases appealed

from justice to circuit courts, 1940 -42, p 46; fines disposedof according to state law, 1940 -42, p 144; fine collected bycircuit court on appeal from municipal court for violation

of city ordinance as payable to city treasurer, 1940 -42, p281; state as entitled to half of fines and forfeitures after

payment of costs, where arrest was by state officer uponcomplaint of a private citizen, 194042, p 571; state shareof fine under prior similar statute, 1958 -60, p 129; effect withregard to date of arrest, complaint and conviction, 1960 -62,

p 13; county fund to which collections are credited, 1964 -66, p 386; division of fines collected in Portland municipal courtfor violation of Motojr Vehicle Code, 1964 -66, p 404.


484.310

ATTY. GEN. OPINIONS: Construing ' other appropriateofficial," 1964 -66, p 127.

489

SUPERSEDED

Chapter 485

School Busses; Vehicles Used to Transport Workers

485.020

NOTES OF DECISIONS

This section refers only to school children who are crossing a street or highway to board or to leave a school busfor the purpose of attending school or reaching their homes, Burke v. Olson, ( 1956) 206 Or 149, 291 P2d 759; Johnsonv. Hansen, ( 1964) 237 Or 1, 389 P2d 330, 390 P2d 611.

This section does not conflict with ORS 483.362. McLainv. Lafferty, ( 1971) 257 Or 553, 480 P2d 430.

FURTHER CITATIONS: Coburn v. Miller, (1967) 248 Or 47,

432 P2d 314.

485.030

ATTY. GEN. OPINIONS: Duty to obliterate school bus

markings when vehicle not used for school purposes, 1948-

50, p 310.

485.050

NOTES OF DECISIONS

An administrative agency cannot authorize, by regulation, the performance of an act which is prohibited bystatute. McLain v. Lafferty, ( 1971) 257 Or 553, 480 P2d 430.

A regulation purporting to authorize school bus driversto stop on highways in a manner contrary to statute wasinvalid. Id.

485.990

ATTY. GEN. OPINIONS: Disposition of money acquiredfrom fine for violation of school traffic laws, 1948 -50, p 357.

490

u

SUPERSEDED

Chapter 486

Financial Responsibility Law

Chapter 486

NOTES OF DECISIONS

This chapter applies only to policies issued as proof offinancial responsibility and largely abolishes any insurancepolicy defenses when an action is brought by an injuredparty against an insurer. State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Exch., ( 1964) 238 Or 285, 387 P2d 825, 393

P2d 768.

FURTHER CITATIONS: Ohm v. Fireman' s Fund Indem.

Co., ( 1957) 211 Or 596, 317 P2d 575; Springstead v. Lincoln

Cas. Ins. Co., ( 1962) 232 Or 179, 374 P2d 751; McClendon

v. Kenin, ( 1963) 235 Or 588, 385 P2d 615; Peterson v. State

Farm Ins. Co., ( 1964) 238 Or 106, 393 P2d 651; Hartford Acc.

Indem. Co. v. Kaiser, ( 1965) 242 Or 123, 407 P2d 899;

Kesler v. Dept. of Pub. Safety, ( 1962) 369 US 153, 82 S Ct807, 7 L Ed 2d 641; Mayflower Ins. Exch. v. Gilmont, ( 1960)

280 F2d 13.

ATTY. GEN. OPINIONS: Disposition of funds received

under this chapter, 1960 -62, p 338.

LAW REVIEW CITATIONS: 44 OLR 78; 48 OLR 74

486.011

CASE CITATIONS: Springstead v. Lincoln Cas. Ins. Co.,

1962) 232 Or 179, 374 P2d 751; Peterson v. State Farm Ins.

Co., ( 1964) 238 Or 106, 393 P2d 651; State Farm Mut. Auto.

Ins. Co. v. Farmers Ins. Exch., ( 1964) 238 Or 285, 387 P2d

825, 393 P2d 768; Schaeffer v. Mill Owners Ins. Co., ( 1965)

242 Or 150, 407 P2d 614; Ausman v. Eagle Fire Ins. Co.,

1968) 250 Or 523, 444 P2d 18.

ATTY. GEN. OPINIONS: Requirement that carrier file cer-

tificate of policy issued, 1948 -50, p 55; applicability to stateand city employes, 1950 -52, p 248; authority of Secretaryof State to accept settlement agreement as exemption from

the requirements of this chapter, 1954 -56, p 101; uninsuredmotorist clause requirement for insurance on motorcycles

and motor scooters, 1960 -62, p 182.

LAW REVIEW CITATIONS: 48 OLR 85; 1 WLJ 461, 648.

486.021

CASE CITATIONS: Hartford Acc. & Indem. Co. v. Kaiser,

1965) 242 Or 123, 407 P2d 899.

LAW REVIEW CITATIONS: 40 OLR 351; 43 OLR 257; 1WLJ 540-547, 648.

486.041

LAW REVIEW CITATIONS: 1 WU 648.

tip 1111j.l

ATTY. GEN. OPINIONS: Information voluntarily submittedregarding qualifications of certain drivers as not open topublic inspection, 1950 -52, p 104.

486. 106

ATTY. GEN. OPINIONS: Driver as " involved" in accident

even though his vehicle was never in actual physical con-

tact with other objects, 1952 -54, p 57.

486.211

CASE CITATIONS: Perez v. Campbell, ( 1971) 402 US 666,

91 S Ct 1704, 29 L Ed 2d 233.

ATTY. GEN. OPINIONS: Driver as " involved" in accident

even though his vehicle was never in actual physical con-

tact with other objects, 1952 -54, p 57.

486.291

CASE CITATIONS: Springstead v. Lincoln Cas. Ins. Co., 1962) 232 Or 179, 374 P2d 751.

486.411

CASE CITATIONS: Ohm v. Fireman' s Fund Indem. Co., 1957) 211 Or 596, 317 P2d 575; Springstead v. Lincoln Cas.

Ins. Co., ( 1962) 232 Or 179, 374 P2d 751; Hartford Acc. &

Indem. Co. v. Kaiser, ( 1965) 242 Or 123, 407 P2d 899.

486.416

CASE CITATIONS: Ohm v. Fireman's Fund Indem. Co., 1957) 211 Or 596, 317 P2d 575.

48SA26

CASE CITATIONS: Springstead v. Lincoln Cas. Ins. Co.,

1962) 232 Or 179, 374 P2d 751.

486.506 to 486.561

CASE CITATIONS: Peterson v. State Farm Mut. Auto. Ins.

Co., ( 1964) 238 Or 106, 393 P2d 651.

486.506

CASE CITATIONS: Ohm v. Fireman' s Fund Indem. Co.,

1957) 211 Or 596, 317 P2d 575; Springstead v. Lincoln Cas. Ins. Co., ( 1962) 232 Or 179, 374 P2d 751.

ATTY. GEN. OPINIONS: Requirement that carrier rile cer-

tificate of policy issued, 1948 -50, p 55.

491


SUPERSEDED

486.511

486.511

NOTES OF DECISIONS

The department may accept a certificate if it protects theperson either as an owner or as an operator only. Spring - stead v. Lincoln Cas. Ins. Co., ( 1962) 232 Or 179, 374 P2d

751.

FURTHER CITATIONS: Ohm v. Fireman' s Fund Indem.

Co., ( 1957) 211 Or 596, 317 P2d 575.


21i.-VU

CASE CITATIONS: Springstead v.. Lincoln Cas. Ins. Co., 1962) 232 Or 179, 374 P2d 751.

486.551

CASE CITATIONS: Ohm v. Fireman' s Fund Indem. Co., 1957) 211 Or 596, 317 P2d 575; Mayflower Ins. Exch. v.

Gilmont, ( 1960) 280 172d 13.

LAW REVIEW CITATIONS: 40 OLR 351, 357, 358; 44 OLR89.

486.561

CASE CITATIONS: Ohm v. Fireman' s Fund Indem. Co., 1957) 211 Or 596, 317 P2d 575.

486.991

CASE CITATIONS: Ohm v. Fireman' s Fund Indem. Co., 1957) 211 Or 596, 317 P2d 575.

492

l u

SUPERSEDED

Chapter 488

Boats and Boating

Chapter 488

ATTY. GEN. OPINIONS: Authority of State Marine Boardto give legal advice to peace officers regarding boating laws, 1958 -60, p 396; territorial boundaries of board's jurisdiction, 1960 -62, p 227; rule- making power of board, 1964 -66, p 72, 1966 -68, p 632; determining fiscal year of board, 1964 -66, p 352; exclusive jurisdiction of board to regulate boats, 1964 -66, p 383; construing " boating facility," 1964 -66, p 410; authority of board to make refunds or allow credits, 1966 -68, p 581; registration requirements for charter vessels as notcontained in this chapter, ( 1971) Vol 35, p 533.

488.011

ATTY. GEN. OPINIONS: Regulations relating to operationof boats, 1964 -66, p 72; board regulations applicable onBureau of Reclamation reservoirs, ( 1971) Vol 35, p 440.

488.021

ATTY. GEN. OPINIONS: Jurisdiction over boating on LakeOswego, 1958 -60, p 296.

488.023

ATTY. GEN. OPINIONS: Speed limits in port districts,

1960 -62, p 227.

488.028

ATTY. GEN. OPINIONS: Authority to regulate boats incounty parks, 1960 -62, p 227.

48& 031

ATTY. GEN. OPINIONS: Adequacy of preservers for passenger-carrying vessels, 1964-66, p 306.

48& 041

ATTY. GEN. OPINIONS: Requirements for safety devices, 196466, p 306.

488.052

ATTY. GEN. OPINIONS: Proof of testing cutouts and openexhausts, 1960 -62, p 273; requirements for safety devices, 1964 -66, p 306.

498.061


48& 065

ATTY. GEN. OPINIONS: Requirements for safety devices, 1964 -66, p 306.

488.071


488.080


488.090


488.094

ATTY. GEN. OPINIONS: Authority of board to require useof specific type of preserver, 1964 -66, p 306.

48& 102

ATTY. GEN. OPINIONS: Testing and racing zones, 1960 -62, p 177; defining " populated beaches," proof of testing cutouts and open exhausts, 1960 -62, p 273; testing boats outsideof designated areas, 1966.68, p 632.

488. 108

ATTY. GEN. OPINIONS: Testing and racing zones, 1960 -62, p 177.

488. 120

ATTY. GEN. OPINIONS: Special regulations that vary fromstatute, 1960 -62, p 423.

48& 144

ATTY. GEN. OPINIONS: Applicability to water ski vehicles, 1964 -66, p 136.

F:T: 3P* - T11

ATTY. GEN. OPINIONS: Collection of assessment for police

training with bail deposit, ( 1971) Vol 35, p 740.

488.600

ATTY. GEN. OPINIONS: Testing and racing zones, 1960 -62, p 177; authority to regulate boats in county parks, speedlimits in port districts, 1960 -62, p 227; violations of StateMarine Board regulations, 1960 -62, p 232; special regulationsthat vary from statute, 1960 -62, p 423; authority of boardto regulate scuba divers, 1960 -62, p 424; conforming stateto federal regulations, 1962 -64, p 35; removal of barriersplaced by others, 1962 -64, p 387; authority of board to prohibit boats on some waters, 196466, p 72; authority to

493

SUPERSEDED

488.610

regulate boating on basis of size of lake, 1964 -66, p 335; division of authority between county court and board to

regulate boats, moorages and boating, 1964 -66, p 383; authority of board to adopt speed limit lower than statutorylimit, 1966 -68, p 36; testing boats outside of designatedareas, 1966 -68, p 632; board regulations applicable on Bureauof Reclamation reservoirs, ( 1971) Vol 35, p 440.

488.610

ATTY. GEN. OPINIONS: Authority of board to prohibitoperation of motor boats, 1964 -66, p 72.

488.620

ATTY. GEN. OPINIONS: Authority of board to adopt speedlimit lower than statutory limit, 1966 -68, p 36.

488.705 to 488.823

ATTY. GEN. OPINIONS: Applicability to boats owned andoperated by a port, 1960 -62, p 292; duty to register documented commercial fishing vessels operated as charterboats, ( 1971) Vol 35, p 533.

488.705

ATTY. GEN. OPINIONS: Exclusiveness of jurisdiction of

board to regulate boating on Lake Oswego, 1958 -60, p 296; authority to regulate boats in county parks, 1960 -62, p 227; evidence of ownership of boat, 1964 -66, p 318; duty to register passenger - carrying commercial fishing vessel for hiveduring summer, 1966 -68, p 31.

488.710

ATTY. GEN. OPINIONS: Exclusiveness of jurisdiction of

board to regulate boating on Lake Oswego, 1958 -60, p 296; division of authority between county court and board toregulate boats, moorages and boating, 1964 -66, p 383; authority of board to adopt speed limit lower than statutorylimit, 1966 -68, p 36; board regulations applicable on Bureauof Reclamation reservoirs, ( 1971) Vol 35, p 440.

488.715

ATTY. GEN. OPINIONS: Refund of fee paid under mistaken

belief that boat was within class covered, 1960 -62, p 11; portauthority boats, 1960 -62, p 292; duty to register passenger- carrying commercial fishing vessel for hire during summer, 1966 -68, p 31; duty to register documented commercialfishing vessels operated as charter boats, ( 1971) Vol 35, p533.

488.720

ATTY. GEN. OPINIONS: Refund of fee paid under mistaken

belief that boat was within class covered, 1960 -62, p 11; dutyto register passenger - carrying commercial fishing vesselcarrying passengers for hire during summer, 1966 -68, p 31.

488.732

ATTY. GEN. OPINIONS: Fees for boats sold after issuance

of 1962 or 1963 certificates, 1962 -64, p 327; boat licenses forIndians with treaty rights to fish, 1962 -64, p 361; construingeleemosynary," 1964 -66, p 176; duty to register documented

commercial fishing vessels operated as charter boats, ( 1971) Vol 35, p 533.

488.762

ATTY. GEN. OPINIONS: Other evidence of ownership, 1964 -66, p 318.

488.810

ATTY. GEN. OPINIONS: Board as prohibited from distrib-

uting to commercial firms lists of boat owners who havecertificates of numbers, 1958 -60, p 343; preparing list ofowners, 1960 -62, p 315.

488.815

ATTY. GEN. OPINIONS: Distribution of lists of names of

boat owners, 1958 -60, p 343.

488.830

ATTY. GEN. OPINIONS: Jurisdiction over boating on LakeOswego, 1958 -60, p 296; meaning of " advise," " assist" and

enforcement" under subsection ( 5), 1958 -60, p 396; authority to distribute notice of private publication, 1960 -62, p 413; authority of board to regulate scuba divers, 1960 -62, p 424; removal of barriers placed by others, 1962 -64, p 387; authority of board to prohibit. boats on some waters; 1964 -66, p72; division of authority between county court and boardto regulate boats, moorages and boating, 1964 -66, p 383; dam as an obstruction on Seven Mile Canal, 1966 -68, p 506; testing boats outside of designated areas, 1966 -68, p 632.

ATTY. GEN. OPINIONS: " Fiscal year" for applying 1965amendment, 1964 -66, p 352; construing "unencumbered" andboating facilities," 1964 -66, p 410.

488.990

ATTY. GEN. OPINIONS: Violations of State Marine Board

regulations, 1960 -62, p 232; applicability to vessels not required to register under this chapter, ( 1971) Vol 35, p 533.

494

is

SUPERSEDED

Chapter 491

Aeronautics Administration

491.060

ATTY. GEN. OPINIONS: Authority to expend funds forpromotion of air travel, 1938 -40, p 708; authority to accepttitle to realty for airport purposes and to contract with theUnited States for construction of airport, 194042, p 569.

491. 100


is

491. 110

ATTY. GEN. OPINIONS: Regulations relating to intrastateair travel as conflicting with federal regulations, 1936 -38, p 583.

491. 150

CASE CITATIONS: Sprague v. Fisher, ( 1948) 184 Or 1, 203

P2d 274.

495

SUPERSEDED

Chapter 492

Airports and Landing Fields

492.010

AM. GEN. OPINIONS: " Municipality" as includingcounty, 1956 -58, p 309.

I

492.050

CASE CITATIONS: State Hwy. Comm. v. Rawson, ( 1957) 210 Or 593, 312 -P2d 849.

AM. GEN. OPINIONS: Power of Board of Aeronautics

to spend funds for air strip in another state, 1948 -50, p 35.

492.060

CASE CITATIONS: State Hwy. Comm. v. Rawson, ( 1957) 210 Or 593, 312 P2d 849.

492.080

AM. GEN. OPINIONS: Power of board to expend funds

for development of airstrip in Washington, 1948 -50, p 35.

492.090

LAW REVIEW CITATIONS: 46 OLR 130, 134, 142.

492. 100


492. 110

ATTY. GEN. OPINIONS: Power to enter into contract forperiod of years without *cancellation clause, 1950 -52, p 111.

492.310

CASE CITATIONS: McClintock v. City of Roseburg, ( 1929) 127 Or 698, 273 P 331.

AM. GEN. OPINIONS: Authority of county to purchaseland for enlargement of city airport, 194042, p 317; counties' authority to exceed debt limitations for the purpose ofconstructing airport to be used to suppress invasion, 1940- 42, p 596; authority of county to cooperate with city inmaintenance of city airport, 1956 -58, p 309.

492.320

AM. GEN. OPINIONS: Regarding vote of the people toauthorize an indebtedness on issuance of bonds at the

biennial regular, general election, 1940 -42, p 317.

492.340


492AW

AM. GEN. OPINIONS: Airport hazards as a consideration

in the issuance of burning permits, ( 1970) Vol 35, p 160.

492.540

ATTY. GEN. OPINIONS: Airport hazards as a consideration


492.700

ATTY. GEN. OPINIONS: Airport hazards as a consideration


492.710


492.760


492.780


492.790


492.800


496

C

SUPERSEDED

Chapter 493

Aircraft Operation

493. 130 under a conditional sales contract was entitled to recover

it upon breach by the purchaser of provisions as to insur- NOTES OF DECISIONS ance and removal from state. Hicks v. Hill Aeronautical

Under a former similar statute, the seller of an airplane I Sch. ( 1930) 132 Or 545, 286 P 553.

497

SUPERSEDED

498

SUPERSEDED

Chapter 496

Application, Administration and Enforcementof Game and Fish Laws

Chapter 496

ATTY. GEN. OPINIONS: Regulation of stream flow, 1962-

64, p 117.

496.005

CASE CITATIONS: Maison v. Confederated Tribes of the

Umatilla Indian Reservation, ( 1963) 314 172d 169; Klamath

and Modoc Tribes v. Maison, ( 1964) 338 F2d 620.

ATTY. GEN. OPINIONS: Fishing by jerking hooks into fishas prohibited, 1920 -22, p 170; bear as a game animal, 1924 -26, p 432; persons employed to operate boats on lake, to takeout fishing parties as within the term " guide," 1924 -26, p600; sale of salmon caught with a hook and line below thelower dead line near the mouth of the Rogue River, 1926 -28,

p 324; open season for fishing for trout and steelheads inRogue River and its tributaries, 1926 -28, p 379; striped bassas a game fish, 1928- 30, pp 163, 468; surf fish as game fish, 1928 -30, p 256; eligibility of members of Armed Forces forhunting and angling licenses, 1942 -44, p 8; residence forhunting or angling license as actual rather than domiciliary, determination of the state of residence or nonresidence as

of the time the license is issued, holding a residence licenseand at the same time owning an automobile registered inan adjoining state, 1942 -44, p 389; nonapplication of salmon-steelhead tagging regulations to fish caught in the Pa- cific Ocean beyond three -mile limit, 1950 -52, p 244; resolvingdifferences in conflicting proposals of the fish and gamecommissions regarding salmon and steelhead, 1964 -66, p332.

496.010

ATTY. GEN. OPINIONS: Resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 1964 -66, p 332; poundage fee onsteelhead taken incidentally, ( 1969) Vol 34, p 743.

496.020

ATTY. GEN. OPINIONS: Trespassers on uninclosed lands

within Klamath Indian Reservation, 1954 -56, p 172; trusteemanaged property as an Indian Reservation, 1960 -62, p 313.

496.025

ATTY. GEN. OPINIONS: Poundage fee on steelhead taken

incidentally, ( 1969) Vol 34, p 743.

496. 130

ATTY. GEN. OPINIONS: Changing bag limits before " thenext stated meeting" when no emergency exists, 1948 -50, p 45; resolving differences in conflicting proposals of thefish and game commissions regarding salmon and steelhead, 1964 -66, p 332.

496. 135

ATTY. GEN. OPINIONS: Authority to determine personnelsalaries, ( 1970) Vol 34, p 977.

496. 145

ATTY. GEN. OPINIONS: Authority to contract for servicesof commercial fisherman to remove undesirable fish, 1950-

52, p 333.

496. 160

NOTES OF DECISIONS

By the enactment of statutes concerning hunting andtaking of game birds the state has pre - empted the area ofregulation by local ordinance. Fischer v. Miller, ( 1961) 228Or 54, 363 P2d 1109.

Limitations on states power to regulate Indian' s fishingrights applies to the type of gear which they may use asmuch as to the times at which they may fish. Sohappy v. Smith, ( 1969) 302 F Supp 899.

State may use police power only to the extent necessaryto prevent the exercise of treaty fishing rights in a mannerthat will imperil the continued existence of the fish re-

source. Id.

To prove necessity, the state must show there is a needto limit:the taking of fish and that the particular regulationsought to be imposed upon the exercise of the treaty rightis necessary to the accomplishment of the needed limitation. Id.

FURTHER CITATIONS: Confederated Tribes of the Uma-

tilla Indian Reservation v. Maison, ( 1967) 262 F Supp 871.

ATTY. GEN. OPINIONS: Establishment of a wild life dis-

play at the Olympic games, 1930 -32, p 559; transfer of fundsto State Police Department from the Game Protection Fund,

1932 -34, p 233; enjoining the polluting of streams by municipalities and industries as within the authority of the commission, 1934 -36, p 636; authority of commission to closeroad constructed by it to connect state property with publichighway despite permissive use of road by the public, 1942 -44, p 357; authority of commission to purchase a building in Portland for the storage of trucks and other equipment and for other purposes of the commission in the

discharge of its official functions without obtaining theconsent of the Board of Control, 1944 -46, p 358; authorityto pay commercial fisherman, under contract for his services, 75 percent of the proceeds from the sale of game fish,

1950 -52, p 333; nonapplication of salmon - steelhead taggingregulations to fish caught in the Pacific Ocean beyond

three -mile limit, 1950 -52, p 244; commission right to engagein farming, 1962 -64, p 37; regulation of stream flow, 1962 -64, p 117; control of grazing on game commission lands, 1962- 64, p 470; resolving differences in conflicting proposals ofthe fish and game commissions regarding salmon and steel - head, 196466, p 332; application to unbranded horses run-

499

SUPERSEDED

496.170

ning at large on unenclosed public lands, ( 1971) Vol 35, p the fish and game commissions regarding salmon and steel - 720. 1 head, 1964 -66, p 332.


496. 170

NOTES OF DECISIONS

By the enactment of statutes concerning hunting andtaking of game birds the state has pre - empted the area ofregulation by local ordinance. Fischer v. Miller, ( 1961) 228Or 54, 363 P2d 1109.

FURTHER CITATIONS: Confederated Tribes of the Uma-

tilla Indian Reservation v. Maison, ( 1967) 262 F Supp 871.

496. 175

ATTY. GEN. OPINIONS: Nonapplication of salm-

on-steelhead tagging regulations to fish caught in the Pa- cific Ocean beyond the three -mile limit, 1950 -52, p 244.

496.185

ATTY. GEN. OPINIONS: Resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 196466, p 332.

496. 190

ATTY. GEN. OPINIONS: Commission' s authority to ad- journ stated meetings and draft regulations later in the

month, 1940 -42, p 576; changing bag limits when no emergency exists, 1948 -50, p 45; application to unbranded horsesrunning at large on uninclosed public lands, ( 1971) Vol 35, p 720.

496. 195

ATTY. GEN. OPINIONS: Changing bag limits when noemergency exists, 1948 -50, p 45.

496.200

ATTY. GEN. OPINIONS: Changing bag limits when noemergency exists, 1948 -50, p 45.

496.215

ATTY. GEN. OPINIONS: Authority of commission to modify its regulations except at a stated meeting unless thereis an emergency, 1940 -42, p 576; the opening of reservesas subject to the statutory provisions for open seasons, 1942 -44, p 57; changing bag limits when no emergencyexists, 1948 -50, p 45.

496.235

ATTY. GEN. OPINIONS: Constitutionality of this section, 1950 -52, p 110. '

496.320

ATTY. GEN. OPINIONS: Commissign control of gross pro-

ceeds from sales by commercial fisherman serving commission under contract, 1950 -52, p 333.

496.325

AM. GEN. OPINIONS: Lease or sale by State Land Boardto game commission of overflow lands for boat slips, 1956-

58, p 32; resolving differences in conflicting proposals of

496.340

ATTY. GEN. OPINIONS: Authority of game commissionto pay counties sums of money in lieu of taxes for landacquired as feeding grounds for big game animals, 1952 -54, p 133.

496.405

ATTY. GEN. OPINIONS: Authority to contract for servicesof commercial fisherman to remove undesirable fish, 1950-

52, p 333; authority of game commission to pay countiessums of money in lieu of taxes for land acquired as feedinggrounds for big game animals, 1952 -54, p 133; commissionright to engage in farming, 1962 -64, p 37.

496.410

ATTY. GEN OPINIONS: Authority of commission to paycounties money in lieu of taxes for land acquired as feedinggrounds for game animals, 1952 -54, p 133; fixing price forreal property acquired from State Land Board, 1958 -60, p178.

496.505

ATTY. GEN. OPINIONS: Resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 196466, p 332.

496.510

ATTY. GEN. OPINIONS: Transfer of funds from the Game

Protection Fund account to the General Fund for the use

of the State Police Department, 1932 -34, p 233.

496.605

ATTY. GEN. OPINIONS: Enforcement of laws relating togame fish by the commission, 194648, p 541.

496.610

ATTY. GEN. OPINIONS: Members of United States Fish

and Wildlife Service as deputy game wardens, 1954 -56, p184.

496.615

ATTY. GEN. OPINIONS: Appointing members of UnitedStates Fish and Wildlife Service as deputy game wardens, 1954 -56, p 184.

496.645

ATTY. GEN. OPINIONS: Proposed legislation to share

game law enforcement with State Police, 1950 -52, p 120.

CT -IV,11

NOTES OF DECISIONS

This section was intended to warrant a reasonable search

of the places enumerated by a police officer. State v. Evans, 1933) 143 Or 603, 22 P2d 496.

In searching, without a search warrant, woods and hunting camps which he has reason to believe contain evidenceof a violation of the game law, a state police officer, game

division, was acting within the scope of his duties. Id. Where an officer had been informed by the forest ranger

500

C

J

SUPERSEDED

lu

of the entry into a forest reserve by the defendants, hadmet the defendants near their camp and noticed blood upontheir clothing, taking into consideration the season of theyear and all the circumstances, the jury was warranted inbelieving that the officer had reasonable grounds for making a search of the defendants' camp without a searchwarrant. Id.

FURTHER CITATIONS: State v. Krogness, ( 1963) 238 Or

135, 388 P2d 120; United States ex rel. Krogness v. Gladden,

1965) 242 F Supp 499.

ATTY. GEN. OPINIONS: Release of arrested person aswithin power of officer charged with enforcement of fish

and game laws, 1930 -32, p 440; going on private land tosalvage marooned game fish as within the authority of thegame commission, 1936 -38, p 350; authority of officers tosearch a private locker in a cold storage plant without a

search warrant, 1928 -30, p 76, 1936-39, p 578; game commission as enforcing certain laws on the authority of the statepolice, 1950 -52, p 120; advising person regarding game inspection, 1966 -68, p 54.

496.680

NOTES OF DECISIONS

Raising game without a permit as required by this sectiondoes not affect the title to the animals. Belanger v. Howard, 1941) 166 Or 408, 112 P2d 1022.

496.990

ATTY. GEN. OPINIONS: Custody of articles used in evidence in prosecution for violation of game laws, 1924 -26,

p 602; nonownership of apparatus by persons arrested asaffecting confiscation, 1934 -36, p 555; custody of rifles belonging to violators of fish and game laws, 193840, pp 99, 155; authority of justice of peace to order that confiscatedgame be given to charitable institution, 1938 -40, p 541; authority of game commission to confiscate minks and pelts

sold without breeder's permit, 193840, p 607.

496.715

ATTY. GEN. OPINIONS: Assessment of costs by justiceof the peace in assessing fine for violation of game code, 1920 -22, p 611; mandamus as proper remedy to compel courtto collect and pay over fines and forfeitures imposed underfish and game laws, 1936 -38, p 110.

496.905

ATTY. GEN. OPINIONS: Collection of assessment for police

training with bail deposit, ( 1971) Vol 35, p 740.

496.990

ATTY. GEN. OPINIONS: License agent who knowinglyissues a resident license to a nonresident, 1958 -60, p 295; advising person regarding game inspection, 1966 -68, p 54.


501

SUPERSEDED

Chapter 497

Licenses and Permits

Chapter 497

ATTY. GEN. OPINIONS: Validity of requiring a speciallicense to bring in fish from beyond the three -mile limit, 1952 -54, p 95; commission power to require stream Flowsnecessary for wild fish and animals, 1962 -64, p 117.

497.010

CASE CITATIONS: Fields v. Wilson, ( 1949) 186 Or 491, 207

P2d 153; Klamath and Modoc Tribes v. Maison, ( 1964) 338F2d 620.

ATTY. GEN: OPINIONS: State's jurisdiction over navigableand nonnavigable waters in protection of wildlife, 1940 -42,

p 485; right of county clerk to refuse to sell game licenses, 1950 -52, p 336; constitutionality of bill which subjects toa criminal penalty persons who " import" into this state byany means salmon taken by hook and line " from watersbeyond the boundaries of this state, including the PacificOcean," in excess of established bag limits, 1952 -54, p 95.

497.040

ATTY. GEN. OPINIONS: Hunters employed by the FederalGovernment in predatory animal control as subject to statelicense requirements, 1942 -44, p 392; application to riparianlandowner on nonnavigable stream, 1948 -50, p 432; duty ofcounty clerk to sell game licenses as mandatory, 1950 -52, p 336; validity of requiring a special license to bring in fishfrom beyond the three -mile limit, 1952 -54, p 95; requirementof license and tag for resident deer hunters, 1956 -58, p 180; furnishing a gun to any child between the ages of 12 and14 years, ( 1968) Vol 34, p 350.

497. 110

ATTY. GEN. OPINIONS: When nonresident minor required

to secure hunting and fishing license, 1934 -36, p 517; residence for hunting or angling license as actual rather thandomiciliary residence, residence or nonresidence as determined as of the time the license is issued, 1942 -44, p 389.

497. 140

ATTY. GEN. OPINIONS: Whether person who furnishes

pack horses to hunters is required to qualify as a guide, as a question of fact, 1928 -30, p 404; when game commissionhas authority to refuse to issue a guide' s license, 1936 -38, p 232.

497. 170

ATTY. GEN, OPIMONS: Tribes included in the term " Co-

lumbia River Indians," 1948 -50, p 340.

497.210

ATTY. GEN, OPINIONS: Right of county clerk to refuse

to sell game licenses, 1950 -52, p 336; license agent whoknowingly issues a resident license to a nonresident, 1958- 60, p 295.

497.230

ATTY: GEN. OPINIONS: Antedating hunter's or angler'slicense, 1924 -26, p 644; right of county clerk to refuse tosell game licenses, 1950 -52, p 336; license agent who know - ingly- issues a resident license to a nonresident, 1958 -60, p295.

497.410

NOTES OF DECISIONS

Under a former similar statute, a county clerk was liableunder his official undertaking for money collected by himfor fishing and hunting licenses and lost by failure of abank, without negligence on his part. Fleischner v. Florey, 1924) 111 Or 35, 224 P 831.

ATTY. GEN. OPINIONS: Right of county clerk to refuseto sell game licenses, 1950 -52, p 336.

497.420

ATTY. GEN. OPINIONS: Right of county clerk to refuseto sell game licenses, 1950 -52, p 336.

497.440

ATTY. GEN. OPINIONS: Recovery of money received fromsale of licenses mingled by agent with other funds, 1924 -26, p 195; federal guarantee of bank deposits as a sufficientguarantee of the game commission revolving fund, 1936 -38, p 91.

497.470

ATTY. GEN. OPINIONS: Procedure in collecting amountdue state as a result of game licenses sold by personsauthorized to issue game licenses.- 1924 -26, p 286.

497.610

ATTY. GEN. OPINIONS: Requirement of license and tagfor resident deer hunters, 1956 -58, p 180.

497.710

ATTY. GEN. OPINIONS: Fishing on Sandy River by gamefishing licensees and commercial fishing licensees, 1942 -44, p 301.

497.730

ATTY. GEN. OPINIONS: Requirement of license for hunt-

ing or trapping wild animals whether predatory or non - predatory, 194214, p 271.

502

SUPERSEDED

497.740

NOTES OF DECISIONS

Business," as used in former similar statute, meant business in a trade or commercial sense carried on for profit. State v. Rubenstein, ( 1924) 112 Or 179, 228 P 918.

ATTY. GEN. OPINIONS: Person to whom statute applies,

1922 -24, p 500; licensing of tanning company purchasingskins of fur - bearing animals, 1926 -28, p 450.

497.770

NOTES OF DECISIONS

It was the purpose of a former similar statute to obtaininformation for the game commission, and not to limit

raising of fur - bearing animals to those specially qualified, or to protect the public against fraud. Belanger v. Howard, 1941) 166 Or 408, 112 P2d 1022.

Lack of a permit did not affect title to animals. Id.

ATTY. GEN. OPINIONS: Procuring of permit by person

497.990

operating a fox farm, 1926 -28, p 172; authority to confiscateminks and pelts sold without breeder' s permit, 1938 -40, p607; right of a holder of breeder' s permit to raise beavers

for commercial purposes, 1948 -50, p 161.

497.780

ATTY. GEN. OPINIONS: Necessity of city employe furnishing bond and paying fee, 1948 -50, p 244.

497.820

ATTY. GEN. OPINIONS: Application to buffalo herd, ( 1971)

Vol 35, p 653.

497.990

ATTY. GEN. OPINIONS: Right of county clerk to refuseto sell game licenses, 1950 -52, p 336; license agent whoknowingly issues a resident license to a nonresident, 1958- 60, p 295; commission power to require stream flows necessary for wild fish and animals, 1962 -64, p 117.

503

SUPERSEDED

Chapter 498

Hunting and Fishing Regulations; Miscellaneous Wildlife Protective Measures

Chapter 498

CASE CITATIONS: Klamath & Modoc Tribes v. Maison,

1956) 139 F Supp 634.

ATTY. GEN. OPINIONS: Application of state and federal

forest service regulations in same area, 1954 -56, p 50; commission power to require stream flows necessary for wildfish and animals, 1962 -64, p 117.

498.005

NOTES OF• DECISIONS

This section is concerned only with animals constitutinga part of the wild life of the state. Belanger v. Howard,

1941) 166 Or 408, 112 P2d 1022.

FURTHER CITATIONS: Fields v. Wilson, ( 1949) 186 Or 491, 207 P2d 153; Anderson v. Britton, ( 1957) 212 Or 1, 318 P2d

291.

ATTY. GEN. OPINIONS: Commission' s authority to salvagemarooned fish without landowner' s permission, 1936 -38, p350; power of the Federal Government to protect its nation-

al forests by causing wild game to be removed therefromwithout reference to state game laws, 1944 -46, p 112; riparian landowner's right to fish as subject to state regula-

tions, 1948 -50, p 432; authority to lease state land to privateinterests for exclusive waterfowl privileges, 1958 -60, p 312; application to unbranded horses running at large on uninclosed public lands, ( 1971) Vol 35, p 720.

49& 027

ATTY. GEN. OPINIONS: Authority of commission to paycommercial fisherman, under contract for his services, 75percent of the proceeds from the sale of game fish, 1950 -52,

p 333; application to unbranded horses running at large onuninclosed public lands, ( 1971) Vol 35, p 720.

498.085

ATTY. GEN. OPINIONS: Possession of side of ribs of a deer

during open season without tag as a violation, 1934 -36, p532; jerking or canning meat of deer at hunter's camp, 1938 -40, p 446.

498. 105

NOTES OF DECISIONS

At such time" as used in subsection ( 1) is construed to

authorize the killing of a dog running game, animals onlyat the time of its offense. Fleck v. Russell, ( 1928) 126 Or341, 269 P 883.

Killing a dog which, by reason of its being less than eightmonths old on March 1 of the year of its offense, did not

require a license for that year, is not authorized by thissection. Id.

498. 115

ATTY. GEN. OPINIONS: Training dogs in Champoeg Parkfor hunting, 1938 -40, p 273; effect of this section on thepowers of the Federal Government, 1954 -56, p 49.

498. 120

ATTY. GEN. OPINIONS: Marshland inclosed by naturalbarriers as " inclosed land," 1938 -40, p 104; trespassers onuninclosed lands within Klamath Indian Reservation,

1954 -56, p 172; trustee managed property of tribe as inclosedland, 1960 -62, p 313.

498. 125

CASE CITATIONS: Thomson v. Dana, ( 1931) 52 F2d 759.

ATTY. GEN. OPINIONS: Establishment of game refuge on

navigable streams, 1922 -24, p 489; floating boat - landingobstructing right of fishing as nuisance, 1924 -26, p 90; authority of tenant of upland adjoining navigable rivers, sloughs or streams to restrict or interfere with the right

of licensed hunters to hunt from boats on that portion of

such waters as are in fact navigable, 1944 -46, p 42.

498.205

ATTY. GEN. OPINIONS: Construing area description, 1950 -52, p 79.

498.220

ATTY. GEN. OPINIONS: " Shores" defined, 1938 -40, p 563.

ATTY. GEN. OPINIONS: Applicability of this section toflumes, tributaries or millraces branching from Mill Creek, 1948 -50, p 285; right of lessee of land bordering Mill Creekto fish from his land, 1948 -50, p 432.

498.405

ATTY. GEN. OPINIONS: Authority of permittee to sellbeavers for commercial purposes, 1948 -50, p 161.

498.577

ATTY. GEN. OPINIONS: When persons killing muskratsneed no license, 1938 -40, p 249.

49& 585

ATTY. GEN. OPINIONS: Returning to water trout undersix inches as waste, 1938 -40, p 676; contracting for commercial fisherman to remove undesirable fish, 1950 -52, p 334.

504

SUPERSEDED

498.605

AM. GEN. OPINIONS: Requirement that jerked or

canned venison be tagged or sealed during closed season, 1938 -40, p 598.

49& 625

CASE CITATIONS: State v. Schuman, ( 1899) 36 Or 16, 58

P 661, 78 Am St Rep 754, 47 LRA 153; In re Deininger, (1901) 108 F 623.

AM. GEN. OPINIONS: Buying or selling skin or hide ofdeer for purpose of manufacturing same into gloves to besold in state, 192426, p 596; authority of game commissionto limit the sale of game animals, birds, or fish, or any partthereof, 1926 -28, p 444; authority of commission to paycommercial fisherman, under contract for his services, 75percent of the proceeds from the sale of game fish, 1950 -52,

p 333.

498.641

AM. GEN. OPINIONS: Constitutionality of similar proposed bill, 1952 -54, p 95; validity of section where federalregulations apply, 1956 -58, p 49.

49 &720

AM. GEN. OPINIONS: Availability of injunction to enforce, 1950 -52, p 70.

498.725

AM. GEN. OPINIONS: Availability of injunction to enforce, 1950 -52, p 70.

498.730

NOTES OF DECISIONS

It is public policy to protect migratory fish and also topermit and encourage the use of waters for the developmentof electric power, neither of which is to be disregarded.

State v. Beaver Portland Cement Co., ( 1942) 169 Or 1, 124

P2d 524, 126 P2d 1094.

498.820

It is doubtful whether this section applies to•a dam which

is not built across any stream. Id. In game commission's suit to enjoin reconstruction of

hydroelectric project, the evidence showed that the project

would not appreciably interfere with the free passage offish. Id.

AM. GEN. OPINIONS: Right of game commission to

require fish ladders to be brought up to standard, 1930 -32, p 212; commission' s authority to construct screens to prevent Fish passing from Crescent Lake into Crescent Creek, 1938 -40, p 471; authority of the game commission to grantpermission for the construction of a dam by a loggingcompany, 1942 -44, p 375.


49& 732


49& 735

ATTY. GEN. OPINIONS: State Fisheries Director's authori-

ty to require removal of obstructions, 1962 -64; p 80.

LAW REVIEW CITATIONS: 3 WU 303, 311.

49& 740


49& 745


498.750

AM. GEN. OPINIONS: Power of game commission to

enjoin the operation of a ditch, canal or millrace without

proper grating, 1950 -52, p 70.

498.820

AM. GEN. OPINIONS: Furnishing a gun to any childbetween the ages of 12 and 14 years, ( 1968) Vol 34, p 350.

F; IR,

SUPERSEDED

Chapter 501

Hatcheries, Refuges and Reservations;

Shooting Preserves

Chapter 501

ATTY. GEN. OPINIONS: Commission power to require

stream flows necessary for wild life and animals, 1962 -64, p 117.

501. 010

ATTY. GEN. OPINIONS: When person may lawfully sellblack bass propagated and grown in his own private fish

hatchery, 1934 -36, p 480; authority of land owner to stocklake on his land and fish at any season of year, 1938 -40, p 456.

501. 040

ATTY. GEN. OPINIONS: Monthly reports of the game fishsold or otherwise disposed of as required of an operator

of a private fish hatchery or fish pond, 1924 -26, p 644.

501.070

ATTY. GEN. OPINIONS: Validity of this section, 1938 -40, p 201.

501. 100

ATTY. bEN. OPINIONS: Validity of this section, 1938 -40, p 201.

501. 110


501. 120


501. 210

ATTY. GEN. OPINIONS: Discretion to proclaim land owned

by state around state hospital as wild bird and game refuge,

1922 -24, p 391; methods of creating game reserves, 1940- 42, p 315.

501. 220

ATTY. GEN. OPINIONS: Validity of contract for establishment of game refuge not signed by wife of owner of lands, 1924 -26, p 432; description of land in contract for creationof wild bird and game refuge, 192426, p 503; meaning ofterms " game refuges" and " game reservations," 1926 -28, p37, 1926 -28, p 39; lease of privately -owned lands includedwithin boundaries of game refuge as unnecessary, 1938 -40, p 91.

501. 230

ATTY. GEN. OPINIONS: Carrying of loaded gun on gamerefuge, 1920 -22, p 421.

501.260

ATTY. GEN. OPINIONS: Meaning of terms " game reservations" and " game refuges," 1926 -28, p 37, 1926 -28, p 39.

501. 270

ATTY. GEN. OPINIONS: Owner of property within SteenMountain Game Refuge as subject to penalty for takinggame in said reserve, 1938 -40, p 764.

501.300

ATTY. GEN. OPINIONS: Authority of game commissionto open Sturgeon Lake Game Reservation to hunting andfishing, 194648, p 125.

501. 620

ATTY. GEN. OPINIONS: Game commission to remove West

and Little Sturgeon Lakes from the Sturgeon Lake Game

Reserve, or to change and relocate the boundary fine ofsaid reserve, 1936 -38, p 524; drainage of Marquam and LittleSturgeon Lakes as affecting Sturgeon Lake Game Reserva- tion, 1946 -48, p 125.

506

C

SUPERSEDED

Chapter 506

Application, Administrationand Enforcement of

Commercial Fishing Laws

Chapter 506

ATTY. GEN. OPINIONS: Construing commission authorityto close specific waters to commercial fishing, 1962 -64, p70; fishing regulations on Umpqua River, 1962 -64, p 47; authority to provide fish eggs or fish to educational institutions for educational purposes, 1962 -64, p 378; food fish asincluding both fin -fish and shellfish, 1962 -64, p 388.

506.001

ATTY. GEN. OPINIONS: Fishing regulations on the Ump- qua River, 1962 -64, p 47; duty of Washington wholesalerto be licensed to deliver or pick up fish in Oregon, 1964 -66, p 407.

506.006

CASE CITATIONS: Sohappy v. Maison, ( 1969) 302 F Supp899, 907.

ATTY. GEN. OPINIONS: Personal use of fish taken bycommercial fisherman, 1964 -66, p 451.

50 &011


50 &016


506.036


ATTY. GEN. OPINIONS: Resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 196466, p 332; duty of Washingtonwholesaler to be licensed to deliver or pick up fish in Ore- gon, 1964 -66, p 407; poundage fee on steelhead taken incidentally, ( 1969) Vol 34, p 743.

50& 040



506.045

NOTES OF DECISIONS

The right of the Indians to fish at all usual and accus-

tomed places may not be qualified by the state. Sohappyv. Maison, ( 1969) 302 F Supp 899.

If defendants are violating tribal regulations they haveno status to claim the exclusion for Indians under this

section. State v. Gowdy, ( 1969) 1 Or App 424, 462 P2d 461. Where the authority of a representative group of the tribe

is recognized by a department of the federal government, the court must also recognize that authority. Id.

FURTHER CITATIONS: Maison v. Consolidated Tribes of

Umatilla Indian Reservation, ( 1963) 314 F2d 169.

ATTY. GEN. OPINIONS: Construing commission authorityto close specific waters to commercial fishing, 1962 -64, p70; jurisdiction of justice of the peace courts, ( 1971) Vol

35, p 597.

506.105

CASE CITATIONS: State v. Hill, (1947) 181 Or 585, 184 P2d366.

50& 126

ATTY. GEN. OPINIONS: Resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 1964 -66, p 332.

506.136

ATTY.: GEN. OPINIONS: Classification of fish, 1962 -1964,

p 388.

506. 141

ATTY. GEN. OPINIONS: Closing Tillamook Bay for oneyear, 1962 -64, p 70.

506. 146

NOTES OF DECISIONS

Under former similar statute, the Indians' treaty rightsto fish was qualified by the state' s right to regulate suchfishing when necessary for conservation. Maison v. Consol- idated Tribes of Umatilla Indian Reservation, ( 1963) 314 F2d

169, affg 186 F Supp 519.

ATTY. GEN. OPINIONS: Fishing regulations on the Ump- qua River, 1962 -64, p 47; concurrent enforcement of penaltyand seizure for illegal catch, regulation of incidental har-

vest, 1962 -64, p 339; licenses and fees to harvest or sellnonfood fish, 1962 -64, p 388.

507

SUPERSEDED

506. 151

506. 151

ATTY. GEN. OPINIONS: Fishing regulations on the Ump- qua River, 1962 -64, p 47; publication of statewide fishingregulations in an Umpqua River Valley newspaper, 1962 -64, p 372.

506.201

ATTY. GEN. OPINIONS: Fish commission transferring titleto property to the United States without complying withprovision as to condemnation, leasing or granting easementas within power of commission, 1934 -36, p 63; acceptingbids in connection with sale of parcels of land at Bonneville

as within authority of commission, 1934 -1936, p 153; authority to provide fish eggs for educational and scientificpurposes, 1962 -1964, p 378; resolving differences in conflicting proposals of the fish and game commissions regardingsalmon and steelhead, 196466, p 332.


506.255


506.306

ATTY. GEN. OPINIONS: Statement of dollar cost of initia-

tive amendment, 1964-66, p 23.

506.316

ATTY. GEN. OPINIONS: Refund of fees, 1962 -64, p 70.

506.321

ATTY. GEN. OPINIONS: Gifts from commercial fishermen,

1969) Vol 34, p 743.

506.410

ATTY. GEN. OPINIONS: Disposition of revenue from

hatcheries receiving federal funds, 1962 -64, p 341.

506.535

ATTY. GEN. OPINIONS: Change of venue of case in justice

court from one county to another, 1920 -22, p 222; justicecourt's jurisdiction to declare forfeiture of property usedby violators of commercial fishing laws, 1938 -40, p 188; jurisdiction of justice of the peace courts; jurisdiction to

try Indians, ( 1971) Vol 35, p 597.

506.690

ATTY. GEN. OPINIONS: Concurrent enforcement of pen-

alty and seizure for illegal catch, 1962 -64, p 339.

506.695

ATTY. GEN. OPINIONS: Concurrent enforcement of pen-

alty and seizure for illegal catch, 1962 -64, p 339.

506.991

ATTY. GEN. OPINIONS: Publication of state -wide fishingregulations in an Umpqua River Valley newspaper, 1962 -64, p 372; concurrent enforcement of penalty and seizure forillegal catch, 1962 -64, p 339; jurisdiction of justice of thepeace courts; jurisdiction to try Indians, ( 1971) Vol 35, p597.

508

1 u

SUPERSEDED

r

u

Chapter 507

Compacts with Other States

Chapter 507


ATTY. GEN. OPINIONS: Food fish as including both fin- fish and shellfish, 1962 -64, p 389.

507.010

NOTES OF DECISIONS

Each state has limited its right by the compact only itsto its common right with the adjoining state to take fishin the waters which are subject_ to the concurrent jurisdic-

tion. Union Fishermen's Co. v. Shoemaker, ( 1921) 98 Or 659, 193 P 476, 194 P 854; Olin v. Kitzmiller, ( 1920) 268 F 348, afPd 259 US 260, 42 S Ct 510, 66 L Ed 930.

It is assumed that the compact is binding on the twostates to the extent that one cannot withdraw without the

consent of the other, and that therefore one state cannot

without the consent and approbation of the other enact

any law which would conflict with the terms of the compact. Union Fishermen' s Co. v. Shoemaker, ( 1921) 98 Or

659, 193 P 476, 194 P 854.

This compact is not violated by a law prohibiting withinthe state the possession or sale of fish caught beyond the

three -mile limit outside the Columbia River during theclosed season. Id.

The Oregon legislature acted in harmony with this compact when it excluded aliens from fishing rights. Olin v. Kitzmiller, (1921) 259 US 260, 42 S Ct 510, 66 L Ed 930, affg268 Fed 348.

The compact was ratified by an Act of Congress approvedApril 8, 1918 ( c. 47, 40 Stat. at L. 515, Fed. Stat. Ann. Supp. 1918, p. 179). Id.

FURTHER CITATIONS: Anthony v. Veatch, ( 1950) 189 Or462, 220 P2d 493, 221 P2d 575, appeal dismissed 340 US 923, 71 S Ct 499, 95 L Ed 667; Miles v. Veatch, ( 1950) 189. Or506, 220 P2d 511, 221 P2d 905.

ATTY. GEN. OPINIONS: Restraints upon the fishing privileges within its own territorial jurisdiction as affected bythis compact, 1934 -36, p 289.


507.020

ATTY. GEN. OPINIONS: Application of salmon - steelhead

tagging regulations to fish caught in Columbia River, 1950 -52, p 243.

507.030

ATTY. GEN. OPINIONS: Construing commission authorityto close specific waters to commercial fishing, 1962 -64, p70.

507.040

ATTY. GEN. OPINIONS: Construing proposed ColumbiaInterstate Compact, 1964 -66, p 146.

Krll!]

SUPERSEDED

Chapter 508

Licenses

Chapter 508

ATTY. GEN. OPINIONS: Fishing regulations on UmpquaRiver, 1962 -64, p 47; whether fish buyer must be named inhis license, 1962 -64, p 375; food fish as including both fin -fishand shellfish, 1962 -64, p 389; validity of excluding nonresidents from licensing under commercial fishing laws, ( 1970) Vol 35, p 370.

50 &000

ATTY. GEN. OPINIONS: Licensed commercial fisherman

retaining fish or fishing for personal use, 196466, p 451.

50& 025

NOTES OF DECISIONSUnder former similar statute the legislature intended all

persons, whether employer or employe, actually engaged

in catching salmon to be licensed. Alsos v. Kendall, ( 1924) 111 Or 359, 227 P 286.

A licensing under the provisions of the former fish codedid not give fixed gear fisherman franchises, nor create

contracts or vested rights, so as to make legislation prohi-

biting the use of fixed gear violative of the contracts clauseof U.S. Const. Art. I, § 10. Anthony v. Veatch, ( 1950) 189Or 462, 220 P2d 493, 221 P2d 575, app. dis. 340 US 923, 71S Ct 499, 95 L Ed 667; Miles v. Veatch, ( 1950) 189 Or 506,

220 P2d 511, 221 P2d 905.

ATTY. GEN. OPINIONS: Right of owner of slough to take

clams therefrom without license, 193436, p 74; sale of por- tions of fish by employes of salmon canneries withoutlicense, 1934 -36, p 470; applicability of section to salmoneggs prepared and sold for bait, 194042, p 480; applicationto Washington wholesalers, 1962 -64, p 406; duty of Wash- ington wholesaler to be licensed to deliver or pick up fishin Oregon, 1964 -66, p 407.

50 &030

CASE CITATIONS: Monroe v. Withycombe, ( 1917) 84 Or328, 165 P 227.

ATTY. GEN. OPINIONS: Authority to collect trap licensesfrom traps on Oregon side of Columbia River, 1924 -26, p319; licensed operator of lawful fishing gear selling fishwithout license, 1932 -34, p 7.

508.035

ATTY. GEN. OPINIONS: Licensed operator of lawful fish-

ing gear selling fish without a license, 1932 -34, p 7; licenseneeded for private corporation that operates a cannery, 1948 -50, p 361; licenses which a person buying unlabeledcanned salmon to sell under his own label must have,

1952 -54, p 21; name of licensee on buyer's license, 1962- 64,. p 376; application to Washington wholesalers, 1962 -64, p406; transfer of license on reorganization of corporate em-

ployer, 1962 -64, p 471; duty of Washington wholesaler tobe licensed to deliver or pick up fish in Oregon, 1964 -66, p 407.

50 &045

ATTY. GEN. OPINIONS: Collecting fees from Indians withtreaty rights, 1962 -64, p 361; licenses of Washington wholesalers, 1962 -64, p 406.

508. 106

ATTY. GEN. OPINIONS: Licenses and fees to harvest or

sell nonfood fish, 1962 -64, p 388.

508.235

ATTY. GEN. OPINIONS: Crew members of commercial

fishing boats who fish within three -mile limit for bait fishfor use in fishing on the high seas as subject to licenseunder this section, 1952 -54, p 44; licenses and fees to harvestor sell nonfood fish, 1962 -64, p 388; taking crab• and othershellfish from the Rogue River, 1964 -66, p 4; statement ofdollar cost of initiative amendment, 1964 -66, p 23.

508.240

ATTY. GEN. OPINIONS: Duty of Washington wholesalerto be licensed to deliver or pick up fish in Oregon, 1964 -66, p 407; licensed commercial fisherman retaining fish or fishing for personal use, 1964 -66, p 451.

508.260

ATTY. GEN. OPINIONS: Boat license renewals and fees,

1962 -64, p 330; collecting fees from Indians with treatyrights, 1962 -64, p 361.

508.285

ATTY. GEN. OPINIONS: Constitutionality of authority todeny a license to a person who is not a citizen, 1964 -66, p 106; duty of Washington wholesaler to be licensed todeliver or pick up fish in Oregon, 1964 -66, p 407.

508.290

ATTY. GEN. OPINIONS: Statement of dollar cost of initia-

tive amendment, 1964 -66, p 23.

50 &410

NOTES OF DECISIONS

Under former similar statute, the location of any fixedfishing appliance or seine had to be specified in detail inthe application for a license. Williams v. Seufert Bros. Co.,

1920) 96 Or 163, 188 P 165, 189 P 636; Ex parte Desjeiro,

1907) 152 Fed 1004.

510

is

1 u

SUPERSEDED

50 &415

NOTES OF DECISIONS

Under former similar statute, the state was the real partyin interest in an action to foreclose a lien for poundage

fees, notwithstanding the fact that surety bonds had beenfiled to secure the payment of the fees. State v. Swensk,

1939) 161 Or 281, 89 P2d 587.

Under former similar statute, there was no waiver of the

lien in favor of the state by reason of the fact that thesurety bonds for the payment of poundage fees due wereexacted. Id.

FURTHER CITATIONS: State v. Jutstrom Fish Co., ( 1935)

149 Or 362, 39 P2d 355.

ATTY. GEN. OPINIONS: Determination of bond required

as within authority of commission, 1924 -26, p 62.

508.450

ATTY. GEN. OPINIONS: Name of licensee on buyer' s li-

cense, 1962 -64, p 376; transfer of license on reorganizationof corporate employer, 1962 -64, p 471.

ATTY. GEN. OPINIONS: Transfer of licenses on reorgani-

zation of corporate licensee, 1962 -64, p 471.

50& 470

ATTY. GEN. OPINIONS: Boat license renewals and fees,

1962 -64, p 330.

50& 475

NOTES OF DECISIONS

A right paramount to the constitutional right to fish,

common to all citizens, is not obtained by the licensee byrenewal. Driscoll v. Berg, ( 1931) 137 Or 499, 293 P 586, 1P2d 611.

FURTHER CITATIONS: Williams v. Seufert Bros. Co., 1920) 96 Or 163, 188 P 165, 189 P 636.

NOTES OF DECISIONS

The poundage fee is a license or privilege tax on the

business or occupation. State v. Jutstrom Fish Co., ( 1935)

149 Or 362, 39 P2d 355; State v. Franklin, ( 1940) 163 Or 500,

98 P2d 724.

The mere fact that fish are taken in waters over which

the state has no jurisdiction does not alter the obligation

to pay the poundage tax. State v. Jutstrom Fish Co., ( 1935)

149 Or 362, 39 P2d 355.

Fish caught beyond the three -mile limit lose their

character as imports when brought to port and sold to a

dealer in this state and immediately beheaded, re -iced andshipped to points outside the state, rendering such dealersubject to the tax. Id.

A refusal to pay a poundage tax on fish of true importcharacter or on those shipped in interstate commerce will

not render the principal and surety upon a bond guarantee- ing payment of poundage tax liable thereon. Id.

The defenses of a tax on imports and the burdening ofinterstate commerce are not withdrawn from a principal

and a surety upon a bond in an action thereon. Id. Both principal and surety are estopped to assert the inva-

lidity of the statute where by reason of the bond guarantee-

508.525

ing payment of the poundage tax the state is induced toissue a license to the principal. Id.

A partner was liable for poundage fees regardless of thename in which the license was issued. State v. Franklin,

1940) 163 Or 500, 98 P2d 724.

FURTHER CITATIONS: Booth Fisheries Co. v. Kendall,

1924) 111 Or 377, 227 P 291.

ATTY. GEN. OPINIONS: Enforcement by fish commission of provisions requiring payment of poundage fee, 1924 -26, p 273; poundage fees collectible from plants anddealers located in or doing business in Oregon, 1924 -26, p319; poundage fee as burden upon interstate commerce,

1930 -32, p 284; poundage fee on fish purchased in anotherstate, 1930 -32, p 346; authority to collect a poundage feefrom fish purchased or received by Oregon canners fromplaces located within Washington, 1930 -32, p 355; extentof fish commission' s authority to require reports, 1960 -62, p 173; denial of license for nonpayment of poundage fees, 1962 -64, p 328; collecting fees from Indians with treatyrights, 1962 -64, p 361; licenses and fees to harvest or sellnonfood fish, 1962 -64, p 388; poundage fees on fish landedoutside Oregon, 1962 -64, p 406; taking crab and other shellfish from the Rogue River, 1964 -66, p 4; statement of dollarcost of initiative amendment, 1964 -66, p 23; duty of Wash- ington wholesaler to be licensed to deliver or pick up fishin Oregon, 196466, p 407; poundage fee on steelhead takenincidentally, ( 1969) Vol 34, p 743.

511

50 &510

ATTY. GEN. OPINIONS: Poundage fees on fish landed out-

side Oregon, 1962 -64, p 406; duty of Washington wholesalerto be licensed to deliver or pick up fish in Oregon, 1964 -66, p 407.

508.515

ATTY. GEN. OPINIONS: Denial of license for nonpayment

of poundage fees, 1962 -64, p 328; poundage fees on fishlanded outside Oregon, 1962 -64, p 406.

508.520

ATTY. GEN. OPINIONS: Duty of Washington wholesalerto be licensed to deliver or pick up fish in Oregon, 1964 -66, p 407.

508.525

NOTES OF DECISIONS

1. ConstitutionalityCreditors were not deprived of "due process of law" by

the statutory lien for poundage fees. State v. Franklin, 1940) 163 Or 500, 98 P2d 724.

This provision is not unconstitutional as being in violation of the equal protection and privileges and immunities

clauses. Id.

The obligations of contract or the due process clause were

not impaired by enforcing against an assignee of a conditional sales contract the state lien for poundage fees. State

v. Swensk, ( 1939) 161 Or 281, 89 P2d 587.

2. Lien

To create a lien it is sufficient that the equipment was

part of a plant engaged in canning and that the fish forwhich poundage fees are claimed were packed in that plant;

no showing as to use of particular machine on the fish isnecessary. State v. Swensk, ( 1939) 161 Or 281, 89 P2d 587.

It is the use of the machinery and equipment, and notits ownership, upon which the lien is based. Id.

SUPERSEDED

508.530

An assignee of a conditional seller of fish canning equipment took the property subject to a lien in favor of thestate for poundage fees owed by the cannery. Id.

3, Foreclosure

Equity has jurisdiction to foreclose a statutory lien; suchjurisdiction may not be denied on the ground that thestate has adequate remedy at law on bonds filed to coverpoundage fees. State v. Swensk, ( 1939) 161 Or 281, 89 P2d

587.

The state was the real party in interest in an action toforeclose a Gen for poundage fees, notwithstanding the factthat surety bonds had been filed to secure the payment ofthe fees. Id.

4. Estoppel and waiver

Estoppel against the state will not arise by reason oflaches of the fish commission. State v. Swensk, ( 1939) 161Or 281, 89 P2d 587.

The state is not estopped by reason of delay in bringingsuit and by reason of the fact that the owner expendedmoney in removing its property from the cannery. Id.

The fish commission has no power to waive a lien in favor

of the state for poundage fees due. Id. There was no waiver of the lien in favor of the state by

reason of the fact that the surety bonds for the paymentof poundage fees due were exacted. Id.

ATTY. GEN. OPINIONS: Foreclosure of lien for unpaid

poundage fees on salmon and other fish, 1932 -34, p 337; enforcement of lien for poundage fees against propertyleased by owner to person carrying on operations for whichfees may be assessed, 1934 -36, p 173; duty of fish commission to collect amount of interest fixed by court decree forclosing poundage lien, 1936 -38, p 361.

508.530

ATTY. GEN. OPMONS: Extent of commission' s authorityto require reports, 1960 -62, p 173; denial of license for nonpayment of poundage fees, 1962 -64, p 328; duty of Washing- ton wholesaler to be licensed to deliver or pick up fish inOregon, 196466, p 407.

508.535

ATTY. GEN. OPINIONS: Duty of Washington wholesalerto be licensed to deliver or pick up fish in Oregon, 196466, p 407.

508.540

ATTY. GEN. OPINIONS: Denial of license for non - payment

of poundage fees, 1962 -64, p 328.

512

SUPERSEDED

Chapter 509

General Protective Regulations

Chapter 509

ATTY. GEN. OPINIONS: Fishing regulations on UmpquaRiver, 1962 -64, p 47; authority of State Fisheries Directorto order removal of artificial obstructions across streams,

1962 -64, p 80; construing this chapter with statutes governing specific areas, 1962 -64, p 339; food fish as including bothfn -fish and shellfish, 1962 -64, p 389.

509.006

ATTY. GEN. OPINIONS: Taking crab and other shellfishfrom the Rogue River, 1964 -66, p 4.

509.025

ATTY. GEN. OPINIONS: Construing commission authorityto close specific waters to commercial fishing, 1962 -64, p70.

509.030

ATTY. GEN. OPINIONS: Construing commission authorityto close specific waters to commercial fishing, 1962 -64, p70; incidental catch in the Umpqua River, 1962 -64, p 339; poundage fee on steethead taken incidentally, ( 1969) Vol34, p 743.

509.230

ATTY. GEN. OPINIONS: Validity of section where federalregulations apply, 1956 -58, p 49.

509.375

ATTY. GEN. OPINIONS: Constitutionality, 1956 -58, p 49.

509.415


509.425

ATTY. GEN. OPINIONS: Leasing of oyster beds as exempting lessee from statutory provisions, 1932 -34, p 569; dredging of oyster beds in artificial plantations, 1948 -50, p 191.

509.465

ATTY. GEN. OPINIONS: When lease for oyster cultural

purposes may be granted and granting of exclusive lease, 1934 -36, p 721; authority of commission to execute succes- sive leases to any one person, and to cancel existing leaseand execute a new one, 1934 -36, p 789; authority of commission to execute lease with expiration date beyond terms

of commission members containing a covenant that lesseeshould have preference right for renewal of lease, 1938 -40,

p 224; " local oystermen," as used in the 1943 amendment, 1942 -44, p 278.

509.495

NOTES OF DECISIONS

The state has never intended to part with title to the

bed of Tillamook Bay. Union Land Associates v. Usher, 1944) 174 Or 453, 149 P2d 568.

509.505

ATTY. GEN. OPINIONS: Enjoining as a nuisance thedumping of sawdust in a bay resulting in injury to fishery, 1926 -28, p 173.

509.600 to 509.645


509.605

CASE CITATIONS: Oregon v. Fed. Power Comm., ( 1954)

211 F2d 347.

ATTY. GEN. OPINIONS: Constitutionality of section, 1924 -26, p 39; duty to provide fishway in construction ofsplash dam, 192426, p 636; authority of game commissionand fish commission, respectively, over fishracks and fish - way ladders, 1936 -38, p 379; authority of fish and gamecommissions as to construction and maintenance of dams,

irrigation projects, etc., 1940 -42, p 463; necessity of maintaining fishways in dams, 1948 -50, p 81; application whenauthorizing hydroelectric dam project, 1948 -50, p 252; authority of commission to order removal of artificial obstructions across streams, 1962 -64, p 80.

509.620

ATTY. GEN. OPINIONS: Authority to delegate responsibility to Federal Government, 1948 -50, p 81; applicationwhen authorizing hydroelectric dam project, 1948 -50, p 252; authority of commission to order removal of artificial obstructions across streams, 1962 -64, p 80.

509.625

AM. GEN. OPINIONS: Authority of commission to orderremoval of artificial obstructions across streams, 1962 -64,

p 80.

509.640

CASE CITATIONS: Federal Power Comm. v. Oregon, ( 1955) 349 US 435, 450, 75 S Ct 832, 841, 99 L Ed 1215, 1227.

ATTY. GEN. OPINIONS: Procedure for approval of theconstruction of a hydroelectric dam, 1948 -50, p 252.

513

SUPERSEDED

Chapter 511

Local and Special Regulations

Chapter 511

ATTY. GEN. OPINIONS: Food fish as including both fin - fish and shellfish, 1962 -64; p 389; application of chapter tocrab and other shellfish, 1964 -66, p 4.

511. 060

CASE CITATIONS: Bugas v. Appling, ( 1964) 238 Or 206, 394 P2d 1023.

ATTY. GEN. OPINIONS: Fishing regulations on the Ump- qua River, 1962 -64, p 47; closing Tillamook Bay for one year, 1962 -64, p 70; incidental catch in the Umpqua River, 1962 -64, p 339.

511. 106

NOTES OF DECISIONS

State may use police power only to the extent necessaryto prevent the exercise of treaty fishing rights in a mannerthat will imperil the continued existence of the fish re-

source. Sohappy v. Maison, ( 1969) 302 F Supp 899, 907.

511.206

CASE CITATIONS: Hume v. Rogue River Packing Co., 1908) 51 Or 237, 83 P 391, 92 P 1065, 96 P 865, 131 Am

St Rep 732, 31 LRA( NS) 396.


511. 506

ATTY. GEN. OPINIONS: Fishing regulations on the Ump- qua River, 1962 -64, p 47; concurrent enforcement of penaltyand seizure for illegal catch, regulation of incidental har-

vest, 1962 -64, p 339.

511. 625

ATTY. GEN. OPINIONS: Assignability of right to plant andcultivate oyster plantations, 1934 -36, p 715.

511. 640

ATTY. GEN. OPINIONS: Dredging oyster beds in artificialplantations, 1948 -50, p 191.

514

J

SUPERSEDED

Chapter 513

Packing Fish and Manufacture of Fish Products

Chapter 513

ATTY. GEN. OPINIONS: Food fish as including both finfishand shellfish, 1962 -64, p 389.

515

SUPERSEDED

516

SUPERSEDED

Chapter 516

Department of Geology and Mineral Industries

516.010

CASE' CITATIONS: Whittle v. Wolff, (1968) 249 Or 217, 436

P2d 114.

516.030

ATTY. GEN. OPINIONS: Department authority to act asassayer or to determine value of shipments for Federal

Government, 1950 -52, p 106.

516.035

ATTY. GEN. OPINIONS: Duty to make spectrographicdeterminations free of charge, 1952 -54, p 24.

516.060

ATTY. GEN. OPINIONS: Duty to make spectrographicdeterminations free of charge, 1952 -54, p 24.

516.080

ATTY. GEN. OPINIONS: Minutes of board meetings as

public records, 1952 -54, p 24.

516.090

ATTY. GEN. OPINIONS: Minutes of board meeting as public record, 1952 -54, p 24.

516. 100

A=. GEN. OPINIONS: Minutes of board meeting as public record, 1952 -54, p 24.

516. 120

ATTY. GEN. OPINIONS: Director of department employed

as technical consultant to War Production Board, 1940 -42,

p 568.

516.130

ATTY. GEN. OPINIONS: Director or member of staff en-

gaging in out of state work in connection with mineralproperty, 1936 -38, p 336; meaning of "commission," 1952 -54, p 24; authority to determine personnel salaries, ( 1970) Vol34, p 977.

517

SUPERSEDED

Chapter 517

Mining . and Mining Claims

Chapter 517

CASE CITATIONS: Kramer v. Taylor, ( 1954) 200 Or 640, 266 P2d 709.

ATTY. GEN. OPINIONS: Application of general mininglaws to extracting gold from ocean beaches, 1954 -56, p 109; application of mining lease statutes to lands reforested withforest rehabilitation funds, 1958 -60, p 353; respective powersof board and Department of Environmental Quality, ( 1970) Vol 35, p 29.

517.010

NOTES OF DECISIONS

Neither federal nor state statutes provide any specifictime within which the location must be made, but until the

boundaries are distinctly marked, and notice posted, thelocation is not complete. Patterson v. Tarbell, ( 1894) 26 Or

29, 37 P 76.

Diligence in marking the boundaries of a claim, the lawbeing otherwise complied with, will protect the rights ofa discoverer of a mineral vein against a subsequent locator.

Id.

A discovery subsequent to the posting of notice validatesthe claim if no adverse rights have accrued. Id.

A claim occupied under color of title for more than 20years is not public mineral land of the United States. Risch

v. Wiseman, ( 1900) 36 Or 484, 59 P 1111, 78 Am St Rep783.

Failure to place monuments at the center ends of the

claim is a fatal omission. Wright v. Lyons, ( 1904) 45 Or 167,

77 P 81.

This section was intended only as a means of determiningthe rights of conflicting claimants, and the boundaries ofthe claim may be marked at any time before conflictingrights attach. Sharkey v. Candiani, ( 1906) 48 Or 112, 85 P219, 7 LRA( NS) 791.

The discovery by a qualified person of a vein of mineral- bearing rock in place on vacant land of the United Statesand the appropriation thereof by him by performing theacts prescribed in the statutes initiates a valid right to a

mining claim. Id. On land already patented no location can be made unless

it has been abandoned so that it has become part of the

unappropriated public domain. Id.

Claim of subsequent locator who attempts to locate on

lands already subject to a valid location is void ab initio. Inman v. 011son, ( 1958) 213 Or 56, 321 P2d 1043.

Discovery gives the claim owner the right to so muchof the surface of the claim as is necessary to him to exploithis discovery. Coos Bay Tbr. Co. v. Bigelow, ( 1961) 228 Or467, 365 P2d 619.

The owner of a mining claim on the public domain ac- quires no right to the surface of the land until he makes

a discovery. Id.

FURTHER CITATIONS: Steele v. Preble, ( 1938) 158 Or 641,

77 P2d 418; Kramer v. Taylor, ( 1954) 200 Or 640, 266 P2d

709; Suitter v. Thompson, ( 1960) 225 Or 614, 358 P2d 267.

ATTY. GEN. OPINIONS: Mineral claims upon city -ownedwatershed, 193840, p 20; prospecting on privately -ownedland subject to regulations, 1940 -42, p 231; placer miningclaims located under like circumstances and conditions and

upon similar proceeding as vein or lode claims, 1944 -46,- p420; lands upon which mining leases may be executed bythe board, 1952 -54, p 149; application of general mining lawsto extracting gold from ocean beaches, 195456, p 109; StateLand Board authority to make rules as to mineral leaseson the ocean shore, 1956 -58, p 109; right of Philippine citizens to exploit natural resources or operate public utilities,

1966 -68, p 306.

517.030

NOTES OF DECISIONS

A discovery subsequent to the posting of notices of location validates the claim, if no adverse rights have accrued.

Sharkey v. Candiani, ( 1906) 48 Or 112, 85 P 219, 7 LRA( NS) 791; Kramer v. Taylor, ( 1954) 200' Or 640, 266 P2d 709.

A recorded notice which does not describe the boundaries

of the claim with sufficient certainty so that they couldbe established on the ground is ineffectual. Strickland v. Commercial Mn. Co., ( 1909) 55 Or 48, 104 P 965.

OL 7627 [ ORS 517.605( 1)] was not impliedly repealed bythe 1901 amendment of this section. Winters v. Burkland, 1927) 123 Or 137, 260 P 231.

The failure to attach the affidavit may be remedied byfiling proper location notices and having the same recorded. Oliver v. Burg, ( 1936) 154 Or 1, 58 P2d 245.

First locator was entitled to possession when a subsequent locator took possession of premises and first locator,

because of risk of violence, failed to complete work within

time provided by statute. Inman v. 011son, ( 1958) 213 Or56, 321 P2d 1043.

FURTHER CITATIONS: Risch v. Wiseman, ( 1900) 36 Or

484, 59 P 1111, 78 Am St Rep 783; Oregon King Min. Co. v. Brown, ( 1902) 55 CCA 626, 119 Fed 48; Wright v. Lyons,

1904) 45 Or 167, 77 P 81; Griffith v. Haiford, ( 1942) 169

Or 351, 128 P2d 947.

517.040

NOTES OF DECISIONS

Where assessment work by a locator had not been done, the claim is subject to relocation. Wagner v. Dorris, ( 1903)

43 Or 392, 73 P 318.

Unless it has been abandoned, so that it has again becomepart of the unappropriated public domain, no location can

be made on land already patented. Sharkey v. Candiani, 1906) 48 Or 112, 85 P 219, 7 LRA(NS) 791.

Where the appearance of a mining claim indicates anabandonment for many years, and no monuments mark theboundaries, another location thereon is authorized. Strick- land v. Commercial Min. Co. ( 1909) 55 Or 48, 104 P 965.

518

SUPERSEDED

JATTY. GEN. OPINIONS: Applicability of this section to theremoval of minerals from tidelands, 1954 -56, p 109.

NOTES OF DECISIONS

Subsection ( 1) of this section was not repealed by the1901 amendment of OL 7619 and OL 7620 ( ORS 517.020 and

517.0301 Winters v. Burkland, ( 1927) 123 Or 137, 260 P 231.

517.080

NOTES OF DECISIONS

Prior to the enactment of this section, the interest of a

locator in possession was held to be personalty. Duffy v. Mix, ( 1893) 24 Or 265, 33 P 807; Allen v. Dunlap, ( 1893) 24Or 229, 33 P 675; Herron v. Eagle Min. Co., ( 1900) 37 Or

155, 157, 61 P 417.

Upon the death of the owner, a mining claim passes tothe heir. Lohmann v. Helmer, ( 1900) 104 Fed. 178.

A verbal option cannot create an interest in a miningclaim. Grand Prize Hydraulic Mines v. Boswell, ( 1917) 83

Or 1, 17, 151 P 368, 162 P 1063.

Oral evidence of an agreement to purchase a mining claimis inadmissible. Hinderliter v. McDonald, ( 1917) 84 Or 251,

254, 164 P 378.

Cotenancy in a mining claim does not make the tenantsjoint venturers. Suitter v. Thompson, ( 1960) 225 Or 614, 358

P2d 267.

Confirmation of sale on execution of placer mining claimsand pipe lines and tools thereon in one unsegregated bid

and for a lump sum was erroneous, since the judgmentdebtor may redeem realty but not personalty. RoseburgNat. Bank v. Camp, ( 1918) 89 Or 67, 173 P 314; Dixie Mead- ows Independence Mines Co. v. Knight, ( 1935) 150 Or 395,

45 P2d 909.

517.090

NOTES OF DECISIONS

An interest in a ditch used for mining purposes must betransferred by deed. Mattis v. Hosmer, ( 1900) 37 Or 523, 62 P 17, 632.

Oral proof of an agreement to purchase an interest in

a mining claim is inadmissible. Hinderliter v. McDonald, 1917) 84 Or 251, 254, 164 P 378.

517.210

NOTES OF DECISIONS

Where assessment work by a prior locator has not beendone within the claim' s limits, the claim is subject to relo-

cation. Wagner v. Dorris, ( 1903) 43 Or 392, 73 P 318.

Failure to perform the annual labor on a claim does notwork a forfeiture, and the original locator's claim is not

divested until there has been a peaceable entry for perfecting a relocation. Cooperative Copper Co. v. Law, ( 1913) 65Or 250, 132 P 521.

The burden of providing a forfeiture for failure to do thework required is upon the party asserting such forfeiture, and a finding against forfeiture by the trial court will notbe disturbed on appeal unless the evidence clearly fails tosupport it. Kramer v. Taylor, ( 1954) 200 Or 640, 266 P2d709.

517. 540

517.220

NOTES OF DECISIONS

A showing that no proof of performance of assessmentwork was filed constituted prima facie evidence that thework was not done. Schlegel v. Hough, ( 1947) 182 Or 441,

186 P2d 516, 188 P2d 158.

517.300


517.420

NOTES OF DECISIONS

The State Land Board is not authorized to execute miningleases on lands held by State Highway Commission. StateHwy. Comm. v. Rawson, ( 1957) 210 Or 593, 312 P2d 849.

Discovery gives the claim owner the right to so muchof the surface of the claim as is necessary to him to exploithis discovery. Coos Bay Tbr. Co. v. Bigelow, ( 1961) 228 Or467, 365 P2d 619.

The owner of a mining claim on the public domain ac- quires no right to the surface of the land until he makes

a discovery. Id.

ATTY. GEN. OPINIONS: Lands upon which mining leasesmay be executed by board, 1952 -54, p 149; application ofgeneral mining laws to extracting gold from ocean beaches, 1954 -56, p 109; State Land Board making rules as to mineralleases on the ocean shore, 1956 -58, p 109; application ofmining lease statutes to lands reforested with forest rehabilitation funds, 1958 -60, p 353; authority of State LandBoard to lease offshore lands for oil exploration, 1960 -62,

p 99; construing " right to lease" in subsection ( 2); authorityto determine right, 1966 -68, p 110.

517.430

ATTY. GEN. OPINIONS: Application of mining lease statutes to lands reforested with forest rehabilitation funds,

1958 -60, p 353; authority of State Land Board to lease offshore lands for oil exploration, 1960 -62, p 99.

517.510 to 517.550

ATTY. GEN. OPINIONS: Respective powers of board and

Department of Environmental Quality, ( 1970) Vol 35, p 29.

517.520



517.530



517.540



519

SUPERSEDED

Chapter 520

Conservation of Gas and Oil

520.095

ATTY. GEN. OPINIONS: Starting date of two -year periodunder subsection ( 2), 1958 -60, p 238.

so520

SUPERSEDED

Chapter 526

Forestry Administration

Chapter 526

ATTY. GEN. OPINIONS: Disposition of rents and royalties

from mining lease on reforested land, claims against lesseefor tree damage, 1958 -60, p 353; timber reservation, 1962 -64, p 44; authority to revise sale price under state bid saletimber contract, 1962 -64, p 107; authority to establish reserves for capital improvements from forest patrol assess-

ments, 1962 -64, p 227; disposition of revenue received fromsale of blowdown timber, 1962 -64, p 352; limitations on StateForester's authority to sell timber, 1962 -64, p 356; authorityof board to sell land acquired under ORS 530.010, 1966 -68,

p 493.

526.005

CASE CITATIONS: Sproul v. State Tax Comm., ( 1963) 234Or 579, 383 P2d 754

ATTY. GEN. OPINIONS: Liability of forest lands for as-

issessments levied by State Forester for fire protection whenland is located in a forest protection district and also in

a rural fire protection district, 1958 -60, p 215; " board" construed, 1964 -66, p 178.

526.010

ATTY. GEN. OPINIONS: Terms of members of board of

forestry as affected by change of Governors, 1938 -40, p 124; validity of restricting appointments to nominees of unoffi- cial group, 1964- 66, p 178.

526.031


526.041

ATTY. GEN. OPINIONS: Liability of forestry departmentfor expense of fighting and extinguishing forest fire, whichoccurred on property of a company which did not patrolits forest lands, 1928 -30, p 423; power of state femster toexamine tax rolls and list owners of timber and fire hazard

land whose fire patrol assessments are delinquent, and tonotify them as to their liability, 193436, p 755; same personserving as administrator of Forest Protection and Conser- vation Committee and executive assistant to assistant for-

ester, 1960 -62, p 296; necessity for competitive bidding, 196466, p 77.

526.046

ATTY. GEN. OPINIONS: Construing effect of conveyancefor forestry purposes," 1964 -66, p 398.

526.060

ATTY. GEN. OPINIONS: Limitation on expenditure of

funds derived under Ore. Const. Art. XI -E, 1958 -60, p 410; distribution of revenue received from sale of blowdown

timber, 1962 -64, p 351.

526. 111

AM. GEN. OPINIONS: Custodian of bonds or securities

covering the revolving fund, 1948 -50, p 273; expenditureswhen funds to reimburse are exhausted, 1960 -62, p 370.

526. 121

ATTY. GEN. OPINIONS: Custodian of bonds or securities

covering the revolving fund, 1948 -50, p 273; expenditureswhen funds to reimburse are exhausted, 1960 -62, p 370.

526. 168


W1.1I' I

ATTY. GEN. OPINIONS: Distribution of revenue received

from sale of blowdown timber, 1962 -64, p 351; necessity forcompetitive bidding, 1964 -66, p 77.

526.305 to 526.370

ATTY. GEN. OPINIONS: Liability of forest lands for assessments levied by State Forester for fire protection whenland is located in a forest protection district and also in

a rural fire protection district, 1958 -60, p 215.

526.310

ATTY. GEN. - OPINIONS: Rights of county as to forest landspreviously deeded to the state, 1956 -58, p 75.

526.324


Or 579, 383 P2d 754.

526.340


Or 579, 383 P2d 754.

526.350


Or 579, 383 P2d 754.

526.360

ATTY. GEN. OPINIONS: Supervision by forester of burningof inflammable material, 1936 -38, p 559.

521

SUPERSEDED

526.805

526.805 526.835

ATTY. GEN. OPINIONS: Restricting sale of state -owned ATTY. GEN. OPINIONS: Restricting sale of state -ownedtimber, 1960 -62, p 186. 1 timber, 1960 -62, p 186.

522

is

SUPERSEDED

Chapter 527

Insect and Disease Control; Forest Practices

is523

unit, authority of State Forester to issue conservation harvesting permits on federally owned land, 1960 - 62, p 89; proposed constitutional tax limit, ( 1968) Vol 34, p 203.

527. 610

ATTY. GEN. OPINIONS: Authority to require logging operator to again plant lands where tree survival was poor,

1958 - 60, p 185; application of Forest Conservation Act tofederally owned land, 1960 - 62, p 89.


527. 700

ATTY. GEN. OPINIONS: Notice of violation final unless

modified or vacated, 1960 - 62, p 89.

527. 990


1958 - 60, p 185; application of Forest Conservation Act tofederally - owned land, 1960 - 62, p 89.

Chapter 527

ATTY. GEN. OPINIONS: Prequalification of bidders for

aerial spraying, 1962 -64, p 13.

527.310 to 527.400



LAW REVIEW CITATIONS: 1 WLJ 417; 2 WLJ 248.

527.510 to 527.540



527.610 to 527.730

ATTY. GEN. OPINIONS: " Completion of harvesting operations" including burning of slashing, 1940 -42, p 458, effectof substitute plan under prior similar statute, notice of

violation final unless modified or vacated, -reduction of cash

deposit or surety bond involving more than one harvesting

is523

unit, authority of State Forester to issue conservation harvesting permits on federally owned land, 1960 - 62, p 89;

proposed constitutional tax limit, ( 1968) Vol 34, p 203.

527. 610


1958 - 60, p 185; application of Forest Conservation Act tofederally owned land, 1960 - 62, p 89.


527. 700

ATTY. GEN. OPINIONS: Notice of violation final unless

modified or vacated, 1960 - 62, p 89.

527. 990


1958 - 60, p 185; application of Forest Conservation Act tofederally - owned land, 1960 - 62, p 89.

SUPERSEDED

Chapter 530

Acquisition and Development of State Forests

Chapter 530



from mining lease on reforested land, claims against lesseefor tree damage, 1958 -60, p 353; effect of legislation to curepossible defects in title to forest lands acquired from coun-

ties, 1960 -62, p 326; validity and effect of county reservationof timber rights, 1962 -64, p 44; authority to revise sale pricein state bid sale timber contract, 1962 -64, p 107; dispositionof net receipts from Elliott State Forest and Common

School Forest Lands, 1962 -64, p 285; authority to enterlong -term timber sale contract, 1962 -64, p 356; authority forproposed exchange of lands with the State Highway Com- mission, 1964 -66, p 181; authority of board to sell landacquired under ORS 530.010, 1966 -68, p 493.

530.010 to 530. 170


from mining lease on reforested land, claims against lesseefor tree damage, 1958 -60, p 353; authority of board to sellland acquired under ORS 530.010, 1966 -68, p 493.

530.010

ATTY. GEN. OPINIONS: Distribution of funds relating tothe acquisition, management and exchange of forest lands,

1944 -46, p 257; board's authority to grant mining leases, 1952 -54, p 149; claim of county as to forest lands previouslydeeded to the state, 1956 -58, p 75; use of bond proceeds, 1956 -58, p 80; locating mineral claims on state land, 1956 -58, p 109; authority to enter long -term timber contract, 1962 -64, p 356; acceptance of deed if title contains a condition whichmay cause forfeiture, 1962 -64, p 485; use of highway fundsby department, ( 1969) Vol 34, p 464.

530.020

ATTY. GEN. OPINIONS: Authority to enter long -termtimber sale contract, 1962 -64, p 356; liquor restriction as acondition of title, 1962 -64, p 485.

530.030

ATTY. GEN. OPINIONS: Necessity of contract betweencounty and state, 1956 -58, p 75; effect of title defects, 1960- 62, p 326; authority to enter long -term timber sale contract, 1962 -64, p 356; acceptance of deed if title contains a condi= tion which may cause forfeiture, 1962 -64, p 485.

530.040

ATTY. GEN. OPINIONS: Forest lands exchanged by StateBoard of.Forestry, notwithstanding that state forest development revenue bonds issued in exchange for the land are

not retired, 1942 -44, p 469; authority to enter long -term

timber sale contract, 1962 -64, p 356; liquor restriction as acondition of the title, 1962 -64, p 485; reviewing proposal toexchange land, 1964 -66, p 181.

530.050


ATTY. GEN. OPINIONS: Necessity of contract betweencounty and state, 1956 -58, p 75; authority to enter long -termtimber contract, 1962 -64, p 356.


530.055


530.059

NOTES OF DECISIONS

A timber sale contract was not made when the biddingclosed. Eugene Stud & Veneer, Inc. v. State Bd. of Forestry,

1970) 3 Or App 20, 469 P2d 635.

ATTY. GEN. OPINIONS: Authority to revise timber contract, 1962 -64, p 107; authority to enter long -term timbercontract, 1962 -64, p 356.

530. 110


ATTY. GEN. OPINIONS: Authority of forestry board tocontract with Clatsop County to supervise removal oftimber owned by county from land belonging to board andaccept 10 percent of gross receipts of sale of timber and

use such funds for payment of expenses of such service

or deposit them in General Fund in State Treasury, 1942 -44, p 231; necessity of contract between county and state, 1956 -58, p 75; timber reservation, 1962 -64, p 44; countydistribution formula for revenue from state forest lands,

1962 -64, p 482; use of highway funds by department, ( 1969) Vol 34, p 464.

530. 120

ATTY_ GEN. OPINIONS: What constitutes a legal subdivi-

sion, 194214, p 53; necessity of contract between countyand state, 1956 -58, p 75.

530.150


524

SUPERSEDED

530. 170

ATTY. GEN. OPINIONS: Claim of county as to forest landspreviously deeded to the state, 1956 -58, p 75.

530.210 to 530.290


from mining lease on reforested land, claims against lesseefor tree damage, 1958 -60, p 353; limitation on expenditureof funds derived under Ore. Const. Art. XI -E, 1958 -60, p410; use of sinking fund for general purposes, ( 1969) Vol34, p 464.

530.230

ATTY. GEN. OPINIONS: Use of bond proceeds, 1956 -58,

p 80.

530.240


p 80; limitation on expenditure of funds derived under Ore. Const. Art. XI -E, 1958 -60, p 410.

530.280


p 80; agreement requiring lessee of forest lands subject tobonded indebtedness to pay for damage to area, 1958 -60, p 353; use of sinking fund for general purposes, ( 1969) Vol34, p 464.

530.290

ATTY. GEN.. OPINIONS: Use of sinking fund for generalpurposes, ( 1969) Vol 34, p 464.

530.450 to 530.520

ATTY. GEN. OPINIONS: Status of Oregon' s title to certain

530.520

lands, 1964 -66, p 100; use of highway funds by department, 1969) Vol 34, p 464.

530.480

ATTY. GEN. OPINIONS: Determining state interest in particular lands, 1958 -60, p 249.

530.490

ATTY. GEN. OPINIONS: Acreage and other limitations on

leasing authority of State Land Board, 1960 -62, p 237; timbersale receipts as revenue, 1962 -64, p 285; considerations ofState Land Board in granting mining lease, 1966 -68, p 110.


530.500

ATTY. GEN. OPINIONS: Timber sale receipts as revenue,

1962 -64, p 285; use of highway funds by department, ( 1969) Vol 34, p 464.


530.510

ATTY, GEN. OPINIONS: Disposition of net receipts from

Elliott State Forest and Common School Forest Lands,

1962 -64, p 285.

530.520

ATTY. GEN. OPINIONS: Timber sale receipts as revenue,

1962 -64, p 285; disposition of receipts from Elliott StateForest and Common School Forest Lands, ( 1970) Vol 34,

p 1131.

525

SUPERSEDED

Chapter 532

Branding of Forest Products and Booming Equipment; Log Patrols

532.010 to 532. 190


532.010

ATTY. GEN. OPINIONS: Title to sunken logs on beds ofstate waters, 195456, p 123.


532.020


532.030


532.040

ATTY. GEN. OPINIONS: Title to sunken logs on beds ofstate waters, 1954 -56, p 123.


532. 130


532.510 to 532.710

ATTY. GEN. OPINIONS: Issuance of stickers with renewal

licenses. fees, 1964 -66, p 90.


532.520


532.980

ATTY. GEN. OPINIONS: Issuance of stickers with renewal

licenses, fees, 1964 -66, p 90.

LAW REVIEW CITATIONS: 2 WU 350; 5 WLI' 519.

526

I 1

SUPERSEDED

Chapter 536

State Engineer; State Water Resources Board

Chapter 536

CASE CITATIONS: Warner Valley Stock Co. v. Lynch, 1959) 215 Or 523, 336 P2d 884.

ATTY. GEN. OPINIONS: Agreement to hold United States

free from damages caused by river construction works asan invalid loan of state credit, 1956 -58, p 50; manner andmethod of water resources study, 1956 -58, p 299; power ofstate to regulate nuclear power installations, ( 1970) Vol 34,

p 996.


536.010

NOTES OF DECISIONS

See also cases under ORS 537. 160.

ATTY. GEN. OPINIONS: State Engineer' s authority to install equipment for the purpose of preventing wastage ofunderground waters from uncapped wells, 1952 -54, p 146.

536.030

ATTY. GEN. OPINIONS: Duties of State Engineer as to

underground water, 1952 -54, p 146.

536.050

CASE CITATIONS: Pacific Livestock Co. v. Cochran, (1914) 73 Or 417, 430, 144 P 668.

ATTY. GEN. OPINIONS: Game commission as exempt from

payment to state of fees prescribed by statute, 1922 -24, p147; exaction by State Engineer of fees in advance fromUnited States, 1926 -28, p 135; recording fees for filing noticesof contest of claims filed with State Engineer relative to

rights to waters of streams, 1936 -38, p 117; refunding filingfees upon denial of application, 193& 40, p 379; fees onBureau of Land Management applications received prior to

1961 amendment, 1960 -62, p 254.

536.065

NOTES OF DECISIONS


1. Under former similar statuteDismissal of appeal from State Engineer' s order deter-

mining water rights was proper where order only designated land by numbers of permits and application numberand actual location of land was not shown. Santiam Recla- mation Co. v. Porter, ( 1928) 126 Or 91, 267 P 820, 268 P980.

The findings of the State Engineer were entitled to thepresumption of correctness. Broughton's Estate v. Central

Ore. Irr. Dist., (1940) 165 Or 435, 101 P2d 425, 108 P2d 276.

In granting the right to appeal, the legislature did notconfer judicial power on the State Engineer. Id.

FURTHER CITATIONS: Warner Valley Stock Co. v. Lynch, 1959) 215 Or 523, 336 P2d 884.

536.210 to 536.560

NOTES OF DECISIONS

The sections establishing the Water Resources Boardwere not intended to supersede the laws governing issuanceand priorities of water rights certificates. Phillips v.

Gardner, ( 1970) 2 Or App 423, 469 P2d 42.

LAW REVIEW CITATIONS: 45 OLR 284; 47 OLR 49 -51.

536.210

ATTY. GEN. OPINIONS: Classifying ground water, 1960 -62, p 426.

536.220

CASE CITATIONS: Phillips v. Gardner, ( 1970) 2 Or App423, 469 P2d 42.

ATTY. GEN. OPINIONS. Facts relevant to water resources

study, 1956 -58, p 299; classifying ground water, 1960 -62, p426.

LAW REVIEW CITATIONS: 45 OLR 278, 279; 3 WLJ 382.

536.230

ATTY. GEN. OPINIONS: Validity of law creating board tobe appointed by the Governor, 1954 -56, p 96.


536.240

ATTY. GEN. OPINIONS: Same person serving as memberof State Water Resources Board, as manager and secretaryof irrigation district and as county judge, 1958 -60, p 308.

536.300

ATTY. GEN. OPINIONS: Formulation of water resources

program, 1956 -58, p 299; classifying ground water, 1960 -62, p 426.

LAW REVIEW CITATIONS: 45 OLR 279, 282, 285; 3 WLJ

280, 382.

53& 310


527

SUPERSEDED

536.320

ATTY. GEN. OPINIONS: Facts relevant to water resources



384, 387.

536.320


ATTY. GEN. OPINIONS: Same person serving as memberof State Water Resources Board, as manager and secretaryof irrigation district and as county judge, 1958 -60, p 308.

536.330

CASE CITATIONS: Phillips. v. Gardner, ( 1970) 2 Or App423, 469 P2d 42.


536.340

ATTY. GEN. OPINIONS: Facts relevant to water resources


536.350

ATTY. GEN. OPINIONS: Construing statement of statewater resources policy, 1956 -58, p 299.

l- t-1f_;I °_il

ATTY. GEN. OPINIONS: Construing statement of statewater resources policy, 1956 -58, p 299; classifying groundwater, 1960 -62, p 426.

536.370

ATTY. GEN. OPINIONS: Construing statement of statewater resources policy, 1956 -58, p 299; application of Ad- ministrative Procedures Act' to notice acid hearing requirements, 1958 -60, p 282; classifying ground water as a restriction to particular uses, 1960 -62, p 426.

536.380

ATTY. GEN. OPINIONS: Manner and method of water

resources study, 1956 -58, p 299; application of Administra- tive Procedures Act to notice and hearing requirements, 1958 -60, p 282; classification of ground waters as a restriction to particular uses, 1960 -62, p 426.

536.390


resources study, 1956 -58, p 299; classification of groundwaters as a restriction to particular uses, 1960 -62, p 426.

538.400


resources study, 1956 -58, p 299.

536.410



536.420

ATTY. GEN. OPINIONS. Construing proposed ColumbiaInterstate Compact, 1964 -66, p 146.

536.440

ATTY. GEN. OPINIONS: Manner and method of -water

resources study, 1956 -58, p 299.

536.450


536.470

ATTY. GEN. OPINIONS: Agreement to hold United States

free from damages caused by river construction works asan invalid loan of state credit, 1956 -58, p 50.

536.560


528

l u

SUPERSEDED

Chapter 537

Appropriation of Water Generally

Chapter 537

CASE CITATIONS: Smyth v. Jenkins, ( 1956) 208 Or 92, 299

P2d 819; Warner Valley Stock Co. v. Lynch, ( 1959) 215 Or523, 336 P2d 884; Fitzstephens v. Watson, ( 1959) 218 Or 185,

344 P2d 221.

LAW REVIEW CITATIONS: 36 OLR 197, 241-, 3 WLJ 295- 316.

537.010

CASE CITATIONS: Federal Power Comm. v. Oregon, (1955) 349 US 435, 453, 75 S Ct 832, 843, 99 L Ed 1215, 1229; Phillips

v. Gardner, ( 1970) 2 Or App, 423, 469 P2d 42.

AM. GEN. OPINIONS: Authority of State Engineer in theprevention of wastage, 1952 -54, p 146.


537. 110 to 537.320


537.110

NOTES OF DECISIONS

The water flowing over the public domain is a partthereof, and the general government may grant or otherwise dispose of -its riparian interest separate from the rest

of the estate. Hough v. Porter, ( 1909) 51 Or 318, 95 P 732, 98 P 1083,' 102 P 728.

This section was not unconstitutional as denying dueprocess of law under U.S. Const. Amend. XIV, §1. Re HoodRiver, ( 1925) 114 Or 112, 115, 227 P 1065.

Water escaping from a city reservoir and allowed to findits way to the natural level of the country is subject toappropriation. Vaughan v. Kolb, ( 1929) 130 Or 506, 280 P

518.

FURTHER CITATIONS: Eldredge v. Mill Ditch Co., ( 1919)

90 Or 590, 598, 177 P 939; California -Ore. Power Co. v. Beaver Portland Cement Co., ( 1934) 73 F2d 555.

LAW REVIEW CITATIONS: 25 OLR 160; 30 OLR 257; 2WLJ 345 -351.

537. 120


After water has been diverted from a natural stream into

ditches or other artificial works, it becomes personal property and cannot be appropriated. Vaughan v. Kolb, ( 1929) 130 Or 506, 280 P 518.

It is debatable whether, subsequent to 1909, an appro-

priation can be initiated by adverse use or in any other

529

manner not prescribed by statute. Tudor v. Jaca, ( 1945) 178Or 126, 164 P2d 680.

If a prior appropriator desires to enlarge his appropria-

tion, he must make a new appropriation, but such new

appropriation will be inferior to all intervening rights. Id. Subsequent appropriators may insist that prior appro-

priations are not enlarged, if the enlargement interferes withtheir rights. Id.

A prior appropriator cannot claim or use more water than

is reasonably necessary for the purpose of his appropriation. Id.

Abandonment, as applied to an appropriation, is an in-

tentional relinquishment of a known right. Id.

Forfeiture of a water right is involuntary or forced lossthereof because of appropriator's or owner's failure to per-

form some act required by statute. Id. Claims to vested rights are to. be adjudicated by the

statutory procedure and that adjudication is final, subjectto appeal. Calderwood v. Young, ( 1957) 212 Or 197, 315 P2d561, 319 P2d 184.

Where water escaped from irrigation district lands to the

natural flow of a river, no one could rightfully take thesame from the river, except by appropriation. Jones v. Warmsprings Irr. Dist., ( 1939) 162 Or 186, 91 P2d 542.

Water escaping from a United States irrigation projectby deep percolation was of public character even as againstthe United States. United States v. Waimsprings Irr. Dist.,

1941) 38 Fed Supp 239.

2. Riparian ownershipA riparian owner's right to the natural flow of the stream

substantially undiminished has been abrogated. Califor- nia -Ore. Power Co. v. Beaver Portland Cement Co., ( 1934)

7372d 555, affirmed ( 1935) 295 US 142, 55 S Ct 725, 79 LEd 1356.

There is no such thing as prior riparian ownership so faras distribution of water for irrigation purposes betweenriparian owners is concerned. Hough v. Porter, ( 1909) 51Or 318, 95 P 732, 98 P 1083, 102 P 728.

Conceding that title to bed of stream which is- navigablein fact is in riparian owners, they do not own the wateritself, but only the use of it as it flows by their property. Guilliams v.,Beaver Lake Club, ( 1918) 90 Or 13, 175 P 437.

Riparian owner of land, abutting on both banks of aslough, is entitled to have water flow as it is naturallyaccustomed to flow. Stephens v. Eugene, ( 1918) 90 Or 167,

175 P 855. Where defendants had made no appropriation of the

water in controversy, and all the parties based their rightsthereto as riparian owners, the decree was predicated uponthat ground. Pacific Livestock Co. v. Davis, ( 1911) 60 Or

258, 119 P 147.

FURTHER CITATIONS: Re Hood River, (1925) 114 Or 112,

227 P 1065; Re Willow Creek, ( 1926) 119 Or 155, 236 P 487,

237 P 682, 239 P 123; Staub v. Jensen, ( 1947) 180 Or 682, 178 P2d 931; Gardner v. Dollina, ( 1955) 206 Or 1, 288 P2d

796; Warner Valley Stock Co. v. Lynch, (1959) 215 Or 523, 336 P2d 884.

SUPERSEDED

537. 130

LAW REVIEW CITATIONS: 36 OLR 193, 204, 215, 221, 241;

2 WLJ 345; 3 WLJ 339, 342.

537. 130

NOTES OF DECISIONS

It is debatable whether, subsequent to 1909, an appro-

priation of water can be initiated by adverse use, or in anyother manner than under the statutory procedure. Tudorv. Jaca, ( 1945) 178 Or 126, 164 P2d 680.

State Engineer' s determination of questions of fact isentitled to great weight on appeal. Appleton v. Ore. Iron

Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366 P2d 174.

A dam constructed not for the purpose of impoundingwaters in Greaser Lake but to reclaim land in south Warner

Valley by confining and directing the waters was not aviolation of this section. Warner Valley Stock Co. v. Lynch,

1959) 215 Or 523, 336 P2d 884.

Part of the ownership of defendant's grantor consistedof the riparian right to use the waters in the watercourse

flowing from a spring on the land to the extent that usedid not confect with superior rights derived through the

water code, and this interest could be conveyed to plaintiff.

Fitzstephens v. Watson, ( 1959) 218 Or 185, 344 P2d 221.

FURTHER CITATIONS: Gardner v. Wright, ( 1907) 49 Or609, 91 P 286; Watts v. Spencer, ( 1908) 51 Or 262, 94 P 39;

Williams v. Altnow, ( 1908) 51 Or 275, 95 P 200, 97 P 539;

Davis v. Chamberlain, ( 1908) 51 Or 304, 98 P 154; Hough

v. Porter, ( 1909) 51 Or 318, 95 P 732, 98 P 1083, 102 P 728; Re Hood River, ( 1924) 114 Or 112, 174, 227 P 1065; Califor-

nia -Ore. Power Co. v. Beaver Portland Cement Co., ( 1934)

73 F2d 555; Gardner v. Dollina, ( 1955) 206 Or 1, 288 P2d

796; Smyth v. Jenkins, ( 1956) 208 Or 92, 299 P2d 819; Dayv. Hill, ( 1965) 241 Or 507, 406 P2d 148; Phillips v. Gardner,

1970) 2 Or App 423, 469 P2d 42.


537. 140

NOTES OF DECISIONS

Under a former similar statute, where appropriations and

improvements were made in good faith, the fact that the

map filed showing the route of the ditch did not show theprecise line of the ditch did not destroy its sufficiency. ReWillow Creek, ( 1915) 74 Or 592, 633, 144 P 505, 146 P 475.

Failure to file map on completion of a pipe line underformer similar statute did not defeat appropriation. State

v. People' s W. Coast Hydro -Elec. Corp., ( 1929) 129 Or 475,

278 P 583.

A map of record and notice of appropriation for reclamation are notice to subsequent appropriators of the contemplated appropriation. Re Deschutes River, (1930) 134 Or 623,

286 P 563, 294 P 1049.

Notice and map which an appropriator of water for irrigation is required to file marks the limit of the proposedenterprise. Id.

FURTHER CITATIONS: Phillips v. Gardner, 2 Or App 423, 469 P2d 42.

AM. GEN, OPINIONS: Authority of State Engineer toaccept and file an application for permit to appropriatewater which has been withdrawn from appropriation,

1936 -38, p 161; right of alien to secure a permit to appropriate water, 1932 -34, p 38; engineer's authority to acceptapplication for permit to appropriate water withdrawn from

appropriation by legislative Act, 1936 -38, p 161.

537.150

NOTES OF DECISIONS

The right given by a permit is merely a contingent rightwhich may ripen into a complete appropriation, or may bedefeated by the failure of the holder to comply with theterms of the statute. Morse v. Gold Beach Water, Light &

Power Co., ( 1938) 160 Or 301, 84 P2d 113.

FURTHER CITATIONS: Re Deschutes River, ( 1930) 134 Or623, 286 P 563, 294 P 1049; Re White. River, ( 1933) 141 Or

504, 16 P2d 1109.

537. 160

NOTES OF DECISIONS


Where no cause has been shown by an applicant to entitlehim to an extension of time, the action of the State Engineer

and the circuit court in refusing to grant an extension willbe affirmed by the Supreme Court. Re White River, ( 1936) 155 Or 148, 62 P2d 22.

Commencement of work by the appropriator is the condition on which a permit is issued. If he does not do so, it is fatal to the completion of the appropriation, although

reasonable diligence was exercised after the one year

period. Morse v. Gold Beach Water, Light & Power Co.,

1938) 160 Or 301, 84 P2d 113. Although the statute does not state the amount of work

required within the year following date of approval of application, it is the reasonable intendment of the statute that

the construction work must be so substantial in character

as to manifest good faith and the intent to exercise reasonable diligence in the completion of the project. Id.

The State Engineer' s discretion as to extension of time

has no application to the mandatory terms of the statuterequiring actual construction work to begin on a projectwithin one year from date of approval of the application

for a permit. Id.

Where the plans for defendant' s proposed project were

approved by the State Engineer, he must have found thatthe proposed use would not prejudicially affect the publicinterest. State Game Comm. v. Beaver Portland Cement Co.,

1942) 169 Or 1, 124 P2d 524, 126 P2d 1094.

A permit was properly canceled by the State Engineer, where construction work was not seriously commencedwithin the one year period, and it was shown that the

purpose of the permit holder was more to deprive the competitor of water than to obtain water for his own system.

Morse v. Gold Beach Water, Light & Power Co., ( 1938) 160

Or 301, 84 P2d 113.

The State Engineer's approval of plans for reconstruction

of a hydroelectric project amounted, in the game commis-

sion' s suit for injunction, to findings that the reconstructionwould not change the use of the water from that set forth

in the original applications, that it would not conflict with

determined water rights, and would not menace public

safety and welfare. The approval did not determine thatcommercial and game fishing would or would not be affected. State Game Comm. v. Beaver Portland Cement Co.,

1942) 169 Or 1, 124 P2d 524, 126 P2d 1094.

FURTHER CITATIONS: Re Hood River, ( 1925) 114 Or 112,

227 P 1065.

ATTY. GEN. OPINIONS: Duty to hold hearing in approvalor rejection of application, 1954 -56, p 122.

537. 170

ATTY. GEN. OPINIONS: State game or fish commission

filing claims for appropriation of water for propagation and

530

SUPERSEDED

protection of fish, 1940 -42, p 58; game commission' s remedywhere riparian owner attempts to drain lake, 194042, p 485.

LAW REVIEW CITATIONS: 46 OLR 245; 3 WLJ 280, 384,

385.

537. 180

NOTES OF DECISIONS

Since an appeal was not taken therefrom, the decisionof the State Engineer was final. Re Walla Walla River,

1933) 141 Or 492, 502, 16 P2d 939.

FURTHER CITATIONS: Warner Valley Stock Co. v. Lynch, 1959) 215 Or 523, 336 P2d 884.

ATTY. GEN. OPINIONS: Duty to hold hearing in approvalor rejection of application, 1954 -56, p 122.

537. 185

NOTES OF DECISIONS

Under former similar statute failure to appeal from the

State Engineer's order made it final. Oakes v. Dickson,

1960) 225 Or 95, 357 P2d 385.

FURTHER CITATIONS: Smyth v. Jenkins, ( 1956) 208 Or

92, 299 P2d 819; Warner Valley Stock Co. v. Lynch, ( 1959) 215 Or 523, 336 P2d 884; Cleaver v. Judd, ( 1964) 238 Or 266, 393 P2d 193.

ATTY. GEN. OPINIONS: Duty to hold hearing in approvalor rejection of application, 195456, p 122.

537. 190


537.210

ATTY. GEN. OPINIONS: Effect of failure to mail indorsed

application to applicant, 1954 -56, p 210.

537.220

CASE CITATIONS: Green v. Wheeler, ( 1969) 254 Or 424, 458 P2d 938.

537.230

NOTES OF DECISIONS

State Engineer had authority to waive failure to requestextension of time for completion of work. Smyth v. Jenkins,

1956) 208 Or 92, 299 P2d 819.

537.240

CASE CITATIONS: Smyth v. Jenkins, ( 1956) 208 Or 92, 299P2d 819.

537.250

NOTES OF DECISIONS

Where the appropriator has performed all of the acts

which are incidental to the acquisition of a water right,

the perfected right is considered to have existed from thedate of the initial act. Re Hood River, ( 1925) 114 Or 112,

114, 227 P 1065.

Water or the right thereto is not separated from the land

by the making of an application for and obtaining a permitand certificate of water right, even though the water right

537.300

certificate is recorded separately from the deeds to the land. Skinner v. Silver, ( 1938) 158 Or 81, 75 P2d 21.

A certificate is conclusive only against a person whoseright is " subsequent in priority." Cleaver v. Judd, ( 1964) 238 Or 266, 393 P2d 193.

Water right certificate, not the permit, even when fol-

lowed by a beneficial use, marks the point at which a waterright becomes vested. Green v. Wheeler, ( 1969) 254 Or 424,

458 P2d 938, cert. denied, 397 US 990.

FURTHER CITATIONS: Pacific Livestock Co. v. Cochran,

1914) 73 Or 417, 432, 144 P 688; California -Ore. Power Co.

v. Beaver Portland Cement Co., ( 1934) 73 F2d 555; Smyth

v. Jenkins, ( 1956) 208 Or 92, 299 P2d 819; Phillips v. Gardner,

1970) 2 Or App 423, 469 P2d 42.


537.260

NOTES OF DECISIONS

State Engineer had authority to waive failure to requestextension of time for completion of work. Smyth v. Jenkins, 1956) 208 Or 92, 299 P2d 819.

Under this statute the State Engineer is vested with awide discretion. Id.

A certificate is conclusive only against a person whoseright is subsequent in priority. Cleaver v. Judd, ( 1964) 238Or 266, 393 P2d 193.

The permit was inchoate and not vested until the permit -

tee fully complied with all the statutory specifications. Green v. Wheeler, ( 1969) 254 Or 424, 458 P2d 938, cert.

denied, 397 US 990.

537.270

NOTES OF DECISIONS

A certificate is conclusive only against a person whoseright is " subsequent in priority." Cleaver v. Judd, ( 1964) 238 Or 266, 393 P2d 193.

In an action involving the right to use the waters of acreek, a water right certificate issued pursuant to a decree

in a former action adjudicating the rights of predecessorsin interest, though entitled to evidentiary effect, was regarded as embodying the conditions and limitations of thedecree upon which it was based, and as subject to anymodifications which might result from judicial interpreta-

tion of such conditions or limitations. Tudor v. Jaca, ( 1946)

178 Or 126, 164 P2d 770.


537.290

ATTY. GEN. OPINIONS: Authority of State Engineer toissue a certificate to the United States without the 50 years'

limitation contained in this section, 1932 -34, p 375; authorityof State Engineer to eliminate statutory provisions fromwater right certificates issued to the Federal Government,

1936 -38, p 440.

537.300

NOTES OF DECISIONS

The primary reservoir permit contemplates a storage ofwater in some locality where it can be utilized for irrigation. The secondary permit contemplates that users of the watershall acquire a permanent ownership by agreement withthe owner for a specified quantity of the stored water forthe needs of and use upon his land. Cookinham v. Lewis,

1911) 58 Or 484, 491, 114 P 88, 115 P 342.

531

SUPERSEDED

537.310


537.310

LAW REVIEW CITATIONS: 46 OLR 159; 3 WLJ 279

537.410

CASE CITATIONS: Re White River, ( 1936) 155 Or 148, 62

P2d 22.

537.420

CASE CITATIONS: Smyth v. Jenkins, ( 1956) 208 Or 92, 299

P2d 819; Cleaver v. Judd, ( 1964) 238, Or 266, 393 P2d 193.

537.505 to 537.795

ATTY. GEN. OPINIONS: Crediting on new application offees collected by State Engineer for issuing permit for appropriation of underground waters, 1926 -28, p 252; amountof fees to be collected by State Engineer on applicationsfor permits to appropriate underground water, 1930 -32, p61; authority of State Engineer to issue permits for appropriation of underground waters east of Cascade Mountains,

1930 -32, p 695; State Engineer' s authority to issue permitsfor appropriation of underground waters, 194042, p 635; issuance of certificate if use violated statutes, 1958 -60, p25.

LAW REVIEW CITATIONS: 47 OLR 229 -236; 3 WLJ 317-

335.

537.525


537.575

ATTY. GEN. OPINIONS: Approval of applications under

former law, 1954 -56, p 117.

537.585 .

ATTY. GEN. OPINIONS: Issuance of certificate if use vio-

lated statutes, 1958 -60, p 25.

537.595

ATTY. GEN. OPINIONS: Issuance of certificate if use vio-

lated statutes, 1958 -60, p 25.

537.605

ATTY. GEN. OPINIONS: Persons entitled to certificates of

registration, 1958 -60, p 25.

537.615

NOTES OF DECISIONSApplicant for water right is charged with the knowledge

of the requirements imposed by th0 statutes in perfectinga water right. Green v. Wheeler, ( 1969) 254 Or 424, 458 P2d

938, cert. denied, 397 US 990.

SYK ? 7

ATTY. GEN. OPINIONS: Authority of State Engineer in theprevention of wastage, 1952 -54, p 146.

537.625

NOTES OF DECISIONS

If the requirements for perfection of an appropriation are

not met, the State Engineer may cancel a permit in accordance with the procedure in ORS 537.260. Green v. Wheeler,

1969) 254 Or 424, 458 P2d 938, cert. denied, 397 US 990.


lowed by a beneficial use, marks the point at which a waterright becomes vested. Id.

537.630

NOTES OF DECISIONS

Applicant for water right, not the State Engineer, has

the duty to see that the requirements for perfecting a waterright have been fulfilled. Green v. Wheeler, ( 1969) 254 Or424, 458 P2d 938, cert. denied, 397 US 990.


lowed by a beneficial use, marks the point at which a waterright becomes vested. Id.

537.635

NOTES OF DECISIONS

Assignee who failed to file assignment with State Engi-

neer could not complain of lack of notice regarding cancellation of permit. Green v. Wheeler, ( 1969) 254 Or 424, 458P2d 938, cert. denied, 397 US 990.

ksyk,

ATTY. GEN. OPINIONS: Investigation of underground

water supply, 195456, p 117.

537.730


537.735


537.775


537.800

NOTES OF DECISIONS

1. In general2. Appropriation

3. Permit to appropriate water4. Landowner's right

1. In general

This statute, together with Ore. Const. Art. 1, § 18, had

the effect of limiting the common -law riparian rights. Min- ton v. Coast Property Corp., ( 1935) 151 Or 208, 46 P2d 1029.

Springs and seepage water therefrom were part and par-

cel of the land itself. The right, title and interest therein

passed by virtue of a mortgage and foreclosure proceedingsthereunder. Skinner v. Silver, ( 1938) 158 Or 81, 75 P2d 21.

2. Appropriation

The right of appropriation of the waters of a spring doesnot differ from the right of appropriation of the waters of

a flowing stream. Brosnan v. Hams, ( 1901) 39 Or 148, 65P 867.

The prior appropriator of the waters of a spring will beas much protected as the appropriator of the waters of a

532

SUPERSEDED

stream. Brosnan v. Harris, ( 1901) 39 Or 148, 65 P 867; Hilde-

brandt v. Montgomery, ( 1925) 113 Or 687, 234 P 267. Waters flowing through a gulch, and derived from melt-

ing snows and springs, are subject to appropriation. Bormanv. Blackmon, ( 1911) 60 Or 304, 310, 118 P 848.

Waste water escaping from a city reservoir and allowedto find its way to the natural level of the country is subjectto appropriation under this section regardless of a contract

entered into by the city for disposition thereof. Vaughanv. Kolb, ( 1929) 130 Or 506, 280 P 518.

S Permit to appropriate water

A person needs no permit to use the seepage water which

arises upon his own land. Barker v. Sonner, ( 1931) 135 Or75, 294 P 1053.

A permit from the State Engineer to appropriate water

does not authorize a trespass upon private land to obtainsuch water, and a court will not assist the taking of suchwater and confirm the trespass. Minton v. Coast PropertyCorp., ( 1935) 151 Or 208, 46 P2d 1029.

4. Landowner's right

The landowner may prevent spring water from passingoff his own land. Morrison v. Officer, ( 1906) 48 Or 569, 87P 896.

A' spring having no overflow and but little seepage be- longs exclusively to the landowner, and other owners haveno right to appropriate the water thereof. Henrici v. Paul- son, ( 1929) 128 Or 514, 274 P 314; Henrici v. Paulson, ( 1930)

134 Or 222, 293 P 424.

The filing upon the water of springs before the StateEngineer, and obtaining a permit and certificate, have onlythe effect of protecting the right of the owner of the landto the water in case there should be an increase of the flowfrom the springs so as to pass -from the land in question

533

537.990

to other lands. Skinner v. Silver, ( 1938) 158 Or 81, 75 P2d

21.

Spring or seepage waters, which are not public waters, may be filed for only by the owner of the land. Id.

The legislature has the power to provide that the person

upon whose land the seepage or spring waters first arisehas the right to the use of such waters. Id.

Where waters leaving a spring on owner's land flow intoa watercourse, which does not leave owner's land before

emptying into another watercourse, the waters are subjectto appropriation and the owner has no preference overother persons. Fitzstephens v. Watson, ( 1959) 218 Or 185,

344 P2d 221.

FURTHER CITATIONS: David v. Brokaw, ( 1927) 121 Or

591, 256 P 186; Klamath Dev. Co. v. Lewis, ( 1931) 136 Or445, 299 P 705; Staub v. Jensen, ( 1947) 180 Or 682, 178 P2d

931.

ATTY. GEN. OPINIONS: Application for appropriation of

irrigation district' s waste waters, 1940 -42, p 153.


537.810


537.990

ATTY. GEN. OPINIONS: Authority of State Engineer in theprevention of wastage, 1952 -54, p 146; issuance of certificateif use violated statutes, 1958 -60, p 25.

SUPERSEDED

Chapter 538

Withdrawal of Certain Waters from

Appropriation; Special Municipal and

County Water Rights

Chapter 538


538. 110 to 538.300


538. 140


538. 170

ATTY. GEN. OPINIONS: Authority of game commissionto appropriate water from Crystal Springs for experimental

studies in fish, 1940 -42, p 103.

538. 190


538.200

CASE CITATIONS: State v. Hawk, ( 1922) 105 Or 319, 218

P 709; State v. Peoples Hydro- Elec. Corp., ( 1929) 129 Or

475, 278 P 583; Withers v. Reed, ( 1952) 194 Or 541, 243 P241

283.


538.210

CASE CITATIONS: State v. Mohler, ( 1925) 115 Or 562 „ 237P 690, 239 P 193; Mohler v. Fish Comm., ( 1929) 129 Or

302, 276 P 691; Withers v. Reed, ( 1952) 194 Or 541, 243 P2d283.

538.270

ATTY. GEN. OPINIONS: Vested water rights as not affect-

ed by subsequent legislation, 1948 -50, p 403.

538.300

ATTY. GEN. OPINIONS: Determination of meaning of "existing rights,” 1954 -56, p 210.

538.410 to 538.450

LAW REVIEW CITATIONS: 3 WLJ 283, 296, 297, 318, 341.

538.430

CASE CITATIONS: Rowley v. City of Medford, ( 1930) 132Or 405, 285 P 1111.

534

l u

SUPERSEDED

Chapter 539

Determination of Water Rights Initiated

Before February 24, 1909

Chapter 539

NOTES OF DECISIONS

When-applicant for a permit to construct water reservoirs

filed its application and objectors filed protests with State

Engineer, hearing was held, order rejecting applicationmade, applicant served notice of appeal and filed transcriptwith circuit court and State Engineer certified exhibits and

transcripts, the procedure was sufficient to give the court

jurisdiction to reexamine the issues, subject to certain limi-

tations. Warner Valley Stock Co. v. Lynch, ( 1959) 215 Or523, 336 P2d 884.

FURTHER CITATIONS: Appleton v. Ore. Iron & Steel Co.,

1961) 229 Or 81, 358 P2d 260, 366 P2d 174.

LAW REVIEW CITATIONS: 36 OLR 212; 3 WLJ 296, 297,

318.

539.010

NOTES OF DECISIONS

1. In general

2. Quantity3. Time of appropriation

4. Notice


1. In general

The statutes providing for the appropriating of surpluswaters do not permit any infringement of any water rightobtained before their enactment. Pringle Falls Power Co.

v. Patterson, ( 1913) 65 Or 474, 484, 128 P 820, 132 P 527; Re Willow Creek, ( 1915) 74 Or 592, 602, 144 P 505, 146 P475.

A vested right could be acquired in waters which season-

ally overflow the land. Eastern Ore. Land Co. v. WillowRiver L. & I. Co., ( 1912) 119 CCA 437, 201 Fed 203, 215.

Under the pre - existing law, notice of an appropriationof water was essential to the acquisition of water rights

as against the claims of subsequent appropriators. Re Sil-

vies River, ( 1925) 115 Or 27, 101, 237 P 322.

A homestead patent from the United States did not carrywith it the common -law rights which attach to riparian

proprietorship. California Ore. Power Co. v. Beaver PortlandCement Co., ( 1935) 295 US 142, 55 S Ct 725, 79 L Ed 1356.

The use of waters of a spring conferred upon the usera vested right to the water. Brosnan v. Harris, ( 1901) 39

Or 148, 65 P 867, 87 Am St Rep 649, 54 LRA 628.

2. QuantityEvery riparian owner, regardless of the date of settlement,

is entitled to the quantity of water reasonably essential tohis domestic use and for the watering of.his stock, includingsufficient supply for the proper irrigation of such gardenproduce as is essential to the proper sustenance of his

family. Hough v. Porter, ( 1909) 51 Or 318, 95 P 732, 98 P1083, 102 P 728.

Where a mill company had a right to divert water for

power purposes and did not need the water during certainsummer months, and had never used it at that time, it had

no right to the water during those months. Re NorthPowder River, ( 1915) 75 Or 83, 93, 144 P 485, 146 P 475.

Where the deliverable quantity was determined, an irrigation company could not lawfully contract to deliver tothe water user a greater amount. Re Willow Creek, ( 1926)

119 Or 161, 236 P 487, 763, 237 P 682, 239 P 123. The amount of water to which an appropriator was enti-

tled for irrigation purposes was governed by the amountof water necessary for the land cultivated, not exceedingthe amount awarded, and no more. Broughton v. Stricklin,

1934) 146 Or 259, 28 P2d 219, 30 P2d 332.

3. Time of appropriation

If the State Engineer denies an application for extension

of time, the appropriator may appeal to the circuit courtwhere the matter must be in the form of a justiciable con-

troversy between adverse parties. Broughton' s Estate v. Cent. Ore. Irr. Dist., ( 1940) 165 Or 435, 101 P2d 425, 108

P2d 276.

The State Engineer' s order granting an extension of timewithin which to complete appropriation of water to a bene-

ficial use was a " final order" from which an appeal would

lie. Id.

Abandonment does not arise from nonuse while perform-

ing necessary work to perfect the right, if the work iscommenced within the time required. Appleton v. Ore. Iron

Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366 P2d 174.

Subsection ( 6) cures the defect for failure to file a mapas required in 1906. Id.

Where delay was occasioned by injunction, the rights ofthe irrigation company were not affected. Re Silvies River, 1925) 115 Or 27, 31, 237 P 322.

The provisions of this section regarding the time withinwhich the full amount of water appropriated should be

applied to a beneficial use were not applicable to CareyAct land reclaimed under a contract with the state. Re

Deschutes River, ( 1930) 134 Or 623, 286 P 563, 294 P 1049.

An extension of time to applicants to complete the appropriation of inchoate water rights was properly grantedby the State Engineer. Broughton' s Estate v. Cent. Ore. Irr. Disk, ( 1940) 165 Or 435, 101 P2d 425, 108 P2d 276.

The findings of the State Engineer on an application for

a time extension were presumed correct. Id.

Although application for an extension of time was unop- posed, the State Engineer must examine the facts and grant

or deny the application. Id. The State Engineer did not act arbitrarily in allowing two

years' extension in view of the large investment and litigation involved. Id.

Under the circumstances of the times, 1906 to 1910, the

appropriator proceeded with reasonable diligence to do the

work necessary to perfect his appropriation. Appleton v. Ore. Iron & Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366P2d 174.

4. Notice

Subsection ( 6) applies only where there has been a mis-

535

SUPERSEDED

539.020

take, and not where the notice expresses the intention. Re

Umatilla River, ( 1918) 88 Or 376, 168 P 922, 172 P 97.

FURTHER CITATIONS: Laurance v. Brown, ( 1919) 94 Or

387, 185 P 761; Norwood v. Eastern Ore. Land Co., ( 1924)

112 Or 106, 117, 227 P 1111; Dill v. Killip, ( 1944) 174 Or 94, 147 P2d 896.

LAW REVIEW CITATIONS: 36 OLR 204, 205, 241; 2 WLJ

345.

539.020

NOTES OF DECISIONS

The water code does not deny due process of law underU.S. Const., Am. 14, § 1. Pacific Livestock Co. v. Lewis,

1915) 241 US 440, 36 S Ct 637, 60 L Ed 1084.

The court, in classifying lands according to nature of soil, and ascertaining the amount of water sufficient for variousclasses of land, may properly treat the matter of seepageand evaporation. Re Umatilla River, ( 1918) 88 Or 376, 168

P 922, 172 P 97.

Board of Control [now State Engineer] did not have jurisdiction to supervise the distibution of water before priorities

had been determined. Wattles v. Baker Co., ( 1911) 59 Or

255, 117 P 417.

A suit brought in the circuit court to restrain an irrigation

district from interfering with the natural flow of water ina stream was tantamount to a petition addressed directlyto the water board [ now State Engineer]. Oregon Lbr. Co.

v. East Fork Irr. Dist., ( 1916) 80 Or 568, 572, 157 P 963.

FURTHER CITATIONS: Re Willow Creek, ( 1915) 74 Or 592, 613, 144 P 505, 146 P 475; Amalgamated Sugar Co. v. Hempe,

1915) 226 Fed 1012; Re Sucker Creek, ( 1917) 83 Or 228, 163

P 430; Byers v. We- Wa -Ne, ( 1917) 86 Or 617, 169 P 121; Re

Chewaucan River, ( 1918) 89 Or 659, 669, 171 P 402, 175 P

421; Pacific Livestock Co. v. Balcombe, ( 1921) 101 Or 233, 199 P 587; Squaw Creek Irr. Dist. v. Mamero, ( 1923) 107

Or 291, 294, 214 P 889; Re Hood River, ( 1924) 114 Or 112,

126, 227 P 1065; Hutchinson v. Stricklin, ( 1934) 146 Or 294,

28 02d 295; Califomia -Ore. Power Co. v. Beaver PortlandCement Co., ( 1935) 295 US 142, 55 S Ct 725, 79 L Ed 1356;

Dill v. Killip, (1944) 174 Or 94, 147 P2d 896; Beisdel v. Wood, 1947) 182 Or 66, 185 P2d 570; Gardner v. Dollina, ( 1955)

206 Or 1, 288 P2d 796.

ATTY. GEN. OPINIONS: Authority of State Engineer toregulate distribution of water when the rights of users have

not been adjudicated, 1948 -50, p 378.

LAW REVIEW CITATIONS: 5 OLR 91; 36 OLR 212; 3 WLJ342.

539.030


539.040

NOTES OF DECISIONS

Prescribing notice by registered mail is within the prov- ince of the legislature. Re Willow Creek, ( 1915) 74 Or 592,

620, 144 P 505, 146 P 475.

The notice is sent to the person' s postoffice address. Id.

539.050

NOTES OF DECISIONS

Claimant who filed statement was an adverse party tobe served with notice of appeal from the decree of the ciruit

court. Re Chewaucan River, ( 1918) 89 Or 659, 171 P- 402, 175 P 421.

539.060

CASE CITATIONS: Re Althouse Creek, ( 1917) 85 Or 224, 162 P 1072; Re Chewaucan River, ( 1918) 89 Or 659, 670, 171 P 402, 175 P 421.

NOTES OF DECISIONS

Before the 1947 amendment, in so far as this section

exempted from payment claimants having permits issuedunder Acts of 1909, the law was not discriminatory. PacificLivestock Co. v. Cochran, ( 1914) 73 Or 417, 430, 144 P 668.

Payment of fees by claimant under protest, in proceedingsinstituted in order that he might establish his claim and

not suffer a forfeiture thereof, was not voluntary so as topreclude him from subsequently suing to recover the sameon the ground that the fees exacted were illegal. Id.

FURTHER CITATIONS: Re Deschutes River, (1930) 134 Or623, 286 P 563, 294 P 1049.

ATTY. GEN. OPINIONS: Exaction by State Engineer of feesin advance from the United States, 1926 -28, p 135; right ofstate to tax exercise of right for use of water covered

thereby, 1928 -30, p 620; recording fees for filing notices ofcontest of claims with State Engineer relative to rights to

waters of streams, 1936 -38, p 117; fees for recordation ofcertificate of water rights, 1948 -50, p 330.

539. 100

NOTES OF DECISIONS

Failure to contest a claim under this section did not

preclude an aggrieved party from filing exceptions. ReNorth Powder River, ( 1915) 75 Or 83, 144 P 485, 146 P 475,

539. 120

CASE CITATIONS: Masterson v. Pac. Livestock Co., ( 1933)

144 Or 396, 24 P2d 1046; Staub v. Jensen, ( 1947) 180 Or 682, 178 P2d 931; Gardner v. Dollina, ( 1955) 206 Or 1, 288 P2d796.

539. 130

NOTES OF DECISIONS

The decasion of the State Engineer, if not appealed from, becomes final. Re Walla Walla River, ( 1933) 141 Or 492, 502, 16 P2d 939.

The State Engineer' s determination of the facts of the

extent of the use is entitled to great weight on appeal. Appleton v. Ore. Iron & Steel Co., ( 1961) 229 Or 81, 358P2d 260, 366 P2d 174.

FURTHER CITATIONS: Masterson v. Pac. Livestock Co.,

1933) 144 Or 396, 24 P2d 1046; Warner Valley Stock Co. v. Lynch, ( 1959) 215 Or 523, 336 P2d 884.

539. 140

NOTES OF DECISIONS

A certificate is conclusive only against a person whosewater right is subsequent in priority. Cleaver v. Judd, ( 1964) 238 Or 266, 393 P2d 193.

FURTHER CITATIONS: Re Deschutes River, (1930) 134 Or

623, 286 P 563, 294 P 1049; Smyth v. Jenkins, ( 1956) 208Or 92, 299 P2d 819.

536

SUPERSEDED

ATTY. GEN. OPINIONS: Fees for recordation of certificate

of water rights, 1948 -50, p 330.

4ki:1 KII

NOTES OF DECISIONSThe procedural provisions of the statute are valid. Pacific

Livestock Co. v. Lewis, ( 1916) 241 US 440, 36 S Ct 637, 60

L Ed 1084.

The appellate court will consider only errors which areshown with reasonable certainty to have been prejudicial. Re Silvies River, ( 1925) 115 Or 27, 31, 237 P 322.

Where contestants have made no objections to a priorityclaim, as set out in the amended application of contestees,

the court' s decree allowing the prior claim cannot be ques- tioned on appeal. Re Owyhee River, ( 1928) 124 Or 44, 259

P 292.

The circuit court is a court of general jurisdiction, in

determining the right to use water of a stream. The proceedings are like those of a suit in equity except that anyproceedings including the entry of the decree may be hadin vacation with the same force and effect as in term time. Abel v. Mack, ( 1930) 131 Or, 586, 283 P 8.

The function of an adjudication under the Water Code

is primarily to allocate definite quantities of water on thebasis of a prior or contemplated use. California -Ore. PowerCo. v. Beaver Portland Cement Co., ( 1934) 73 F2d 555.

The circuit court, whether in reviewing the State Engi- neer' s determination or in making an original dispositionof the suit, is not acting in an administrative capacity; itsdeterrrunation is res judicata as to all parties and issues

properly before it IdThe enactment of ORS 19.026 ( 1) did not result in a repeal

of this section by express provision or implication. Appletonv. Ore. Iron & Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366

P2d 174.

Motion to dismiss appeal because of omission from thenotice of appeal of names of a water users' association was

filed too late. Re Willow Creek, ( 1925) 119 Or 155, 177, 236P 487, 763, 237 P 682, 239 P 123.

Where no objection was made in the circuit court to

showing of priority in amended application claiming waterrights, application was to establish prima facie case of the

truth of the priority claim. Re Owyhee River, ( 1928) 124Or 44, 259 P2d 292.

After obtaining jurisdiction in a suit for application toconstruct water reservoirs, the circuit court was empowered

to exercise the powers of a court of equity in reviewingthe determination of the State Engineer, and could reexam-

ine de novo the findings of the State Engineer to the extentthere was no usurpation of the legislative function. Warner

Valley Stock Co. v. Lynch, ( 1959) 215 Or 523, 336 P2d-894. In exercising his equity powers, a trial judge was privi-

leged to rely on those findings within the State Engineer' sspecial competence. Id.

539.170

ATTY. GEN. OPINIONS: The State Engineer' s order deter-

mining the area of land reclaimed and irrigated as conclusive until modified by a decree of the circuit court, 1940-42p 8; duty of State Engineer to regulate distribution of water, 1948 -50, p 378. -

539. 190

NOTES OF DECISIONS

One who has not appealed from the decree may notinvoke the jurisdiction of the Supreme Court by way of

539.210

a new investigation to revise the decree. Re Umatilla River, 1918) 88 Or 376, 168 P 922, 172 P 97.

A- decree entered in the circuit court on mandate from

the Supreme Court after appeal is final except as to matters

resubmitted under the mandate, subject only to the special

statutory provisions authorizing the circuit court on certainapplications to grant a rehearing. Re Silvies River, ( 1927) 122 Or 47, 257 P 693.

An application within six months after determination of

an appeal is within time. Oliver v. Jordan Valley Land & Cattle Co., ( 1931) 137 Or 243, 1 P2d 1097.

A water user is a " party interested" in respect of the rightto apply for a rehearing, although not a party to a formerappeal from a determination of the right to waters of the•

stream of which he is a user. Id.

Service of notice, as required by this section, upon theinterested parties confers upon the court jurisdiction of the

application for rehearing. Id. All water users are entitled to notice of rehearing where

allowance of the petition may affect their rights. Id. One of the reasons for this section is to correct the de-

scriptions of ditches or clerical errors occurring by an over- sight or vagueness of expression. Id.

That the notices were not mailed " forthwith" was not

an objection to a rehearing where the time consumed wasbecause of a change in judges and other reasons and where

after a rehearing was allowed the claimant acted promptly

in sending out notices. Id.

539.200

NOTES OF DECISIONS

A 1929 decree adjudicating water rights in Warner Valleysubordinated the rights of the lower owner to the rights

of the upper owners, although the latter were not parties

to the proceeding. Warner Valley Stock Co. v. Lynch, ( 1959) 215 Or 523, 336 P2d 884.

LAW REVIEW CITATIONS: 3 WW 343.

539.210

NOTES OF DECISIONS

All controversies on matters which existed before entryof a decree, and were or could have been litigated in anearlier determination are settled and not open to question

by any of the parties to the litigation or their privies. Adamsv. Perry, ( 1941) 168 Or 132, 119 P2d 581.

The determination of the State Engineer, as confirmed

or modified by the court, is conclusive as to all prior andexisting rights. Bull v. Siegrist, ( 1942) 169 Or 180, 126 P2d832.

An adjudication under the water code awarding defendants certain water rights did not conclude plaintiff from

asserting rights as adverse user where adverse use beganprior to the code and plaintiff received no notice of pen-

dency of adjudication, even if she had actual knowledge. Staub v. Jensen, ( 1947) 180 Or 682, 178 P2d 931.

Filing of an application for permit did not constitute anabandonment of plaintiff's rights by adverse-user, the lawpresumes the contrary. Id.

537

FURTHER CITATIONS: Ebel[ v. City of Baker, ( 1931) 137Or 427, 299 P 313.

ATTY. GEN. OPINIONS: Duty of State Engineer to regulatedistribution of water, 1948 -50, p 378.


SUPERSEDED

Chapter 540

Distribution of Water; Watermasters; Change

in Use, Transfer or Abandonment of Water Rights

Chapter 540

NOTES OF DECISIONS

When a state agency exercising a power granted to itby the legislature undertakes to appropriate any of thewaters of the state it must do so pursuant to the provisions

of the water code, and in a controversy with a privateowner of water the state is subject to the rules of law thatgovern the rights of the private litigant. Withers v. Reed,

1952) 194 Or 541, 243 P2d 283.


540.010 to 540. 150


540.010

CASE CITATIONS: Gardner v. Dollina, ( 1955) 206 Or' l, 288P2d 796.

540.020

CASE CITATIONS: Wattles v. Baker County, ( 1911) 59 Or255, 260, 117 P 417; Masterson v. Kennard, ( 1932) 140 Or288, 12 P2d 560; State v. Stewart, ( 1939) 163 Or 585, 96 P2d220; Gardner v. Dollina, ( 1955) 206 Or 1, 288 P2d 796; Smythv. Jenkins, ( 1956) 208 Or 92, 299 P2d 819,

ATTY. GEN. OPINIONS: Watermaster's status as prevent-

ing his owning irrigated land or receiving pecuniary aidfrom an irrigation company, 1930 -32, p 504; appointmentof a watermaster as discretionary with State Engineer, 1940 -42, p 201.

40.050

NOTES OF DECISIONS

The State Engineer has no authority to enter into anagreement whereby he would accept a conveyance of awater right which water right is to be retransferred, if as

a result of an investigation he concludes that an irrigation

project would not be feasible. Rowley v. City of Medford, 1930) 132 Or 405, 285 P II11.

The State Engineer properly granted an extension of timeto applicants to complete the appropriation of inchoate

water rights, where the only opposition was offered by anirrigation district which had hindered the applicants in thedevelopment of water rights. Broughton's Estate v. Cent.

Ore. Irr. Dist., ( 1940) 165 Or 435, 101 P2d 425, 108 P2d 276.

FURTHER CITATIONS: Wattles v. Baker County, ( 1911) 59 Or 255, 117 P 417.

AM. GEN. OPINIONS: Authority of State Engineer tomake reasonable regulations to secure equal and fair dis-

tribution of water, 1922 -24, p 672; appointment of water-

master as discretionary with State Engineer, and engineerand assistants as having same authority as watermasters, 1940 -42, p 201, duty of State Engineer to regulate distribution of water, 1948 -50, p 378.

540.040

NOTES OF DECISIONS

1. In generalA watermaster must preserve priorities and quantities of

irrigation water, consistent with the highest duty of water, as applied to all concerned. Nault v. Palmer, ( 1920) 96 Or538, 190 P 346.

For an erroneous construction of a decree determiningwater rights, a watermaster may not be held liable in damages. Norwood v. E. Ore. Land Co., ( 1932) 139 Or 25, 5 P2d1057, 7 P2d 996.

A decree declaring that a certain amount of water shallnot be taken as granting that specific amount to any wateruser, but shall only be taken as a rule and guide for thewatermaster in the distribution of a maximum amount to

any water user, was improper in view of subsections ( 1) and ( 2). Re Umatilla River, ( 1918) 88 Or 376, 168 P 922, 172 P 97.

The watermaster and an appropriator changing the application or use of water pursuant to an ex parte void order

of the State Water Board [ now State Engineer] were jointtortfeasors. Norwood v. E. Ore. Land Co., ( 1932) 139 Or 25,

5 P2d 1057, 7 P2d 996.

Although no statutory provision appeared to authorizethe cancellation of a water right certificate and the issuance

of a new one where its terms were affected by judicialinterpretation of the decree upon which it was based, it

was required that the watermaster in regulating the divisionand use of the waters involved, under the direction of the

State Engineer, should be governed by the court' s interpretation. Tudor v. Jaca, ( 1946) 178 Or' 126, 165 P2d 770.

2. Subsection ( 3) Before the 1953 amendment, an adjudication of water

rights governed the action of the watermaster. Unless a

party could show such a right, he was not protected indiverting or using water by an authorization by the water - master. Brosnan v. Boggs, ( 1921) 101 Or 472, 198 P 890.

Before the 1953 amendment, the watermaster was an

administrative officer whose duty it, was to distribute wateraccording to the decree adjudicating water rights. Norwoodv. E. Ore. Land Co., ( 1932) 139 Or 25, 5 P2d 1057, 7 P2d996.

Suit for injunction against watermaster was not an appropriate means to quiet title to water rights. Calderwood

v. Young, ( 1957) 212 Or 197, 315 P2d 561, 319 P2d 184.

3. Subsection ( 5)

An unauthorized use of water constitutes waste which

the watermaster is authorized to prevent. Squaw Creek Irr. Dist. v. Manero, ( 1923) 107 Or 291, 214 P 889.

The watermaster is duty bound to prevent unreasonable

538

P_.

1 u

SUPERSEDED

waste. Bennett v. Salem & Guenther, ( 1951) 192 Or 531, 235

P2d 772.

To prevent waste of water, the watermaster should haveclosed the headgates or arranged the apparatus which was

in use. Broughton v. Stricklin, ( 1934) 146 Or 259, 28 P2d219, 30 •P2d 332.

FURTHER CITATIONS: Krebs v. Perry, ( 1930) 134 Or 290, 292 P 319, 293 P 432; State v. Stewart, ( 1939) 163 Or 585,

96 P2d 220. -

ATTY. GEN. OPINIONS: Duty of State Engineer to regulatedistribution of water, 1948 -50, p 378.


540.060

CASE CITATIONS: State v. Chandler, ( 1925) 113 Or 652,

654, 234 P 266.

540.080

NOTES OF DECISIONS

An " emergency" within the meaning of this section, enti- tling a watermaster to claim for services of assistants, wasshown. Brewster v. Crook County, ( 1916) 81 Or 435, 439, 159 P 1031.

540. 140

NOTES OF DECISIONS

The priorities established by this section were supersededby the adoption of the 1909 Water Act setting forth thedoctrine of prior appropriation. Phillips v. Gardner; ( 1970)

2 Or App 423, 469 P2d 42.


540.210

LAW REVIEW CITATIONS: 3 WLJ 296, 297

540.=


540.230


540.310 to 540.440


40.350

ATTY. GEN. OPINIONS: Action against irrigation district

for flood damage, 1960 -62, p 204.

540.420

CASE CITATIONS: McPhee v. Kelsey, ( 1903) 44 Or 193, 74P 401, 75 P 713; Carnes v. Dalton, ( 1910) 56 Or 596, 110

P 170; Ison v. Sturgill, ( 1910) 57 Or 109, 109 P 579, 110 P535.

540.510 to 540.550


540.530

540.510

NOTES OF DECISIONS

Riparian rights were not affected by the adoption of thissection. Norwood v. E. Ore. Land Co., ( 1924) 112 Or 106,

227 P 1111.

Requiring water to remain appurtenant to the land uponwhich it is used is a valid exercise of the legislative powersto regulate the distribution of the waters of the state. Broughton v. Stricklin, ( 1934) 146 Or 259, 28 P2d 219, 30P2d 332.

FURTHER CITATIONS: Cabell v. Fed. Land Bank, ( 1943)

173 Or 11, 144 P2d 297; Dill v. Killip, ( 1944) 174 Or 94, 147P2d 896.


540.520

NOTES OF DECISIONS

A water right may be transferred separately from the landto which iris appurtenant. Haney v. Neace -Stark Co., ( 1923) 109 Or 93, 216 P 757, 219 P 190.

A water right appurtenant to land for irrigation is not

inseparable from the land. Re Deschutes R., ( 1930) 134 Or

623, 286 P 563, 294 P 1049.

This section should be given a reasonable construction. Id.

A change in the place of use of water by an appropriatorcannot be made if the change injuriously affects others. Hutchinson v. Stricklin, ( 1934) 146 Or 285, 28 P2d 225.

Water made appurtenant to one tract cannot be lawfullyused on a detached tract, even though owned by the sameperson, without the approval of the State Engineer.

Broughton v. Stricklin, ( 1934) 146 Or 259, 28 P2d 219, 30

P2d 332.

A person making an appropriation has a vested right andcan enjoin another having prior appropriation rights fromchanging his manner, method and period of, appropriationwithout the consent of the State Engineer. Oliver v. Skinner

Lodge, ( 1951) 190 Or 423, 226 P2d 507.

Application to the State Engineer was a condition prece-

dent under this statute to the exercise of the right to change

the place of the use of water from that specified by thedecree in a proceeding for the adjudication of water rights: Broughton v. Stricklin, ( 1934) 146 Or 259, 28 P2d 219, 30

P2d 332.

An arrangement between a milling company and upperirrigators whereby during the specified period the companywould refrain from demanding water to which it was entitled, so as to make it available to the upper irrigators, would

result in a change of place of use of the company' s waterwithin the meaning of this section. Hutchinson v. Stricklin,

1934) 146 Or 285, 28 P2d 225.

ATTY. GEN. OPINIONS: Authority to return filing fee forwhich no service has been performed and no expense in-

curred, 1938 -40, p 503; application to store instead of usingwater, 1950 -52, p 206.

40.530

NOTES OF DECISIONS

An application of an irrigation company for the privilegeof transferring its rights to water stored for irrigation tothe extent of the amount allowed per acre should be al-

lowed. Re Willow Creek, ( 1915) 74 Or. 592, 144 P 505, 146

P 475.

539

SUPERSEDED

540.610

540.610 to 540.650


40.610

NOTES OF DECISIONS

1. In general

Priority of right to water extends only to what is neededfor the use for which the water has been appropriated. ReUmatilla R., ( 1918) 88 Or 376, 168 P 922, 172 P 97; Broughton

v. Strlcklin, ( 1934) 146 Or 259, 277, 28 P2d 219, 30 P2d 332. A decree of the circuit court in proceedings to determine

the right to use water of the stream for irrigation purposes

is res adjudicata upon the question of abandonment: Abel

v. Mack, ( 1930) 131 Or 586, 283 P 8.

Beneficial use is the limit of the right to the use ofwater

in Oregon. Re Deschutes R., ( 1934) 148 Or 389, 36 P2d 585.

All wasting of water should be suppressed by the courtin adjudicating water rights. Id.

It is the duty of a watermaster, or of those who adminis- ter a decree relating to water rights, to allocate the waterso there will be no waste thereof. Id.

An appropriator of water shall not divert more water than

is actually put to use, reasonable transmission losses excepted. Bennett v. Salem, ( 1951) 192 Or 531, 235 P2d 772.

Findings of the lower court that plaintiff failed to use

the water were approved because plaintiff had no way ofdiverting water for his use even if it had been available, which he denied. Day v. Hill, ( 1965) 241 Or 507, 406 P2d148.

2. Applicability to stateIn the opening phrase of this section, the legislature

declared that this statute was passed for the public good;

therefore, the state is not exempt from the provisions ofthis section under the maxim, nullum tempus. Withers v. Reed,. ( 1952) 194 Or 541, 243 P2d 283.

The state, as the owner of a water right, is referred to

in the term " all rights" and is subject to the provisions ofthis section. Id.

Where land with a watenright appurtenant was acquiredby the state,by default, of the mortgagor upon a mortgageto the World War Veterans' State Aid Commission in 1932,

the state lost the water right when it failed to use the water

during its 13 years of ownership. Id.

The terms of this section constituted a condition of the

right held by the state's predecessor in interest, and whenthe state succeeded to the ownership of the land with itsappurtenant water right, it took it burdened with the obligation which this section imposes: and subject to the loss

of the right should the obligation not be fulfilled. Id. '

3. Applicability to Irrigation districtIn determining whether an irrigation district is bound by

this section, the maxim, nullum tempus, would not apply. Withers v. Reed, ( 1952) 194 Or 541, 243 P2d 283.

FURTHER CITATIONS: Smyth v. Jenkins, ( 1956) 208 Or92, 299 P2d 819.


540.710 to 540.750


540.710

CASE CITATIONS: Calderwood v. Young, ( 1957) 212 Or197, 315 P2d 561, 319 P2d 184.

540.720


540.740

NOTES OF DECISIONS

Taking of water under a void order of the State WaterBoard [ now State Engineer] was a continuing trespass, which equity could enjoin under this section. Norwood v. E. Ore. Land Co., ( 1924) 112 Or 106, 227 P 1111.

Suit for injunction against watermaster was not an appropriate means to quiet title to water rights. Calderwood

v. Young, ( 1957) 212 Or 197, 315 P2d 561, 319 P2d 184.

40.990

LAW REVIEW CITATIONS: 40 OLR 37; 3 WLJ 297. -

540

JJ

SUPERSEDED

C Chapter 541

Miscellaneous Provisions on Water Rights, Usesand Protection

41. 010

NOTES OF DECISIONS

A mutual ditch company organized for the sole purposeof transmitting and delivering to appropriators and ownersof the water the quantity to which each is entitled is not

general corporation," a " public service corporation," or

common carrier." Eldredge v. Mill Ditch Co., ( 1919) 90

Or 590, 177 P 939.

A corporation organized for profit for the purpose of

supplying water to all persons whose lands lie within reachof its ditch is the owner of the use of the water appropriat-

ed. A mutual ditch corporation organized for the purpose

of carrying water to its stockholders is simply the agentof the appropriator to carry his water to where he makesthe beneficial use. Re Walla Walla River, (1933) 141 Or 492, 16 132d 939.

A private corporation appropriating water for rental orirrigation was not a public utility without some act ofdedication of water so appropriated to public use. De Pauw

Univ. v. Public Serv. Comm., ( 1917) 247 Fed 183, ( 1918) 253

Fed 848.

Irrigation company was not a public utility. Central Ore. Irr. Co. v. Public Serv. Comm., ( 1921) 101 Or 442, 196 P

832.

Use of water by particular individuals was not a publicuse. Smith v. Cameron, ( 1922) 106 Or 1, 210 P 716.

FURTHER CITATIONS: Re Hood River, ( 1925) 114 Or 112, 227 P 1065; Eastern Ore. Land Co. v. Willow River Land

Irr. Co., ( 1913) 204 Fed 516; United States v. HumboldtLovelock Irr. Co., ( 1938) 97 172d 38, 44.


541.030

ATTY. GEN. OPINIONS: Procedure for acquiring right ofway for an irrigation ditch over land owned by state, 1924- 26, p 537.

b7! 1Rik']

NOTES OF DECISIONS

One who charged that seepage from an irrigation com-

pany's ditch was injuring his land was required to assumethe burden of proving that the water escaped from thedefendant's ditch. Taylor v. Farmers' Irr. Co., ( 1917) 82 Or701, 162 P 973.

Evidence did not entitle plaintiff to a remedy by way ofinjunction. Id.

LAW REVIEW CITATIONS: 8 OLR 89; 1 WLJ 346, 348, 351.

541.080

NOTES OF DECISIONS

The court, in a suit involving inceptive rights to divert

541

the waters of a river, would only determine the right asbetween the parties claiming as appropriators; it would notdetermine the extent of the right that may be, obtained. Pringle Falls Power Co. v. Patterson, ( 1913) 65 Or 474, 483,

128 P 820, 132 P 527.

541. 110

NOTES OF DECISIONS

Surplus waters of the streams of the state may be utilizedby corporations which are engaged in the business of furnishing electrical power. Grand Ronde Elec. Co. v. Drake, 1905) 46 Or 243, 78 P 1031.

The right of a prior appropriator of waters for mininguse cannot be encroached upon through the summer season

by subsequent appropriation for irrigation purposes. ReRogue River, ( 1921) 102 Or 60, 201 P 724.

It is the state's policy to protect migratory fish and alsoto permit and encourage the use of waters for the development of electric power, neither of which may be disregarded. State Game Comm. v. Beaver Portland Cement Co.,

1942) 169 Or 1, 124 P2d 524, 126 P2d 1094.

Where plans for defendant' s proposed project were filed

with the State Engineer and by him approved, he must havefound that the use proposed would not prejudicially affectthe public interest. Id.


541. 120

NOTES OF DECISIONS

Use of ditch by city in common with individual membersof irrigation district was not illegal. Butler & Thompson

Co. v. City of Ashland, ( 1924) 109 Or 683, 222 P 346.

541.220 to 541. 250


541. 250

ATTY. GEN. OPINIONS: Transfer of land by State LandBoard to United States, 1922 -24, p 71, 1956 -58, p 252; conveyance by State Land Board of right of way over state landfor ditches, canals and reservoir sites for irrigation purposes

to the United States, 1922 -24, p 662.


541. 240

ATTY. GEN. OPINIONS: Transfer by State Land Board toUnited States, 1956 -58, p 252.

541.310

CASE CITATIONS: Gardner v. Dollina, ( 1955) 206 Or 1, 288P2d 796.

SUPERSEDED

541. 320


E" il[ KI

NOTES OF DECISIONS

Having jurisdiction for one purpose, equity could retainjurisdiction for the determination of all issues involved. ReWillow Creek, ( 1926) 119 Or 155, 236 P 487, 237 P 682, 239

P 123.

A decree of the circuit court in proceedings to deternune

the right to use water of the stream for irrigation purposes

is res adjudicata upon the question of abandonment. Abelv. Mack, ( 1930) 131 Or 586, 283 P B.

Rights which are not involved in the litigation in which

the decree is rendered are not affected. Krebs v. Perry, 1930) 134 Or 290, 292 P 319, 293 P 432.

In order to constitute a decree res judicata and to bar

a subsequent action, there must be a concurrence of the

identity of the right sued for, the identity of the cause ofaction, and the identity of the parties to the action. Master- son v. Pac. Livestock Co., ( 1933) 144 Or 396, 24 P2d 1046.

FURTHER CITATIONS: Gardner v. Dollina, ( 1955) 206 Or

1, 288 P2d 796.


541. 410

NOTES OF DECISIONS

The use of water for lifting water for irrigation and forgenerating electricity for lifting water for irrigation is abeneficial use. Re Deschutes River, ( 1930) 134 Or 623, 286

P 563, 294 P 1049.

Where a water user intended using a waterwheel forirrigation purposes, his notice of appropriation should have

included a claim for the quantity of water desired to beappropriated for power purposes, and such appropriation

was required to be reasonable. Re Owyhee River, ( 1928) 124 Or 44, 259 P 292.

541. 540

ATTY. GEN. OPINIONS: Action against irrigation district

for flood damage, 1960 -62, p 204.

41. 620

CASE CITATIONS: State Land Bd. v. Gen. Constr. Co.,

1970) 2 Or App 53, 465 P2d 731.

542

is

u

SUPERSEDED

Chapter 542

Water Resource Surveys and Projects;

Compacts

542.010


542.040

ATTY. GEN. OPINIONS: Repayment of money expendedin investigation which disclosed that irrigation project was

not feasible, 1928 -30, p 392.

542. 110


543

542.210

ATTY. GEN. OPINIONS: Construction of dam across the

Rogue River by a corporation having vested water rights, 1948 -50, p 403.

542.620



542.750


SUPERSEDED

Chapter 543

Hydroelectric Power Projects

Chapter 543

NOTES OF DECISIONS

The state does not have the power to veto a license

granted by the Federal Government to construct a damacross a navigable stream for purposes of generating electricity. State v. Idaho Power Co., ( 1957) 211 Or 284, 312

P2d 583.

ATTY. GEN. OPINIONS: Authority- of State Water Re- sources Board in reviewing license application for a hydroelectric project, 1960 -62, p 274.

LAW REVIEW CITATIONS: 3 WLJ 299, 300, 310, 384.

543.010

ATTY. GEN. OPINIONS: Procedure for approval of the

construction of a hydroelectric dam, 1948 -50, p 252; constitutionality of legislation to carry out Ore. Const. Art. XI -D, 1954 -56, p 96.

543.050

NOTES OF DECISIONS

State has no power to veto a license granted by FederalGovernment to construct a dam across a navigable stream

for purposes of generating electricity. State v. Idaho PowerCo., ( 1957) 211 Or 284, 312 P2d 583.

Federal Power Commission had exclusive jurisdiction togrant license for water power project on lands in Oregon

constituting United States reservation. Federal PowerComm. V. Oregon, ( 1955) 349 US 435, 444, 75 S Ct 832, 838,

99 L Ed 1215, 1224.

FURTHER CITATIONS: 011io v. Clatskanie Dist., (1942) 170

Or 173, 132 P2d 416.

ATTY. GEN. OPINIONS: Authority of Hydroelectric Com- mission to grant applications for permits or licenses on

streams withdrawn from appropriations, 1930 -32, p 240; procedure' for approval of the construction of a hydroelec-

tric dam, 1948 -50, p 252.

LAW REVIEW CITATIONS: 25 OLR 160; 3 WLJ 303, 311.

543. 120

NOTES OF DECISIONS

State has no power to veto a license granted by FederalGovernment to construct a dam across a navigable stream

for purposes of generating electricity. State v. Idaho PowerCo., ( 1957) 211 Or 284, 312 P2d 583.

Federal Power Commission had exclusive jurisdiction togrant license for water power project on lands in Oregonconstituting United States reservation. Federal PowerComm. v. Oregon, ( 1955) 349 US 435, 444, 75 S Ct 832, 838, 99 L Ed 1215, 1224.

ATTY. GEN. OPINIONS: Application of Benton UtilityCompany for minor hydroelectric project in Benton County, 1936 -38, p 29; procedure for approval of the constructionof a hydroelectric dam, 1948 -50, p 252.

543. 140

CASE CITATIONS: Federal Power Comm. v. Oregon, ( 1955) 349 US 435, 451, 75 S Ct 832, 842, 99 L Ed 1215, 1228.

543.210

ATTY. GEN. OPINIONS: Authority of the game commissionas to construction and maintenance of dams, irrigationprojects, etc., 1940 -42, p 463; procedure for approval of theconstruction of a hydroelectric dam, 1948 -50, p 252.

543.225

ATTY. GEN. OPINIONS: Applications to build hydroelectric

power dams, 1958 -60, p 154; authority of State Water Re- sources Board in reviewing license application for a hydroelectric project, 1960 -62, p 274.

LAW REVIEW CITATIONS: 3 WLJ 303, 308 -311.

43.230

ATTY. GEN. OPINIONS: Procedure for approval of the

construction of a hydroelectric dam, 1948 -50, p 252.


543.=

ATTY. GEN. OPINIONS: Procedure for approval of theconstruction of a hydroelectric dam, 1948 -50, p 252.

543.260

ATTY. GEN. OPINIONS: Authority of State Water Re- sources Board in reviewing license application for a hydroelectric project, 1960 -62, p 274.


543.300

ATTY. GEN. OPINIONS: The authority of the HydroelectricCommission to waive requirements of the Hydroelectric

Act, pursuant to subsection ( 6) as based upon a conflictbetween the requirements of the state Act and requirements

of a license or permit issued by the Federal Power Commis- sion, 1942 -44, p 291; requirements imposed by the RuralElectrification Administration upon an electrical coopera-

tive as " permits or licenses from the United States as acondition precedent to the construction" of an electrifica-

tion project, 194244, p 291; authority of Hydroelectrrc

is

1u

SUPERSEDED

JCommission to determine what is a reasonable rate of

return in the instance of every licensee under the Hydro- electric Act and to require all return in excess thereof to

be credited to an amortization reserve fund, 1944-4"- 204.

543.510

ATTY. GEN. OPINIONS: Duty of the Public Utility Com- missioner to determine the rate base and fix retail ratesfor the service of a public utility that is licensed under theHydroelectric Act, 194446, p 204.

543.530

ATTY. GEN. OPINIONS: Duty of applicants for hydroelectric license, who prior to issuance of license constructed

projects and incurred indebtedness, to secure the approval

of the Hydroelectric Commission prior to or at the time

the license is issued, 1942 -44, p 196.


543.550

ATTY. GEN. OPINIONS: Ownership as a requisite to issuance of license, 1930 -32, p 717.

543.610


543.705

ATTY. GEN. OPINIONS: Abandonment of right to water

in excess of amount specified in claim, 1958 -60, p 121.

543.990

543.710

ATTY. GEN. OPINIONS: Authority to collect fees on pending applications to appropriate water, 1924 -26, p 225; payment of fee as deferred because owner's husband is reserveofficer, 1940 -42, p 637; abandonment of right to water inexcess of amount specified in claim, 1958 -60, p 121.

543.720

NOTES OF DECISIONSState Engineer's determination of questions of fact is

entitled to great weight on appeal. Appleton v. Ore. Iron

Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366 P2d 174.

An application under this section was in substance an

application for a permit to use water. Re Hood River, ( 1924) 114 Or 112, 187, 227 P 1065.

ATTY. GEN. OPINIONS: Preference lien for delinquent

license fees required to be paid for water power development as superior to lien of ad valorem taxes on real and

personal property, 1942 -44, p 156; abandonment of right towater in excess of amount specified in claim, 1958 -60, p 121.

543.730

ATTY. GEN. OPINIONS: Abandonment of right to water

in excess of amount, specified in claim, 1958 -60, p 121.

543.990


k7w

SUPERSEDED

Chapter 545

Irrigation Districts

Chapter 545

NOTES OF DECISIONS

An irrigation district constitutes a complete and indepen-

dent corporate entity. Harney Valley Irr. Dist. v. Weitten- hiller, ( 1921) 101 Or 1, 198 P 1093.

An irrigation district is a municipal corporation, its property public property, and its officers public officers, with

duties and powers fixed and limited by the law of theircreation. Twohy Bros. Co. v. Ochoco Irr. Dist., ( 1923) 108

Or 1, 210P873, 216P 189.

An irrigation district has no powers, either governmental

or proprietary, except those granted to it by the legislature, either express or by clear implication. Redmond Realty Co. v. Central Ore. Irr. Dist., ( 1932) 140 Or 282, 12 P2d 1097.

An irrigation district is a quasi - municipal corporation

having no specific charter and one which is organized fora particular purpose only. Central Pac. R. Co. v. Ager, (1933) 144 Or 527, 25 P2d 927.

FURTHER CITATIONS: Peterkort & Co. v. E. Wash.

County Zoning Dist.,•( 1957) 211 Or 188, 313 P2d 773, 314

P2d 912; Cook v. Hill ( 1960) 224 Or 565, 356 P2d 1067; UnitedStates v. Howell, ( 1965) 251 F Supp 787; Union Pac R. R. v. Vale, Oregon Irr. Dist., ( 1966) 253 F Supp 251.

ATTY. GEN. OPINIONS: Construing " owner of land" asto tenants by the entirety, 1948 -50, p 171; assessment ofdistrict for water supplied as an assessment for local im-

provements, 1952 -54, p 4; absentee voters at district elections, 1954 -56, p 113; signing poll books, notice in districtelections, 1954 -56, p 213; authority to distribute water tolandowners and collect charges, 1956 -58, p 260; other municipal districts under people' s utility district law, 1960 -62, p325; taxation of interest on district obligations, 1962 -64, p77; fuel tax refunds for fuel used on district roads, 1962 -64,

p 81; enforcing statute prohibiting extraterritorial use ofdistrict equipment, 196466, p 418.

LAW REVIEW CITATIONS: 45 OLR 280, 284; 46 OLR 160; 47 OLR 16- 70.

545.002

NOTES OF DECISIONS

Former similar statute did not violate Ore. Const. Art. 11, § 2. Board of Directors v. Peterson, ( 1913) 64 Or 46, 128P 123.

Owners of land which can be irrigated were the only onesqualified to sign the petition. Herrett v. Warmsprings Irr. Dist., ( 1917) 86 Or 343, 168 P 609.

Oregon took the Irrigation District Act from California

and the decisions of the courts of that state are highlypersuasive in construing our Act. Todd v. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 163.

FURTHER CITATIONS: Hanley Co. v. Harney Valley Irr. Dist., ( 1919) 93 Or 78, 89, 180 P 724, 182 P 559; Gard v. Henderson, ( 1920) 95 Or 520, 187 P 839; Peterkort & Co.

v. E. Wash. County Zoning Dist., ( 1957) 211 Or 188, 313

P2d 773, 314 P2d 912.

ATTY. GEN. OPINIONS: Construing " owner of land" asto tenants by the entirety, 1948 -50, p 171; right of directorto retain his office after he incorporates his holdings located

in the-district, 1948 -50, p 406; signing poll books, notice indistrict elections, 1954 -56, p 213; maintaining negligenceaction against district, 1960 -62, p 204; constitutionality ofvoter qualification, ( 1968) Vol 34, p 263.


545.004

NOTES OF DECISIONS

Proceedings for organization of district were regular.

Board of Directors v. Peterson, ( 1913) 64 Or 46, 128 P 837,

129 P 123; Links v. Anderson, ( 1917) 86 Or 508, 168 P 605;

Re Grants Pass Irr. Dist., ( 1918) 87 Or 643, 171 P 486.

Sufficiency of petition was sustained. Herrett v.

Warmsprings Irr. Dist., ( 1917) 86 Or 343, 168 P 609; HanleyCo. v. Harney Valley Irr. Dist., ( 1919) 93 Or 78, 180 P 724,

182 P 559; Re Harper Irr. Dist., ( 1923) 108 Or 598, 216 P

1020.

Publication of the petition and notice was essential to

jurisdiction to establish the district. Hanley Co. v. HarneyValley Irr. Dist., ( 1919) 93 Or 78, 180 P 724, 182 P 559; ReHarper Irr. Dist., ( 1923) 108 Or 598, 216 P 1020.

Affidavit of publication was insufficient proof of compli-

ance with law. Hanley Co. v. Harney Valley Irr. Dist., (1919) 93 Or 78, 180 P 724, 182 P 559.

Judicial notice was taken of the organization of an irriga-

tion district. Harney Valley Irr. Dist. v. Weittenhiller, ( 1921) 101 Or 1, 198 P 1093.

Bond was insufficient because conditioned in the sum of1, 000 rather than for whatever cost might be adjudged in

case the petition was not granted. Greig v. Owyhee Irr. Dist., ( 1921) 102 Or 265, 202 P 222.

Sureties were not required to be disinterested persons. Id.

Decree adjudging establishment of district according tolaw was not subject to attack because of giving of notice. Weber v. Jordan Valley Irr. Dist., ( 1923) 109 Or 426, 220

P 146.

ATTY. GEN. OPINIONS: Absentee voters at district elec-

tions, 1948 -50, p 100; application of carrier regulations todistrict, 1962 -64, p 158.


545.006

NOTES OF DECISIONS

The technicalities of an action at law need not be ob-

served in a proceeding for the organization of an irrigationdistrict. Hanley Co. v. Harney Valley Irr. Dist., ( 1919) 93

Or 78, 180 P 724, 182 P 559.

546

J

Ilu

SUPERSEDED

C7

The county judge has jurisdiction of the proceedingwithout the attendance of the county commissioners; theorganization of an irrigation district not being county business. Harney Valley Irr. Dist. v. Weittenhiller, ( 1921) 101Or 1, 198 P 1093.

The order concerning the number of petitioners, etc., should have stated all the facts found or determined bythe court upon the hearing. Hanley Co. v. Harney ValleyIrr. Dist, ( 1919) 93 Or 78, 180 P 724, 182 P 559.

Lands which were within the district and susceptible ofirrigation from the system were presumed to be benefited

thereby, in the absence of a contrary determination obtained later upon a petition for the exclusion of particulartracts. Re Harper Irr. Dist., ( 1923) 108 Or 598, 216 P 1020.

Finding of court, declaring district to have been organized, was conclusive against collateral attack in a pro-

ceeding for the cancelation of warrants issued by the district. Northern Pac. R. Co. v. John Day Irr. Dist., ( 1923)

106 Or 140, 211 P 781.

FURTHER CITATIONS: Todd v. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 163.

545.008

ATTY. GEN. OPINIONS: Effect of subdistricting, ( 1968) Vol34, p 263.

545.010

CASE CITATIONS: Re Application of Riggs, ( 1922) 105 Or531, 207 P 175, 1005, 210 P 217.

545.012

NOTES OF DECISIONS

To overcome the prima facie validity of an election, factsmust be stated which, if sustained by proof, would renderit the duty of the court to vacate the election or declarethe result to have been otherwise. Re Application of Riggs,

1922) 105 Or 531, 207 P 175, 210 P 217.

FURTHER CITATIONS: Harney Valley Irr. Dist. v. Weit- tenhiller, ( 1921) 101 Or 1, 198 P 1093.

ATTY. GEN. OPINIONS: Vacancy in office as to boardmember who loses qualifications, 1948 -50, p 406; absenteevoters at district elections, 1954 -56, p 113; signing pollbooks, 1954 -56, p 213.

545.014

ATTY. GEN. OPINIONS: Election to be held even thoughthe day is a holiday, 194042, p 349; procedure when a tieelection, 1948 -50, p 347; right of director of irrigation districtto retain his office after he incorporates his holdings located

in the district, 1948 -50, p 406; construing regular generalelection, 1952754, p 220; election held on holiday, 1958 -60, p 53; procedure to resign, 1962 -64, p 231; electing a successorto an office held by a holdover after a tie vote, 1964 -66, p 346; effect of subdistricting, ( 1968) Vol 34, p 263.

545.026

ATTY. GEN. OPINIONS: Regarding the right to considerand count votes for candidates for office of director of

irrigation district who were not regularly nominated andwhose names were written in on the ballot, 1932 -34, p 88; elector of a previously organized irrigation district as entitled to cast vote for director as an absentee voter at the

district election, 1936 -38, p 86; absent voters in irrigationdistrict elections, 1954 -56, p 113.

545.062

545.028


tions, 1954 -56, p 113.

545.030

NOTES OF DECISIONS

The fact that the polls were not kept open during thefull statutory period was not a ground for contesting theelection. Links v. Anderson, ( 1917) 86 Or 508, 168 P 605,

1182.


tions, 1954 -56, p 113.

545.052

CASE CITATIONS: Cook v. Hill, ( 1960) 224 Or 565, 356 P2d

1067.

ATTY. GEN. OPINIONS: Signing poll books, notice in district elections, 1954 -56, p 213.

545.034

CASE CITATIONS: Cook v. Hill, (1960)_ 224 Or 565, 356 P2d

1067.

545.036

CASE CITATIONS: Cook v. Hill, ( 1960) 224 Or 565, 356 P2d

1067.

545.038

NOTES OF DECISIONS

An appeal must be taken in conformity with this section. Allen v. Levens, ( 1921) 101 Or 466, 198 P 907, 199 P 595.

Notice of contest was sufficient. Hendricksen v. Clark,

1921) 102 Or 250, 201 P 1071.

FURTHER CITATIONS: Re Application of Riggs, ( 1922) 105Or 531, 545, 207 P 175, 1005, 210 P 217; Cook v. Hill, ( 1960)

224 Or 565, 356 P2d 1067.

545.040

NOTES OF DECISIONS

This section makes irrigation districts subject to the provisions of the Act of 1917. Re Bd. of Directors of NorthUnit Irr. Dist., ( 1919) 91 Or 33, 178 P 186.

NOTES OF DECISIONS

Moneys of an irrigation district, although collected bycounty officials, belong to the district; they do not becomecounty-funds. State v. Crook County Bank, ( 1922) 104 Or495, 501, 208 P 749.

Contract for furnishing water to a city was not illegal. Butler & Thompson Co. v. City of Ashland, ( 1924) 109 Or683, 222 P 346.

FURTHER CITATIONS: Twohy Bros. Co. v. Ochoco Irr. Dist., ( 1923) 108 Or 1, 16, 210 P 873, 216 P 189; Lewis v.

Klamath Irr. Dist., ( 1964) 237 Or 466, 391 P2d .774.

ATTY. GEN. OPINIONS: County treasurer as ex officiotreasurer of irrigation district, and right to extra compensa-

tion for such services, 1920 -22, p 655; authority of countytreasurer to deliver to reclamation commission refunding

547

SUPERSEDED

545.064

bonds and money received from sale of surplus water, 1928 -30, p 350; payment of court fees by an irrigation district, 1948 -50, p 242; duty of county treasurer to keep a bondregister, 1950 -52, p 393; authority to distribute water tolandowners and collect charges, 1956 -58, p 260; same personserving as member of State Water Resources Board, asmanager and secretary of imgation district, and as countyjudge, 1958 -60, p 308.

545.064

NOTES OF DECISIONS

United States is not a necessary or proper party to suitby district involving water acquired from United States anddistributed by district. Enterprise Irr. Dist. v. EnterpriseLand & Inv. Co., ( 1931) 137 Or 468, 300 P 507.

ATTY. GEN. OPINIONS: Same person serving as memberof State Water Resources Board, as manager and secretaryof irrigation district, and as county judge, 1958 -60, p 308; action against irrigation district for flood damage, 1960 -62,

p 204; authority of district attorney to prosecute personsviolating subsection ( 2), 1964 -66, p 418.

545.070

NOTES OF DECISIONS

District had the right to assert invalidity of contract forconstruction work. Twohy Bros. Co. v. Ochoco hT. Dist., 1923) 108 Or 1, 16, 210 P 873, 216 P 189.

Contract authorizing landowner to use escaping waterwas not beyond the powers of the district. Barker v. Sonner,

1931) 135 Or 75, 294 P 1053.

545.074

NOTES OF DECISIONS

A contract for construction of irrigation works entered

into by the district without advertising for bids was invalid, and the district was not liable for work performed pursuant

to the contract. Twohy Bros. Co. v. Ochoco Irr. Dist., (1923) 108 Or 1, 210 P 873, 216 P 189.

545.082

NOTES OF DECISIONS

Provisions relating to interest acquired by condemnationare to be construed strictly. Warm Springs Irr. Dist. v. Pac. Livestock Co., ( 1921) 270 Fed 560.

Interest in reservoir site acquired by condemnation wasan easement only. Id.

FURTHER CITATIONS: Richmond Inv. Co. v. United

States, ( 1957) 249 F2d 811.

ATTY. GEN. OPINIONS: Regarding method whereby irrigation district can obtain the right to construct laterals on

county road to deliver water to tracts of land, 1920 -22, p85; authority of irrigation district to enter upon land ownedby the state and lying within such district and to constructa drainage ditch through the same, 1936 -38, p 169.

LAW REVIEW CITATIONS: 45 OLR 280; 46 OLR 160; 47OLR 16. 70.

545.084


545.086


6i AI_3?1


545.090

CASE CITATIONS: Richmond Inv. Co. v. United States,

1957) 249 F2d 811.

ATTY. GEN. OPINIONS: Canal roads of district as private-

ly -owned roads and' not public highways, 1948 -50, p 114.

545. 102

NOTES OF DECISIONS

Contract to furnish water to a city was not illegal forwant of restriction of use of water to irrigation. Butler &

Thompson Co. v. City of Ashland, ( 1924) 109 Or 683, 222P 346.

An agreement between an irrigation district and a land-

owner whereby the latter became entitled to retain certainwaste waters in consideration of his release of the district

from all claims for damages was not in excess of the powersgranted to the district. Barker v. Sonner, ( 1931) 135 Or 75,

294 P 1053.


545. 104

ATTY. GEN. OPINIONS: Statute as applicable only to landnot subject to assessment by irrigation district, 1924 -26, p333.

545. 106


545. 108

ATTY. GEN. OPINIONS: Right of district to foreclose as-

sessment lien where improvement not attached to particular

property, 1950 -52, p 421.

545.110

CASE CITATIONS: Wane Springs In. Dist. v. Pac. Live

Stock Co., ( 1921) 270 Fed 560.

LAW REVIEW CITATIONS: 25 OLR 1401; 45 OLR 280, 281,

283; 46 OLR 160; 47 OLR 16 -70.

545.144

NOTES OF DECISIONS

This section does not constitute a deprivation of propertywithout due process of law. Johnson v. Warm Springs Irr. Dist., ( 1926) 118 Or 239, 246 P 527.

545. 192

NOTES OF DECISIONS

The purpose of issuance of bonds may not be abandonedby directors, and the bonds be sold to finance a differentproject, and such purpose must be stated in the call forelection. Medford Irr. Dist. v. Hill, ( 1920) 96 Or 649, 190 P

957.

Everyone dealing with an irrigation district is chargedwith notice of the extent of its powers and the legislativelimitations and restrictions upon the exercise thereof. Red-

mond Realty Co, v. Central Ore. Irr. Dist., ( 1932) 140 Or

282, 12 P2d 1097.

548

J

SUPERSEDED

41 Jurisdiction to determine regularity of proceedings authorizing issuance and sale of bonds was acquired by court. Harney Valley Irr. Dist. v. Bolton, ( 1923) 109 Or 486, 221P 171.

The board of directors was without authority to issuebonds for the purpose of paying outstanding warrants issued for purposes of operation and maintenance. Redmond

Realty Co. v. Central Ore. Irr. Dist., ( 1932) 140 Or 282, 12

P2d 1097.

ATTY. GEN. OPINIONS: Regarding sufficiency of notice, 1920 -22, p 223; duty of reclamation commission in connection with claim that a certificate of deposit of bonds has

been mislaid or lost, 1934 -36, p 319; legality and effect ofaffidavit as to loss or destruction of certificate of deposit

for irrigation district bonds, 1934 -36, p, 319; absent votersin irrigation district elections, 1954 -56, p 113.

545. 196

ATTY. GEN. OPINIONS: Duty of county treasurer as mandatory under this section, 1950 -52, p 393.

545.202

NOTES OF DECISIONS

Publication of notice was sufficient. Payette -Ore. -SlopeIrr. Dist. v. Peterson, ( 1915) 76 Or 630, 149 P 1051.

Directors did not have authority to execute an optionagreement for the sale of bonds. Young v. Gard, ( 1929) 129Or 534, 277 P 1005.

545.204

NOTES OF DECISIONS

The plaintiff could, in a proceeding in mandamus, compelthe levy of assessments. Kollock v. Barnard, ( 1926) 116 Or694, 242 P 847.

Bonds of district were not secured by a lien on the property of the district. Johnson v. Warm Springs Irr. Dist.,

1926) 118 Or 239, 247, 246 P 527.

FURTHER CITATIONS: Re Harper Irr. Dist., ( 1923) 108 Or

598, 615, 216 P 1020; State v. McClain, ( 1931) 136 Or 53,

298 P 211; Warm Springs In:. Dist v. Holman, ( 1934) 146

Or 110, 29 P2d 825; Buell v. Jefferson County, ( 1944) 175Or 402, 152 P2,,d 578, 154 P2d 188.

ATTY. GEN. OPINIONS: Payment of irrigation district

bonds, 1924 -26, p 512.

545.206

NOTES OF DECISIONS

The assessment of each year should be sufficiently broadto take care of actual and c_ ontemplated delinquencies in

prior assessments. Noble v. Yancy, ( 1925) 116 Or 356, 241P 335..

Provisions for delinquencies must be made in computingthe amount to be raised. Kollock v. Barnard, ( 1926) 116 Or694, 242 P 847.

545.208

NOTES OF DECISIONS

Assessment liens do not have priority over mortgagessecuring the payment of common school funds. Eagle PointIrr. Dist. v. Cowden, ( 1931) 137 Or 121, 1 P2d 605.

Bonds of district were not secured by a lien on the property of the district. Johnson v. Warm Springs Irr. Dist.,

1926) 118 Or 239, 246 P• 527.

A State Land Board mortgage securing moneys of the

545.280

Common School Fund was inferior to bonds of an irrigation

district of a prior issue and sums levied and assessed forthe annual service of such bonds and maintenance. StateLand Bd. v. Davidson, ( 1934) 147 Or 504, 34 P2d 608.

ATTY. GEN. OPINIONS: Irrigation district bonds as liens

upon assessments levied on property within irrigation district for the payment thereof, 1932 -34, p 223; liability forirrigation taxes assessed upon real property covered bymortgage to State Land Board and sold at foreclosure sale,

1936 -38, p 555; right of district to foreclose assessment Genwhere improvement not attached to particular property, 1950 -52, p 421.

545.210

ATTY. GEN. OPINIONS: Participation by irrigation districtin distribution of proceeds derived from sale of propertyacquired by county by tax deed, 1924 -26, p 389; right ofirrigation district to exclusively purchase property, acquiredby the county for delinquent taxes, where district has notconstructed any local improvements on it, 1950 -52, p 421.

545.212

CASE CITATIONS: Lewis v. Klamath Irr. Dist., ( 1964) 237

Or 466, 391 P2d 774.

545.226

NOTES OF DECISIONS

This section is constitutional. There is nothing in theConstitution which prohibits the legislature from cancelingor authorizing the cancelation of such evidences of indebtedness under the conditions contemplated. WarmSprings Irr. Dist. v. Holman, ( 1934) 146 Or 110, 29 P2d 825.

The legislature intended to authorize the reclamation

commission to cancel only so much of the indebtedness ofany district to the state as it found the district unable topay. Id.

ATTY. GEN. OPINIONS: Method of cancelation and deliv-

ery of certificate of indebtedness, 1934 -36, p 128.

545.242

NOTES OF DECISIONS

It was not the intention of the legislature to permit irri-

gation districts to issue bonds for their running expenses, except in refunding all of their indebtedness, with the consent, of the reclamation commission. Redmond Realty Co. v. Central Ore. Irr. Dist., ( 1932) 140 Or 282, 12 P2d 1097.

FURTHER CITATIONS: Warmsprings Irr. Dist. v. May, 1941) 117 F2d 802.

545.260

ATTY. GEN. OPINIONS: When the reclamation commis-

sion, or secretary thereof, has authority to sign receipts andmemorandum of sale in connection with adjustment and

deposit of bonds of irrigation district, 1934 -36, p 262; dutyof county treasurer to keep a bond register, 1950 -52, p 393.

if

NOTES OF DECISIONS

A decree adjudging the consent of dissenting bondholdersis conclusive against collateral attack unless void for wantof jurisdiction of the subject matter or persons. Warm -

springs Irr. Dist. v. May, ( 1941) 117 F2d 802.

549

SUPERSEDED

545.320

545.320

ATTY. GEN. OPINIONS: Authority of commission to paybonds presented, reserving funds available for payment ofcoupons until they are properly presented, 194042, p 413.

41A.! 1

NOTES OF DECISIONS

A former similar statute was held constitutional. Cannonv. Hood River Irr. Dist., ( 1916) 79 Or 71, 154 P 397; Northern

Pac. R. Co. v. John Day Irr. Dist., ( 1923) 106 Or 140, 211

P 781; Northwestern Imp. Co. v. John Day Irr. Dist., ( 1922)

286 Fed 294.

The implied intention of the legislature was not to restrict

the right of an irrigation district to appropriate water forland not included within its boundaries. Butler & Thompson

Co. v. City of Ashland, ( 1924) 109 Or 683, 222 P 346.

ATTY. GEN. OPINIONS: Right of district to foreclose as-

sessment lien where improvement not attached to particular

property, 1950 -52, p 421; assessment of district for watersupplied as an assessment for local improvements, 1952 -54, p4.

545.434

NOTES OF DECISIONS

Owners were not entitled to notice and an opportunityto be heard upon the question of benefits to their lands. Re Harper Irr. Dist., ( 1923) 108 Or 598, 600, 216 P 1020.

The writ properly directed that the assessment be leviedagainst all lands, including those purchased by the districton foreclosure of certificates of delinquencies for taxes.

State v. McClain, ( 1931) 136 Or 53, 298 P 211.

ATTY. GEN. OPINIONS: Land owned by an irrigation ordrainage district in a proprietary capacity as subject todistrict assessments which may not be canceled, 1942 -44, p 122.

545.448

NOTES OF DECISIONS

Absence of proof of publication of notice was not a juris-

dictional defect. Northern Pac. R. Co. v. John Day Irr. Dist., 1923) 106 Or 140, 211 P 781.

In a suit to foreclose a certificate of delinquency, a landowner who has not taken advantage of the remedies that

the law affords him could not receive the benefit of the

remedy he should have sought before the board of equalization. Klamath County v. Colonial Realty Co., ( 1932) 139

Or 311, 7 P2d 976.

545.450

NOTES OF DECISIONS

Failure to appeal to the board of equalization for relief

does not estop the landowner from asserting the invalidityof an assessment upon grounds of a jurisdictional character.

Payette -Ore. Slope Irr. Dist. v. Coughanour, ( 1939) 162 Or

458, 91 P2d 526.

FURTHER CITATIONS: Northern Pac. R. Co. v. John DayIrr. Dist., ( 1923) 106 Or 140, 211 P 781.

545.452

NOTES OF DECISIONS

Priority of irrigation district assessment liens over mortgages securing the payment of Common School Fund was

not intended by this section. Eagle Point Irr. Dist. v. Cow- den, ( 1931) 137 Or 121, 1 P2d 605.

A State Land Board mortgage securing moneys of theCommon School Fund was inferior to bonds of an irrigation

district of a prior issue. State Land Board v. Davidson, 1934) 147 Or 504, 34 P2d 608.

FURTHER CITATIONS: Horsefly Irr. Dist. v. Hawkins, 1928) 127 Or 176, 182, 271 P 194; Jordan Valley Irr. Dist.

v. Title & Trust Co., ( 1936) 154 Or 76, 84, 58 P2d 606; Buell

v. Jefferson County, ( 1944) 175 Or 402, 152 P2d 578, 154P2d 188.

ATTY. GEN. OPINIONS: Payment of taxes for operation

and maintenance to the exclusion of other taxes, 1924 -26,

p 550; right of irrigation district to withhold water fromreal property acquired by State Land Board by foreclosure, 1934 -36, p 379; the state as required to pay taxes againstlands in irrigation districts before they are sold, resold orcontract of sale executed, 1936 -38, p 479; liability for irrigation taxes assessed upon real property covered by mortgageto State Land Board and sold at foreclosure sale, 1936 -38,

p 555; application to payment of taxes of money receivedby State Land Board from sale of crop on land sold on acontract which had been canceled, 194042, p 293; whenirrigation district levies must be made and when certified

to county assessor, 1940 -42, p 357; foreclosing lien of irrigation taxes with county taxes, or separately, 1940 -42, p 479; statutes requiring payment of interest and penalties ondelinquent taxes as applicable to state owned lands, 1942 -44,

p 274; constitutionality of using highway funds to compensate for exclusion of land from irrigation districts, 1960 -62,

p 201; exemption of state lands from district assessments, 1964 -66, p 391.

545.460

ATTY. GEN. OPINIONS: Right of irrigation district to

withhold water from real property acquired by State LandBoard by foreclosure, 1934 -36, p 379.

545.490

NOTES OF DECISIONS

Failure to appeal to the board of equalization did not

preclude landowners from maintaining a suit for the cancellation of unpaid taxes and charges and for damages

because of the failure of the district to supply water. Smithv. Enterprise Irr. Dist., ( 1939) 160 Or 372, 85 P2d 1021.

FURTHER CITATIONS: Todd v. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 163.

545.492

NOTES OF DECISIONS

An assessment order may be attacked by a proceedingunder the Confirmation Act. Todd v. Bigham, ( 1964) 238

Or 374, 390 P2d 168, 395 P2d 163.

Appeal was properly dismissed. Id.

545.522

ATTY. GEN. OPINIONS: Duty of secretary of irrigationdistrict as mandatory under this section, 1950 -52, p 393.

545.562

NOTES OF DECISIONS

The submission of claims on vouchers is mandatory.

Young v. Gard, ( 1929) 129 Or 534, 277 P 1005; Lewis v. Klamath Inr. Dist., ( 1964) 237 Or 466, 391 P2d 774.

550

is

SUPERSEDED

FURTHER CITATIONS: Taylor v. Eagle Point Irr. Dist.,

1970) 3 Or App 545, 474 P2d 774, Sup Ct review denied.

ATTY. GEN. OPINIONS: Order of payment of warrants

issued by irrigation district, 1936 -38, p 690; application ofinterest which has accrued since maturity of bonds andinterest coupons, 1940 -42, p 220; authority of county treasurer to indorse warrants presented in accordance with this

section where they are drawn against a delinquent tax fundand there is no current levy, 1952 -54, p 60.

545.563


Or 466,- 391 P2d 774.

545:582

NOTES OF DECISIONS

The court took judicial notice of the boundaries of an

irrigation district. Harney Valley Irr. Dist. v. Weittenhiller, 1921) 101 Or 1, 198 P 1093.


Or 466, 391 P2d 774.

545.586

CASE CITATIONS: Todd v. Bigham, ( 1964) 238 Or 374, 390

P2d 168, 395 P2d 163.

545.588


P2d 168, 395 P2d 163.

545.592


P2d 168, 395 P2d 163.

545.594

NOTES OF DECISIONS

The appeal procedure referred to is in effect that providedfor appeals from justice courts. Todd v. Bigham, ( 1964) 238

Or 374, 390 P2d 168, 395 P2d 163.

545.602

NOTES OF DECISIONS

The owner was entitled to have his tract excluded wherethe land receives irrigation from another system. Re HarperIrr. Dist., ( 1923) 108 Or 598, 600, 216 P 1020.

545.624

The fact that the exclusion of railroad lands from an

irrigation district slightly increased the amount chargeableto other lands of the district for operation and maintenance

costs was no ground for refusing to exclude the railroadlands. Central Pac. R. Co. v. Ager, ( 1933) 144 Or 527, 25P2d 927.

FURTHER CITATIONS: United States v. Aho, ( 1943) 51 F

Supp 137.

545.604

ATTY. GEN. OPINIONS: Constitutionality of using highway funds to compensate for exclusion of land from irrigation districts, 1960 -62, p 201.

545.606

NOTES OF DECISIONS

Where lands in two counties are sought to be excluded, publication of notice in a newspaper in but one of the

counties is insufficient. Re Application of Riggs, ( 1922) 105

Or 531, 207 P 175, 210 P 217.

A notice of appeal from the decision of the board of

directors need not be served upon interested landowners

who have appeared and filed objections against the exclusion of lands in the district. Central Pac. R. Co. v. Ager,

1933) 144 Or 527, 25 132d 927.

FURTHER CITATIONS: Hanley Co. v. Harney Valley Irr. Dist., ( 1919) 93 Or 78, 180 P 724, 182 P 559.

545.608

NOTES OF DECISIONS

The proceeding is a special statutory proceeding and therules applicable to ordinary civil actions do not apply. Cen- tral Pac. R. Co. v. Ager, ( 1933) 144 Or 527, 25 P2d 927.

45.618


545.620

ATTY. GEN. OPINIONS: Constitutionality of using highway funds to compensate for exclusion of land from irrigation districts, 1960 -62, p 201.

545.624


551

SUPERSEDED

Chapter 547

Drainage Districts

Chapter 547

NOTES OF DECISIONS

The state and its instrumentalities have no power tosubject the lands of federal sovereign to assessment. Penin-

sula Drainage Dist. 2 v. Portland, ( 1958) 212 Or 398, 320

P2d 277.

FURTHER CITATIONS: Tillman v. United States, ( 1956)

232 F2d 511.

ATTY. GEN. OPINIONS: Application to drainage districts

of law requiring public contractors to pay prevailing wage, 1958 -60, p 317; taxation of interest on district obligations, 1962 -64, p 77; authority of district to levy assessments oncounty roads, 1966 -68, p 140.


547.005 to 547.055

ATTY. GEN. OPINIONS: Application to districts of taxes

and regulations administered by Public Utility Commis- sioner, 1962 -64, p 158; authority of drainage districts to levyassessments on county roads, 1966 -68, p 140.

547.005

ATTY. GEN. OPINIONS: District as a municipality qualifiedunder the people' s utility district law, 1960 -62, p 325; constitutionality of voter qualification, ( 1968) Vol 34, p 263.


547.010

NOTES OF DECISIONS

1915 c. 340 is valid as it does not tax the people of thedistrict without their consent, in violation of Ore. Const.

Art. I, § 32. State v. Mehaffey, ( 1917) 82 Or 683, 237 P 684, 239 P 193.

Only benefited lands should be included in a district. ReScappoose Drainage Dist., ( 1925) 115 Or 541, 237 P 684, 239P 193.

FURTHER CITATIONS: Rees v. Valley Drainage Dist., 1921) 101 Or 65, 199 P 178; Stafford v. Multnomah County

Drainage Dist., ( 1922) 103 Or 197, 204 P 158; Norby v. Sec- tion Line Drainage Dist., ( 1938) 159 Or 80, 82, 76 P2d 966;

State v. Bishop, ( 1942) 169 Or 448, 127 P2d 736; Delta Farmsv. Scappoose Drainage Dist., ( 1955) 206 Or 99, 288 P2d 816, 291 P2d 762.

547.045

CASE CITATIONS: United States v. Aho, ( 1943) 51 F Supp137.

ATTY. GEN. OPINIONS: Diking district levy on port districtland, 1962 -64, p 59; authority of district to levy assessmentson county roads, 1966 -68, p 140.

547.055

NOTES OF DECISIONSOrganization of district was valid. Re Scappoose Drain-

age District, ( 1925) 115 Or 541, 237 P 684, 1117, 1118, 239P 193.

547. 105

ATTY. GEN. OPINIONS: District as a municipality qualifiedunder the people' s utility district law, 1960 -62, p 325; application to districts of taxes and regulations administered byPublic Utility Commissioner, 1962 -64, p 158; constitutionality of voter qualification, ( 1968) Vol 34, p 263.

547.110

ATTY. GEN. OPINIONS: Construing regular general election, 1952 -54, p 220; constitutionality of voter qualification,

1968) Vol 34, p 263.

547. 140


and regulations administered by Public Utility Commis- sioner, 1962 -64, p 158.

547.210

NOTES OF DECISIONS

Only lands which will be benefited should be includedin a district. Re Scappoose Drainage Dist., ( 1925) 115 Or

541, 237 P 684, 1117, 1118, 239 P 193.

A landowner could not complain that, though the plan

for a ditch did not so provide, earth excavated was placedon the land of another owner to serve as a barrier againsthigh water. Arstill v. Fletcher, ( 1920) 95 Or 308, 187 P 854.

One signing a petition for establishment of a drainagedistrict was not heard to complain that he signed with the

understanding that certain land excluded by the countycourt was to be included therein. Rees v. Valley ViewDrainage Dist., ( 1921) 101 Or 65, 199 P 178.

A finding that lands will be benefited, not having beenappealed from, created a presumption that all lands included in the district will benefit from the improvement. ReScappoose Drainage Dist., ( 1925) 115 Or 541, 237 P 684, 239

P 193.

547.225

CASE CITATIONS: Re Scappoose Drainage Dist., (1925) 115Or 541, 237 P 684, 1117, 1118, 239 P 193; Delta Farms v.

Scappoose Drainage Dist., ( 1955) 206 Or 99, 288 P2d 816,

291 P2d 762.

552

SUPERSEDED

ATTY. GEN. OPINIONS: Authority of drainage districts tolevy assessments on county roads, 1966 -68, p 140.

547.255

NOTES OF DECISIONSThe state and its instrumentalities have no power to

subject the lands of federal sovereign to assessment. Penin-


P2d 277.


547.240


547.245

ATTY. GEN. OPINIONS: Authority to redeem warrantswithout reference to time of presentment, 1934 -36, p 748; authority of drainage districts to levy assessments oncounty roads, 1966 -68, p 140.

547.305

NOTES OF DECISIONS

Landowners were entitled to enjoin construction of levee

on their lands. Stafford v. Multnomah County DrainageDist. 1, ( 1922) 103 Or 197, 204 P 158.

Land was condemned for drainage works by followingthe procedure prescribed by this section. Re ScappooseDrainage Dist., ( 1925) 115 Or 541, 237 P 684, 1117, 1118, 239P 193.


and regulations administered by Public Utility Commis- sioner, 1962 -64, p 158.


547.310

NOTES OF DECISIONS

In determining a dispute as to the propriety of the actionof district officers, much must be left to the officers' judgment in executing the plan for improvement. Arstill v. Fletcher, ( 1920) 95 Or 308, 318, 187 P 854

AM. GEN. OPINIONS: Competitive bidding requirements, 1962 -64, p 100.

547.325


547.455 to 547.485

ATTY. GEN. OPINIONS: Authority of drainage districts to

547. 760

levy assessments on county roads, 1966 -68, p 140.

547.455

NOTES OF DECISIONS

The board of supervisors could levy more than one tax. State v. Bishop, ( 1942) 169 Or 448, 127 P2d 736.

The levy of assessments by a drainage district is not theexercise of the power of general taxation, but an apportion-

ment of costs of construction, operation and maintenance

of works to parcels of land continuously benefited thereby, and may be made upon real property in the possession ofthe United States. United States v. Aho, ( 1946) 68 F Supp358.

The state and its instrumentalities have no power tosubject the lands of federal sovereign to assessment. Penin-


P2d 277.

FURTHER CITATIONS: United States v. Florea, ( 1945) 68

F Supp 367.

AM. GEN. OPINIONS: When the state, as mortgagee, accepts a conveyance of title in satisfaction of mortgage

debt, the mortgage as extinguished, 1942 -44, p 219; drainagedistrict assessments imposed on state -owned land or land

mortgaged to state to secure a rural credit fund loan, 1942-

44, p 219; land owned by an irrigation or drainage districtin a proprietary capacity as subject to district assessmentswhich may not be canceled, 1942 -44, p 122; constitutionalityof taxing district property, 1964 -66, p 391.

547.460

AM. GEN. OPINIONS: Constitutionality of taxing districtproperty, 1964 -66, p 391; authority of drainage districts tolevy assessments on county roads, 1966 -68, p 140.

547.465

NOTES OF DECISIONSThe growth of native wild grass did not constitute a use

of land for growing crops. Delta Farms v. Scappoose Drain- age Dist., ( 1955) 206 Or 99, 288 P2d 816, 291 P2d 762.

547.565

CASE CITATIONS: Poknapatawpha Drainage Dist. 2 v. United States, ( 1957) 242 F2d 925.

ATTY. GEN. OPINIONS: When the lien of bonds issued

by drainage district is prior to the lien of a mortgage onlands within the districts, given to secure payments of a

loan from the Irreducible School Fund, 1936 -38, p 301.

547.760

ATTY. GEN. OPINIONS: Constitutionality of voter qualification, ( 1968) Vol 34, p 263.

LAW REVIEW CITATIONS: 4 WW 491.

553

SUPERSEDED

Chapter 548

Provisions Applicable Both to Drainage Districtsand to Irrigation Districts

548.010

NOTES OF DECISIONS

The term " lands" includes easements as well as lands

which are held by fee simple title. Warm Springs Irr. Dist. v. Pac. Live Stock Co., ( 1921) 270 Fed 560.

548. 105 to 548. 115

NOTES OF DECISIONS

This Act was intended to apply even though the judgmentof the court might invalidate the action of the board. Toddv. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 150.

This Act was taken from California law and the decisions

of that court are highly persuasive. Id.

548. 105

NOTES OF DECISIONS

The scope of the decree includes a judicial examination

as to the regularity and legality of: ( 1) the organizationproceedings; ( 2) the issue and sale of the bonds of the

district; ( 3) the order of the county court declaring theorganization of the district; (4) the declaration of the result

of any district election; ( 5) the order of the board includingin or excluding land from the district; (6) the order of suchboard levying any assessment; ( 7) the issue of any bondsor determining any bond issue; ( 8) the legality of proceedings authorizing a contract with the United States. TwohyBros. Co. v. Ochoco Irr. Dist., ( 1923) 108 Or 1, 210 P 873,

216 P 189.

FURTHER CITATIONS: Payette -Ore. Slope Irr. Dist. v. Peterson, ( 1915) 76 Or 630, 149 P 1051; Re Grants Pass Irr.

Dist., ( 1918) 87 Or 643, 171 P 486; Re North Unit Irr. Dist.,

1920) 95 Or 520, 187 P 839; Harney Valley Irr. Dist. v. Weittenhiller, ( 1921) 101 Or 1, 198 P 1093; Re Application

of Riggs, ( 1922) 105 Or 531, 207 P 175, 210 P 217; Re Scap- poose Drainage Dist., ( 1925) 115 Or 541, 237 P 684, 239 P

193; Noble v. Yancey, ( 1925) 116 Or 356, 241 P 335; Toddv. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 150.

548. 110

NOTES OF DECISIONS

Jurisdiction is acquired by the filing of the petition andthe giving of notice. Hamey Valley Irr. Dist. v. Bolton, 1923) 109 Or 486, 221 P 171.

Since the proceedings are in rem, the landowners affected

are bound thereby, notwithstanding the fact that there hasbeen no personal service upon them. Id.

It is the intention of this Act that notice should be given

at the direction of the court, without limitation of time.

Todd v. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d

163.

The decree not having been appealed from was res judicata. Johnson v. Warm Springs Irr. Dist., (1926) 118 Or 239,

246 P 527; Weber v. Jordan Valley Irr. Dist., ( 1923) 109 Or

426, 220 P 146.

FURTHER CITATIONS: Noble v. Yancey, ( 1925) 116 Or 356, 363, 241 P 335.

ATTY. GEN. OPINIONS: Regarding sufficiency of noticeand summons, 1930 -32, p 379, 1936 -38, p 71.

548. 115

NOTES OF DECISIONS

The 30 days limitation under this section is not applicable

to the action of board of directors in granting an optionfor the sale of bonds of the district. Young v. Gard, ( 1929) 129 Or 534, 277 P 1005.

Action of directors in giving option for sale of bonds isnot one of the powers given the directors by statute. Id.

This section grants an assessment payor the right to

contest the validity of the board' s assessment order. Toddv. Bigham, ( 1964) 238 Or 374, 390 P2d 168, 395 P2d 150.

548.205

ATTY. GEN. OPINIONS: Sufficiency of resolution of supervisors of drainage district to warrant certification of bonds,

1920 -22, p 469; state' s obligation to pay bonds of irrigationand drainage districts which have been certified, 1920 -22,

p 471.

50.210

ATTY. GEN. OPINIONS: Approval by State ReclamationCommission of contracts between drainage districts and

agencies of the United States prior to certification of bonds

issued by districts, 1934 -36, p 499; regarding statute underwhich certification of bond issue of drainage district should

be made, 1926 -28, p 361.

548.215

ATTY. GEN. OPINIONS: Basis of certification of bond issue

of drainage district, 1928 -30, p 258; necessity that the StateReclamation Commission proceed to carry out an investigation and procure a written report before making findings, 1936 -38, p 71.

548.365

ATTY. GEN. OPINIONS: Authority of State ReclamationCommission to appoint a particular individual as trustee, with authorities and powers conveyed in a resolution and

escrow agreement upon deposit of bonds of that irrigation

district with the State Reclamation Commission as deposi-

tary, 1934 -36, p 645.


1r; • ii

ATTY. GEN. OPINIONS: Authority of commission to furnish to irrigation districts the addresses of bondholders

554

SUPERSEDED

whose securities have been deposited with the commission,

1934 -36, p 47; treatment of application requesting permission to store water, 1950 -52, p 206.

548.605

NOTES OF DECISIONS

This section was not unconstitutional as being a specialor local law under Ore. Const. Art. IV, §23. Evert v. Ore.

Colonization Co., ( 1927) 123 Or 225, 261 P 443.

The purpose of this section is to empower districts to

enforce payment of taxes. Horsefly Irr. Dist. v. Hawkins, 1927) 121 Or 366, 254 P 825.

A certificate for district taxes should issue where other

taxes have been paid. Horsefly Irr. Dist. v. Hawkins, ( 1927) 121 Or 366, 254 P 825; Horsefly Irr. Dist. v. Hawkins, ( 1928) 127 Or 176, 271 P 194.

A district is placed in the position of an individual in

respect of demanding a certificate of delinquency, exceptthat it need not pay penalties or interest or the taxes assessed in favor of itself; the law does not preclude the

foreclosure of certificates of delinquency issued by thesheriff. Klamath County v. Colonial Realty Co., ( 1932) 139

Or 311, 7 P2d 976.

Lien of bondholders on the lands was not impaired byforeclosure of certificates of delinquency. State v. McClain,

1931) 136 Or 53, 298 P 211.

FURTHER CITATIONS: Daly v. Horsefly Irr. Dist., ( 1933)

143 Or 441, 21 P2d 787.

548.610 to 548.675

CASE CITATIONS: Murphy v. Clackamas County, ( 1954) 200 Or 423, 264 P2d 1040, 266 P2d 1065.

548.810

548.610

NOTES OF DECISIONS

Not having received water was a defense to suit to foreclose tax certificates for assessments. Enterprise Irr. Dist. v. Enterprise Land Co., ( 1931) 137 Or 468, 300 P 507.

FURTHER CITATIONS: Evert v. Ore. Colonization Co.,

1927) 123 Or 225, 261 P 443; Horsefly Irr. Dist. v. Hawkins, 1928) 127 Or 176, 271 P 194; Daly v. Horsefly Irr. Dist., 1933) 143 Or 441, 21 P2d 787.

548.655

CASE CITATIONS: Peninsula Drainage Dist. 2 v. Portland,

1958) 212 Or 398, 320 P2d 277.

548.705

NOTES OF DECISIONS

Classification of irrigation districts by state courts asmunicipal corporations or public bodies did not prevent the

legislature from passing statutes permitting them to actunder the terms of the Federal Bankruptcy Acts. Re Sum- mer Lake Irr. Dist., ( 1940) 33 F Supp 504.


548.810

ATTY. GEN. OPINIONS: Power of commission excludinglands from a drainage district to refund money paid by landholders, 1930 -32, p 643; authority of commission to issueeasement deed, 1936 -38, p 595; authority to expend fundsfor publication of irrigation and drainage district laws,

193840, p 138.

555

SUPERSEDED

Chapter 549

Drainage and Flood Control Generally

549. 110

NOTES OF DECISIONS

Jurisdiction is conferred by this section only to locatea ditch where there is none; the existing ditch of a propri> etor may not be utilized. Seely v. Sebastian, ( 1870) 4 Or25.

A right of way for the construction and maintenance ofa drain to carry off the overflow of septic tank and wastewater and sewage from a house was not acquired under

this section. Laurance v. Tucker, ( 1939) 160 Or 474, 85 P2d374.

FURTHER CITATIONS: Harbison v. City of Hillsboro, 1922) 103 Or 257, 204 P 613.


549. 180

NOTES OF DECISIONS

The compensation mentioned in this section is in the

nature of a contribution; it is distinct from the damages

which the commissioners are authorized to assess for the

cutting of a new ditch. Seely v. Sebastian, ( 1870) 4 Or 25.

FURTHER CITATIONS: Harbison v. City of Hillsboro, 1922) 103 Or 257, 204 P 613.

549. 190

CASE CITATIONS: Parkersville Drainage Dist. v. Wattier,

1906) 48 Or 332, 86 P 775; Re Hood River, ( 1914) 114 Or112, 227 P 1065.

549.380

ATTY. GEN. OPINIONS: Power of county to condemn land, 1956 -58, p 159.

LAW REVIEW CITATIONS: 46 OLR 131, 132, 134.

49.390


549.510

NOTES OF DECISIONS

This section is not unconstitutional as depriving personsof property without due process of law. Waite v. SiuslawBoom Co., ( 1925) 115 Or 316, 237 P 664.

Preliminary examination of the dike and notice to thedelinquent landowner must be shown by the plaintiff. Id.

The jury properly determines the question as to whetherthe cost of repair was commensurate with the benefits to.

the defendant' s land. Id.

The amount recovered of the delinquent landownershould not exceed the reasonable cost of repair. Id.

The questions as to reasonable value of labor and materi-

al, and as to whether plaintiffs paid therefor, were for the

jury. Id. The questions as to whether the plaintiff did unnecessary

work, and as to whether his own dike was in a good state

of repair, were for the jury's determination. Id.

549.520

NOTES OF DECISIONS

Notice by county judge to delinquent landowner wassufficient. Waite v. Siuslaw Boom Co., ( 1925) 115 Or 316,

237 P 664.

549.605 to 549.645


549.645

LAW. REVIEW CITATIONS: 46 OLR 307.

556

lI1JJ

SUPERSEDED

Chapter 551

Diking Districts

Chapter 551

ATTY. GEN. OPINIONS: Levy by district for maintenancecosts, 1962 -64, p 59.

LAW REVIEW CITATIONS: 47 OLR 16-70.

551.010

ATTY. GEN. OPINIONS: Levy for maintenance costs ofdistrict, 1962 -64, p 59.

551.020


551.060

ATTY. GEN. OPINIONS: Regarding the county court' sauthority to contribute to construction of dikes, 1940-42, p 239.

551.090

LAW REVIEW CITATIONS: 47 OLR 64. 4 WLJ 563.

551. 100


551. 160

NOTES OF DECISIONS

Decision as to organization of district as a diking districtor drainage district was with landowners. Re ScappooseDrainage Dist., (1925) 115 Or 541, 237 P 684, 1117, 1118, 239

P 193.

551. 170


557

SUPERSEDED

Chapter 553

Water- Control Districts

Chapter 553

ATTY. GEN. OPINIONS: Service district for flood control

within cities, 1964 -66, p 320.

LAW REVIEW CITATIONS: 45 OLR 282, 284; 47 OLR 16 -70.

553.010


LAW REVIEW CITATIONS: 45 OLR -282.

553.020

ATTY. GEN. OPINIONS: Applicability of Local Budget Lawto districts, 1964 -66, p 104.

553.090

ATTY. GEN. OPINIONS: Applicability of Local Budget Law

to districts, 1964 -66, p 104; constitutionality of voter qualification, ( 1968) Vol 34, p 263; auditing district accounts, ( 1969) Vol 34, p 486.


553.210 to 553.290

ATTY. GEN. OPINIONS: Applicability of Local Budget Lawto districts, 196466, p 104

553.210


553.625


558

r

SUPERSEDED

J

u

Chapter 554

Corporations for Irrigation, Drainage,

Water Supply or Flood Control

Chapter 554

ATTY. GEN. OPINIONS: Constitutionality of proposal toamend this chapter, 1950 -52, p 113; authority of improvement district to construct sewage disposal plant, 1952 -54,

p 37; district improvement company as a political subdivision of the state, 1958 -60, p 241; application to improvementcompanies of law requiring public contractors to pay prevailing wage, 1958 -60,. p 317; taxation of interest on districtobligations, 1962 -64, p 77.

LAW REVIEW CITATIONS: 45 OLR 281; 47 OLR 16- 70.

554.010 to 554.340

ATTY. GEN. OPINIONS: District improvement company asa political subdivision of the state, 1958 -60, p 241.

554.010

ATTY. GEN. OPINIONS: Authority of the State Land Boardto join in the formation of a nonprofit improvement district

corporation, 1942 -44, p 77; authority of improvement districtto construct a sewage disposal plant, 1952 -54, p 37.

LAW REVIEW CITATIONS: 45' OLR 281.

554.020

NOTES OF DECISIONS

A district improvement company is a quasi public corporation. Nelson v. McAllister Dist. Imp. Co., ( 1936) 155 Or

95, 62 P2d 950.

FURTHER CITATIONS: Tyree v. Crystal Dist. Imp. Co., 1913) 64 Or 251, 126 P 605.


554.040

ATTY. GEN. OPINIONS: Authority of improvement districtto construct sewage disposal plant, 1952 -54, p 37.

554.050

ATTY. GEN. OPINIONS: Interpretation of " sanitary purposes," 1952 -54, p 37; district improvement company as apolitical subdivision of the state, 1958 -60, p 241.

554.070


554.080

CASE CITATIONS: Nelson v. McAllister Dist. Imp. Co., 1936) 155 Or 95, 62 P2d 950.

X11

NOTES OF DECISIONSNoncompliance with a former similar statute precluded

improvement company from contesting inclusion of itslands within irrigation district. Re Bd. of Directors of NorthUnit Irr. Dist., ( 1919) 91 Or 33, 178 P 186.

6_ l kIi;

CASE CITATIONS: Nelson v. McAllister Dist. Imp. Co., 1936) 155 Or 95, 62 P2d 950.

559

SUPERSEDED

Chapter 555

Reclamation Projects

555.010

NOTES OF DECISIONS

The purpose of the Carey Act was to aid in the reclamation of desert public lands, and the legislature accepted thatAct in 1909 c. 226. Cookinham v. Lewis, ( 1911) 58 Or 484, 114 P 88, 115 P 342.

FURTHER CITATIONS: State v. Des Chutes Land Co.,

1913) 64 Or 167, 129 P 764; Central Ore. Irr. Co. v. Young, 1923) 107 Or 39, 213 P 782; United States v. Ide, ( 1921) 277

Fed 373, 380.

ATTY. GEN. OPINIONS: Authority of state to sell land heldunder the Carey Act, 192426, p 75.

555.030


555.040

NOTES OF DECISIONS

Suit by state to cancel contract for reclamation of desertlands was removable to federal court. State v. Three Sisters

Irr. Co., ( 1907) 158 Fed. 346.

Provisions of contract for reclamation of desert lands was

invalid. State v. Des Chutes Land Co., ( 1913) 64 Or 167,

129 P 764.

555.060

ATTY. GEN. OPINIONS: Refund of money deposited withdesert land board pursuant to this section, 1926 -28, p 213, 1932 -34, p 324.

555.070

NOTES OF DECISIONS

Bond of contractor afforded protection to state and per-

sons performing services and supplying materials. AmericanSur. Co. v. State, ( 1924) 299 Fed 357.


555.090

CASE CITATIONS: Skinner v. Jordan Valley Irr. Dist., 1931) 137 Or 480, 300 P 499, 3 P2d 534.

555. 100

CASE CITATIONS: American Sur. Co. v. State, ( 1924) 299

Fed 357.

555. 120

NOTES OF DECISIONS

A settler's right to the use of water is contingent on his

contract for the purchase of the land. Central Ore. Irr. Co.

v. Pub. Serv. Comm., ( 1921) 101 Or 442, 196 P 832.

555. 130

CASE CITATIONS: Central Ore. Irr. Co. v. Whited, ( 1915)

76 Or 255, 142 P 779, 146 P 815.

ATTY. GEN. OPINIONS:, In re requirements with which

settlers must comply and authority of State ReclamationCommission to convey land to an entryman under theCarey Act, 1934 -36, p 688; qualifications of assigner of entryman, 1948 -50, p 370.

555. 140

ATTY. GEN. OPINIONS: Authority to issue deed pursuantto statute to heirs of decedent, 1924 -26, p 165; when desertlands under Carey Act and in irrigation districts becomesubject to taxation, 1924 -26, p 646; sufficiency of affidavitto show release of claim in property for which applicationhas been made for a deed, 1934 -36, p 168; rights of assigneesmaking application for patent to land segregated underCarey Act, effect of abandonment of land, and right ofreclamation commission to issue deed to such land after

sale under foreclosure of delinquent tax certificate to

county, 1934 -36, p 811; rule of reclamation commission asaffecting execution of deeds to applicants for land in irrigation projects, 1936 -38, p 237; authority of reclamation company to transfer water rights in Carey Act project to landsoutside the, project, 194042, p 552; conditions to issuanceof deed and rights acquired by purchaser, 194042, p 573; cancellation of application for failure to submit proof of

reclamation, cultivation and settlement, 194244, p 79; delivery of a deed to settler on Carey Act lands, or his successor in title as not denied by reason of loss or destructionof certificate of reclamation, if other proof that the applicant is successor of the original settler is submitted, 1942 -44,

p 360; power of entryman to sell his interest in reclaimedland before he has paid the amount due to the state, 1948 -50,

p 370.

555. 150

ATTY. GEN. OPINIONS: Cancellation of application for

failure to submit proof of reclamation, cultivation and set-

tlement, 194244, p 79; power of entryman to sell his interestin reclaimed land before he has paid the amount due to

the state, 194& 50, p 370. 555. 180

NOTES OF DECISIONS

Provisions as to time for applying full amount of waterto beneficial use did not apply to Carey Act land. Re Des- chutes River, ( 1930) 134 Or 623, 286 P 563, 294 P 1049.

555.370

ATTY. GEN. OPINIONS: Authority of State Reclamation

560

1

u

r

u

SUPERSEDED

C J Commission to sign a waiver of all its lien, claim or interestupon the crops to be grown upon lands sold under contract

by the state, 1930-32, p 597.

555.380

ATTY. GEN. OPINIONS: Crediting of moneys in operation

561

555.410

and maintenance fund of irrigation project to project fundfor distribution to contract holders, and the disbursement

of all moneys in project fund, 1924 -26, p 462.

555.410

CASE CITATIONS: Mahan v. Olcott, ( 1913) 65 Or 537, 133

P 836.

SUPERSEDED

J

562

SUPERSEDED

u

Chapter 561

Department of Agriculture

Chapter 561

ATTY. GEN. OPINIONS: Authority to require producers offluid milk to be licensed, 1948 -50, p 98.

561.010

ATTY, GEN. OPINIONS: The department of agriculture

leasing fairgrounds to the Federal Government for militarypurposes, 1942 -44, p 63.

561. 060

ATTY, GEN. OPINIONS: This section as relating to department employes not otherwise specifically provided for, 193840, p 31; state officers managing state fair as notrequired to post bond with racing commission, 1950 -52, p21; authority to determine personnel salaries, ( 1970) Vol 34, p 977.

561. 090

ATTY, GEN.- OPIMONS: Reimbursement of director for

traveling expenses incurred in attending meetings of potatocommission as ex- officio member, 1948 -50, p 333.

561. 150

ATTY. GEN. OPINIONS: Moneys received by the department of agriculture which are subject to tithing tax, 1940 -42, p 34; automobiles and tires purchased for one division ofthe department of agriculture as transferable for the use

of another division, 1940 -42, p 620; depositing milk controlequalization moneys and license and poundage fees in the

Milk Control Account, 194244; p 249; authority of StateTreasurer, 1958.60, p 132.

561. 180

ATTY. GEN. OPINIONS: Constitutionality of bill authorizing board of agriculture to delegate in its discretion all orany of its powers and duties to Milk Marketing Administra- tor, 1950 -52, p 187.

561. 190

NOTES OF DECISIONS

Regulation of weight and size of bread to prevent decep- tion is a valid and constitutional exercise of police power. State v. Hudson House, Inc., (1962) 231 Or 164, 371 P2d 675.

FURTHER CITATIONS: Seale v. McKennon, ( 1959) 215 Or562, 336 P2d 340.

ATTY. GEN. OPINIONS: Rule requiring labeling as to butterfat, ( 1970) Vol 34, p 956.

561. 240

ATTY. GEN. OPINIONS: Authority to base assessment onother factor, ( 1968) Vol 34, p 99.

561.510


563

SUPERSEDED

Chapter 563

Agricultural Experts

563.010

ATTY. GEN. OPINIONS: Employment as expert of countyfruit inspector and payment of additional compensation,

1928-30, p 112; employment of same person as expert andas county horticultural inspector, 1928 -30, p 128.

564

SUPERSEDED

J

Chapter 564

Wild Flowers

SK020

ATTY. GEN. OPWIONS: Transportation of wild plants dugupon land belonging to shipper or with written permissionof owner of land, 1930 -32, p 196.

61*+1

SUPERSEDED

Chapter 565

Fairs and Exhibits

Chapter 565

ATTY. GEN. OPINIONS: Commission authority to regulatedistribution of political handbills, ( 1968) Vol 34, p 131.

565.020

ATTY. GEN. OPINIONS: Power of commission to enter

contracts extending beyond term of office of majority ofits members, 1956 -58, p 208; authority to determine personnel salaries, ( 1970) Vol 34, p 977.

565.040

ATTY. GEN. OPINIONS: Liability for injuries to state fairpatrons, 1940 -42, p 49; permission for use of facilities at statefairgrounds for private purposes, 1940 -42, p 135.

565.050

ATTY. GEN. OPINIONS: The broad discretion granted for

the conduct of the state fair as subject to exclusive statu-

tory powers of Oregon Liquor Control Commission, 1942 -44, p 354; pony giveaway at state fair rodeo show as a lottery, 1962 -64, p 280.

565.070

ATTY. GEN. OPINIONS: State officers managing state fairas not required to post bonds with racing commission, 1950 -52, p 21.

565.080

ATTY. GEN. OPINIONS: Jurisdiction for police purposes

possessed by City of Salem and by fair board over statefairgrounds, 1926 -28, p 397; authority of City of Salem torequire food establishments on fairgrounds to pay licensefees and secure permits, 1930 -32, p 744; ordinances of Cityof Salem as effective within state fairgrounds, 1934 -36, p817; appointment of marshals to keep order on grounds andin buildings at state fair, 1934 -36, p 817; leasing fairgroundsto the Federal Government for military purposes, 1942 -44, p 63; necessity that Oregon State Fair furnish surety bondand carry public liability insurance, 1950 -52, p 21; executionof contracts expiring after majority of executing members'

terms expire, 1956 -58, p 208; redelegation by board of discretionary powers, 1956 -58, p 208; authority to house andfeed 4 -H and F.F.A. exhibitors, 1958 -60, p 119; pony giveaway at state fair rodeo show as a lottery, 1962 -64, p 280; payment by commission of special - assessment on streetsadjacent to fairgrounds, 1962 -64, p 354.

565. 100

ATTY. GEN. OPINIONS: Disposition of any profit fromoperation of dormitory and cafeteria, 1958 -60, p 119; payment of special assessments on streets adjacent to state

fairgrounds, 1962 -64, p 354.

565.120

ATTY. GEN. OPINIONS: Licensing of businesses on statefairgrounds for more than two weeks in a year, 1940 -42,

p 79; redelegation by board of-discretionary powers, 1956 -58, p 208; execution of contracts expiring after- majority ofexecuting members' terms expire, 1956 -58, p 208; licensinga business to be conducted other than during the state fair, 1966 -68, p 300; duty to obtain auctioneer's license to auctionproperty at the fair, ( 1970) Vol 34, p 952.

565. 130

ATTY. GEN. OPINIONS: The broad discretion granted for

the conduct of the state fair as subject to exclusive statu-

tory powers of Oregon Liquor Control Commission, 1942 -44, p 354; licensing a business to be conducted other thanduring the state fair, 1966 -68, p 300; duty to obtain auctioneer's license to auction property at the fair, ( 1970) Vol 34, p 952.

565. 140

ATTY. GEN. OPINIONS: Agency's authority to make purchase contracts, 1958 -60, p 85; authority to approve ordisapprove claims, 1958 -60, p 85; authority to house andfeed 4 -H and F.FA. exhibitors, 1958 -60, p 119.

565. 142

ATTY. GEN. OPINIONS: Depositing revenues in the 4- HClub and F.F.A. Building Fund, 1956 -58, p 125; agency' sauthority to make purchase contracts, 1958 -60, p 85; distribution of racing revenue after 1963 amendment, 1962 -64, p 334.

565. 150

ATTY. GEN. OPINIONS: Construction of Salem armory onOregon State Fairgrounds, 1958 -60, p 272; auditorium inseparate but connected building, 1958 -60, p 272.

565.210 to 565.330

ATTY. GEN. OPINIONS: Application of Local Budget Law

to county fair board, 1964 -66, p 193; authorizing countyfairs, 1964 -66, p 261; expenditure of county funds for countyfair, ( 1968) Vol 34, p 309.

565.210

ATTY. GEN. OPINIONS: Continued existence of the board

as dependent upon the holding of a fair, 1938 -40, p 293; member of the county fair board as a " public officer," 1948 -50, p 374; respective powers of the county court andthe fair board, 1950 -52, p 264; whether a member of thelegislature may receive compensation for services as manager of a county fair, 1952 -54, p 97; fair board officers asprecinct committeemen, 1954 -56, p 8; county fair as public

566

SUPERSEDED

institution, 1956 -58, p 159; coexistence of county and districtfairs, county agricultural exhibitions, 1962 -64, p 184; authority to lease part of fairgrounds to private radio station, 1964 -66, p 261; creation and organization of county fairboard, ( 1968) Vol 34, p 309.

565.220

ATTY. GEN. OPINIONS: Creation and organization of

county fair board, ( 1968) Vol 34, p 309.

ATTY. GEN. OPINIONS: Board membership as public office, .1948 -50, p 374; delineation -of the respective powers ofthe county court and the fair board, 1950 -52, p 264; exerciseof sovereign powers by fair " manager," 1952 -54, p 97; coexistence of county and district fairs, 1962-64, p' 184; authorityto lease part of fairgrounds to private radio station, 1964 -66,

p 261.

565.240

ATTY. GEN. OPINIONS: Board membership as public office, 1948 -50, p 374; exclusive management and control offair and fairgrounds by board, 1950 -52, p 264; creation andorganization of county fair board, ( 1968) Vol 34, p 309.

565.250

ATTY. GEN. OPINIONS: As delegation to the board of a

portion of the sovereign powers, 1948 -50, p 374; creation

0and organization of county fair board, ( 1968) Vol 34, p 309.

565.260

ATfY. GEN. OPINIONS: Coexistence of county and districtfairs, 1962 -64, p 184; distribution of funds to county fairassociation organized prior to 1913, ( 1968) Vol 34, p 309.

565.280

ATTY. GEN. OPINIONS: Distribution of unexpended bal-

ance, 1950 -52, p 264; statutory limits for contribution ofcounty funds for fair purposes, ( 1968) Vol 34, p 309.

565.290

ATTY. GEN. OPINIONS: As delegation to the board of a

portion of the sovereign powers, 1948 -50, p 374; distributionof unexpended balance, 1950 -52, p 264; statutory limits forcontribution of county funds for fair purposes, ( 1968) Vol34, p 309.

565.310

ATTY. GEN. OPINIONS: The reserve fund held by thecounty treasurer as usable by the county fair board on abuilding program and general improvement of the fair-

0567

565.630

grounds, 1944 -46, p 407; delineation of the respective powersof the county court and the fair board, 1950 -52, p 264.

565.315

ATTY. GEN. OPINIONS: Statutory limits for contributionof county funds for fair purposes, ( 1968) Vol 34, p 309.

565.330

ATTY. GEN. OPINIONS: Distribution of unexpended bal-

ance, 1950 -52, p 264; limitation on county levy to erectbuildings on county fairgrounds, 1960 -62, p 189; limitationon authority of a county to expend funds for county fairpurposes, 1960 -62, p 233; statutory limits for contributionof county funds for fair purposes, ( 1968) Vol 34, p 309.

565.510

ATTY. GEN. OPINIONS: Coexistence of county and districtfairs, supervision of fair by county court, 1962 -64, p 184; expenditure of county funds for county fair, ( 1968) Vol 34, p 309.

565.520

ATTY. GEN. OPINIONS: Respective powers of county

court and board in management of fair, 1950 -52, p 264; exercise of sovereign powers by fair " manager," 1952 -54,

p 97; coexistence of county and district fairs, 1962 -64, p 184.

565.540

ATTY. GEN. OPINIONS: Coexistence of county and districtfairs, 1962 -64, p 184.

565.560

ATTY. GEN. OPINIONS: County agricultural exhibitions, 1962 -64, p 184.

565.570

A=. GEN. OPINIONS: County agricultural exhibitions, 1962 -64, p 184.

565.610

ATTY. GEN. OPINIONS: Use of State Fair Account to

enforce this section, 1958 -60, p 119.

565.620


enforce this section, 1958 -60, p 119.

565.630


enforce this section, 1958 -60, p 119. SUPERSEDED

Chapter 566

Extension and Field Work; Rural Rehabilitation

Chapter 566

ATTY. GEN. OPINIONS: County extension agent as publicofficer employed by state, 1956 -58, p 213.

566.220

ATTY. GEN. OPINIONS: Authority of the Secretary of Stateto match federal funds, 1934 -36, p 83; authority to leaseDammasch State Hospital for filbert experiments, 1958 -60,

p 251.

568.240

ATTY. GEN. OPINIONS: Interest on funds as expended

only for purposes for which principal available, 193436, p419; authority of Secretary of State to audit claims incurredpursuant to appropriation by county to be matched by statefunds, 1934 -36, p 196; unexpended balances remaining infunds budgeted and appropriated for specific purposes as

reverting to the General Fund at the end of the currentfiscal year, unless the use of such funds is so limited as

to the time of expenditure thereof, 1944 -46, p 30; money

appropriated by a county for farm demonstration work aspayable to Oregon State College in one sum or in instal-

ments, 1944 -46, p 22; Oregon State College's authority toexpend more money for demonstrations and field work thanwas appropriated by the county courts for such purpose, reversion of unexpended balances to General Fund, 1948 -50,

p 243; disposition of unexpended balances, 1956 -58, p 220.

566.320

ATTY. GEN. OPINIONS: Use of Oregon Rural Rehabili-

tation Fund as only for designated purposes, 1962 -64, p 178.

586.830

ATTY. GEN. OPINIONS: Legislative authority regardingtrust fund, 1962 -64, p 178.

566.940

ATTY. GEN. OPINIONS: Use of Oregon Rural Rehabili-

tation Fund as only for designated purposes, 1962 -64, p 178.

568

SUPERSEDED

is

Chapter 567

Experimei

567.265

A=. GEN. OPINIONS: Authority of board of higher education to enter into leases with Clatsop County in connection with operation of experiment station, 1936 -38, p 468;

nt Stations

authority of Clatsop County to expend money in purchasingcattle to be used in experiment in connection with estab-

lishing pasture grasses in burned and cutover areas, 1936 -38, p 616.

569

SUPERSEDED

Chapter 568

Soil Conservation

Chapter 568

ATTY. GEN. OPINIONS: Location of state committee of-

fice, 1962 -64, p 34; sources of revenue for soil conservationdistricts, 1960 -62, p 344; taxation of interest on districtobligations, 1962 -64, p 77; supervisor of district serving aspaid employe of district, 1962 -64, p 417; eligibility to votefor supervisors, 1964 -66, p 213.

LAW REVIEW CITATIONS: 47 OLR 16- 70.

568.210 to 568.800

ATTY. GEN. OPINIONS: Supervisor of district serving aspaid employe of district, 1962 -64, p 417.

568.210

ATTY. GEN. OPINIONS: Indians as " landowners," 1950 -52,

p 53; soil conservation district as a municipal corporation, 1956 -58, p 70; district authority to appropriate water, 1956- 58, p 260; district court judge serving as supervisor of district, 1958 -60, p 147; soil conservation district as " state" orpublic corporation" in determining applicability of statute

of limitation to delinquent accounts, 1958 -60, p 293; districtas possessing only statutory powers, 1958 -60, p 344; districtas without power to tax, 1960 -62, p 344; auditing accountsof district, 1960 -62, p 375; landowners using district equipment, 1962 -64, p 126; district as " political subdivision" underconflict of interest statute, 1962 -64, p 417; eligibility to votefor supervisors, 1964 -66, p 213; constitutionality of voterqualification, ( 1968) Vol 34, p 263.


h ;i: * *kM

ATTY. GEN. OPINIONS: District authority to appropriatewater, 1956.58, p 260; soil conservation as exercise of policepower, 1960 -62, p 344.

568.280

ATTY. GEN. OPINIONS: Location of committee office,

1962 -64,. p 34.

568.270

ATTY. GEN. OPINIONS: Supervisor as public officer,

1956 -58, p 59.

568.300

ATTY. GEN. OPINIONS: Persons eligible to sign petition

for soil conservation district, 1940 -42, p 202; combiningpetitions for addition of same area to two different districts,

1954 -56, p 171; district activities as limited to property within district, 1962 -64, p 126; eligibility to vote for supervisors, 1964 -66, p 213.

568.310

ATTY. GEN. OPINIONS: Hearing on addition to either oftwo districts, 1954 -56, p 171.

568.320

ATTY. GEN. OPINIONS: District activities as limited to

property within district, 1962 -64, p 126.

568.330

ATTY. GEN. OPINIONS: Including only part of area proposed to be annexed, 1954 -56, p 171.

568.350

ATTY. GEN. OPINIONS: Payment of polling superintendentand election board members, 1938 -40, p 669.

568370

ATTY. GEN. OPINIONS: Persons entitled to vote as

owners," 1940 -42, p 99; landowners authorized to vote byattorney -in -fact, 1940 -42, p 312; federal lands as includedin soil conservation district, 1940 -42, p 523; manager of land, under power of attorney, as a landowner within the meaning of this section, and as authorized to vote, 1942 -44, p341; right of Indians owning land to vote, 1950 -52, p 53; district activities as limited to property within district, 1962 -64, p 126; eligibility to vote for supervisors, 1964 -66, p 213; constitutionality of voter qualification, ( 1968) Vol 34, p 263.

568.380

ATTY. GEN. OPINIONS: Appropriations for use of soil

conservation committee in carrying out provisions of soilconservation districts law as available for the payment of

expenses of the committee for annual audits, premiums on

official bonds, office supplies and similar expenses, 1942 -44,

p 159.

568.390

ATTY. GEN. OPINIONS: Where referendum on formation

of district does not conform to requirements, holding secondreferendum without new petition, 1940 -42, p 83; electionboard officers appointed to conduct referenda as required

to take an oath of office, 1944-46, p 381.

568.400


1956 -58, p 59.

568.410

ATTY. GEN. OPINIONS: Adoption of name misrepresenting

570

is

SUPERSEDED

character and powers, 1958 -60, p 343; deposit of surplusdistrict funds in savings and loan. association, 1960 -62, p344; district as a public corporation, 1960 -62, p 349; auditingaccounts of district, 1960 -62, p 375; district as " politicalsubdivision" under conflict of interest statute, 1962 -64, p417; liability of supervisors and employes for injuries fromrented equipment, 196466, p 154; constitutionality of voterqualification, ( 1968) Vol 34, p 263.

568.420

ATTY. GEN. OPINIONS: Requirement that district have

corporate seal, 1940 -42, p 82; soil conservation as exerciseof police power, 1960 -62, p 344.

568.450

ATTY. GEN. OPINIONS: Hearing on addition to either oftwo districts, 1954 -56, p 171; application of land use regulations to annexed territory, 1956 -58, p 70; district activitiesas limited to property within district, 1962 -64, p 126; eligibility to vote for supervisors, 196466, p 213.

568.440

A= GEN. OPINIONS: Eligibility to vote for supervisors, 1964 -66, p 213.

568.445

ATTY. GEN. OPINIONS: Eligibility to vote for supervisors, 196466, p 213.

56& 450

ATTY. GEN. OPINIONS: Eligibility to vote for supervisors, 1964 -66, p 213.

568.460

ATTY. GEN. OPINIONS: Eligibility to vote for supervisors, 196466, p 213.

568.470

ATTY. GEN. OPINIONS: Consolidated district land use

ordinances, 1958 -60, p 171; effect of consolidating two districts, 1958 -60, p 171.

56& 490

ATTY. GEN. OPINIONS: Insuring equipment through stateinsurance coverage, 1956 -58, p 273.

568.520

ATTY. GEN. OPINIONS: Indians as " landowners," 1950 -52,

p 53; district court judge serving as supervisor of district, 1958 -60, p 147.

56& 530


1956 -58, p 59; district court judge serving as supervisor ofdistrict, 1958 -60, p 147.


1956 -58, p 59.

568.660

568.550

ATTY. GEN. OPINIONS: Authority to purchase public liability insurance for the protection of the supervisors of asoil conservation district, 1944 -46, p 61; the supervisor ofa soil conservation district as required to take the oath of

office, 1944 -46, p 177; appropriation of water by district, 1956 -58, p 260; soil conservation districts as " state agencies" for state liability insurance coverage purposes, 1956 -58, p273; district court judge serving also as supervisor of soilconservation district, 1958 -60, p 147; protection of districtsupervisors from personal liability, 1960 -62, p 167; depositof funds in savings and loan association, 1960 -62, p 344; landowners using district equipment, 1962 -64, p 126; employment of supervisor as equipment operator, 1962 -64, p417; liability of supervisors and employes for injuries fromrented equipment, 1964 -66, p 154; authority to enter privateland to view gravel operations, 1964 -66, p 199; liability ofsupervisors for torts of employes, 1964 -66, p 294; equipmentrental liability agreement, 1964 -66, p 334; director as suretyon treasurer' s bond' ( 1968) Vol 34, p 298.

ATTY. GEN. OPINIONS: As prohibiting name which mis- represents powers of district, 1958 -60, p 343.

56& 560

ATTY. GEN. OPINIONS: Election as required where onlyone candidate nominated for each supervisor position,

1940 -42, p 666; district court judge serving also as supervisorof soil conservation district, 1958 -60, p 147; local governingbody of districts, 1960 -62, p 344; vacancy in office of supervisor by moving from district, 1964 -66, p 213.

568.610

ATTY. GEN. OPINIONS: Auditing accounts of district, 1960 -62, p 375; director as surety on treasurer's bond, ( 1968) Vol 34, p 298.

568.630

ATTY. GEN. OPINIONS: Application of land use regula-

tions to annexed territory, 1956 -58, p 70; consolidated district land use ordinances, 1958 -60, p 171; effect of consolidating two districts, 1958 -60, p 171; procedure for reclassification of land from one land -use zone to another, 1966 -68,

p 631; constitutionality of voter qualification, ( 1968) Vol 34, p 263.

56& 640

ATTY. GEN. OPINIONS: Application of land use regula-

tions to annexed territory, 1956 -58, p 70; consolidated district land use ordinances, effect of consolidating two districts, 1958 -60, p 171; procedure for reclassification of landfrom one land -use zone to another, 1966 -68, p 631.

6'_:t:l *fll

ATTY. GEN. OPINIONS: Land -use regulations as subject

to referendum procedure, 1958 -60, p 171; procedure for reclassification of land from one land -use zone to another,

1966 -68, p 631.

568.660

ATTY. GEN. OPINIONS: Land -use regulations as subject

to referendum procedure, 1958 -60, p 171; procedure for reclassification of land from one land -use zone to another,

571

SUPERSEDED

568.670

1966 -68, p 631; constitutionality of voter qualification, (1968) Vol 34, p 263.

56& 670

ATTY. GEN. OPINIONS: Procedure for reclassification of

land from one land -use zone to another, 1966 -68, p 631.

56& 680

ATTY. GEN. OPINIONS: Procedure for reclassification of

land from one land -use zone to another, 1966 -68, p 631.

56& 690

ATTY. GEN. OPINIONS: Procedure for reclassifying landfrom one zone to another, 1966 -68, p 631; application ofdistrict regulations to added territory, 1956 -58, p 70.

568.730

ATTY. GEN. OPINIONS: Authority to enter private landto view gravel operations, 1964 -66, p 199.

568.740

ATTY. GEN. OPINIONS: Procedure for reclassifying landfrom one zone to another, - 1966 -68, p 631.

668.770

ATTY. GEN. OPINIONS: Procedure for reclassifying landfrom one zone to another, 1966 -68, p 631.

568.780

ATTY. GEN.' OPIIVIONS: Authority of agencies to vote byrepresentatives at soil conservation elections, 1940 -42, p 103.

568.790

ATTY. GEN. OPINIONS: Deposit of surplus district funds

in savings and loan association, 1960 -62, p 344; districts asoperating with funds raised by taxation, 1960 -62, p 375.

572

SUPERSEDED

Chapter 570

Plants; Inspection, Quarantine,

Pest and- Weed Control

570. 170

ATTY. GEN. OPINIONS: Authority to pull trees out by theroots, 1928 -30, p 543; authority to destroy orchard infestedby codling moth, 1940 -42, p 67; personal liability of landowner for eradication, 1954 -56, p 191..

570.360

ATTY. GEN. OPINIONS: Remedy when the district attorney refuses to act on complaint, 1930 -32, p 252.

570.405

ATTY. GEN. OPINIONS: Particular procedure governingquarantine referred to in this section, 194648, p 208.

570.505 to 570.575

ATTY. GEN. OPINIONS: As requiring property owner tocontrol or destroy weeds before they produce seeds, 1956 -58, p 177.

570.505

ATTY. GEN. OPINIONS: Regarding the liability of the

county and county officers in the discharge of duties underthe weed control law, 1944 -46, p 265.

570.520

ATTY. GEN. OPINIONS: County weed control inspectorsas precinct committeemen, 1954 -56, p 8.

570.535

ATTY. GEN. OPINIONS: Ordering destruction of weedsbefore they go to seed, 1956 -58, p 177.

570.545

AM. GEN. OPINIONS: Accrual of interest on expenses

of weed control, 1954 -56, p 191.

570.550

ATTY. GEN. OPINIONS: Interest on charges and expenses,

1954 -56, p 191; repeal by implication of last sentence of thissection, 1954 -56, p 191.

570.570

ATTY. GEN. OPINIONS: This section as applying only toweed control districts, 1944 -46, p 422.

573

SUPERSEDED

Chapter 571

Nurseries and Nurserymen

571. 055

ATIY. GEN. OPINIONS: Farmer selling nursery stock toneighbor, 1920 -22, p 499; right of association which acts asmarket agent for farmers selling nursery stock to qualify, 1928 -30, p 522; grower not soliciting orders, dealing in,

selling or distributing nursery stock, 1932 -34, p 302; sale ofexcess bulbs or plants, 1930 -32, p 557.

571. 155

A=. GEN. OPINIONS: Inspection tags as furnished for

fee to cover costs, 1928 -30, p 409.

574

l u

SUPERSEDED

L_J

Chapter 573

Control of Application ofAgricultural Chemicals

Chapter 573

CASE CITATIONS: Loe v. Lenhard, ( 1961) 227 Or 242, 362

P2d 312.

573.001

ATTY. GEN. OPINIONS: Constitutionality of proposed legislation barring collective bargaining between agriculturalemployes and employers over use of pesticides, ( 1971) Vol

35, p 744.

573.016

ATTY. GEN. OPINIONS: Constitutionality of proposed legislation barring collective bargaining between agriculturalemployes and employers over use of pesticides, ( 1971) Vol

35, p 744.

573.210

NOTES OF DECISIONS

This statute should be liberally construed in favor of the

claimant. Loe v. Lenhardt, ( 1961) 227 Or 242, 362 P2d 312;

Cross v. Harris, ( 1962) 230 Or 398, 370 P2d 703. Substantial compliance with former similar section was

held sufficient in the absence of a showing that defendanthad been prejudiced. Loe v. Lenhardt, ( 1961) 227 Or 242,

362 P2d 312.

The requirement of notice is mandatory but if not allegedby claimant, defendant must allege and prove failure tocomply with the statute or the objection is waived. Crossv. Harris, ( 1962) 230 Or 398, 370 P2d 703.

573.260


573.545

ATTY. GEN. OPINIONS: Control and regulation of appli-

cation of chemicals, 1950. 52, p 213.

575

SUPERSEDED

C J

576

SUPERSEDED

JChapter 576

Agricultural Marketing Generally

Chapter. 576

ATTY. GEN. OPINIONS: Constitutionality of this chapter, 1952 -54, p 109; creation and purposes of commodity commissions, 1952 -54, p 215; collection of tax on commodityproduced in another state, 1954 -56, p 185; commission asstate instrumentality exercising sovereign powers, 1958 -60, p 372; constitutionality of proposed bill to assess milk producers, 1966 -68, p 203.

576.009

AM. GEN. OPINIONS: Defining market and marketing, 1960 -62, p 424.

576.013

AM. GEN. OPINIONS: Defining market and marketing, 1960 -62, p 424.

576.051

AM. GEN. OPINIONS: Authority of State Departmentof Agriculture to collect tax for commission, 1954 -56, p 185; cooperative as " first purchaser," 1956 -58, p 231; commissionas state instrumentality exercising sovereign powers, 1958- 60, p 372.

576.085

ATTY. GEN. OPINIONS: Disposition of excess funds upon

failure of referendum, 1952 -54, p 215.

576.075

AM. GEN. OPINIONS: When hearings required in con-

gressional districts, 1952 -54, p 215.

576.085

ATTY. GEN. OPINIONS: Commission authority to investi- gate methods of increased production, 1952 -54, p 215; constitutionality of proposed bill to assess milk producers, 1966 -68, p 203.

576. 135

AM. GEN. OPINIONS: Constitutionality of proposed billto assess milk producers, 1966 -68, p 203.

576.205

AM. GEN. OPINIONS: Commodity commission chairmanserving as executive secretary of commission, 1956 -58, p 264; commission as " state commission" under ORS chapter 278,

1958 -60, p 372.

576.305

ATTY. GEN. OPINIONS: Research into the cultivation of

commodities, 1952 -54, p 215; as governing activities of Ore- gon Filbert Commission, 1954 -56, p 111; salary of commission member serving as executive secretary, 1956 -58, p 283; effect of State Civil Service Law on commodity commissionemployes, 1958 -60, p 259; commission as " state commission" under ORS chapter 278, 1958 -60, p 372.

576.307

AM. GEN. OPINIONS: Commission property as coveredby State Restoration Fund, 1958 -60, p 372.

576.311

ATTY. GEN. OPINIONS: Commission property as coveredby State Restoration Fund, 1958 -60, p 372.

576.325

ATTY. GEN. OPINIONS: Constitutionality of delegatingpower to tax to commission, 1952 -54, p 109; computationof tax base, 1952 -54, p 215; increase of producers' assessments to obtain revenue for advertising, 1954 -56, p 111; collection of tax on commodity produced in another state, 1954 -56, p 185; marketing cooperative as " first purchaser," 1956 -58, p 231; commission as " state commission" underORS chapter 278, 1958 -60, p 372; constitutionality of proposed bill to assess milk producers, 1966 -68, p 203.

576.345

AM. GEN. OPINIONS: Collection of tax where commod-

ity sold to an out -of -state purchaser, 195456, p 185.

576.355

AM. GEN. OPINIONS: Time of first penalty payment, 1956 -58, p 231.

578.375

AM. GEN. OPINIONS: Increase of producers' assess-

ments to obtain revenue for advertising, 1954 -56, p 111; collection of beef commission tax by state brand inspectors, 195456, p 185; legislative intent to limit expenditures despitecontinuing appropriations, 1960 -62, p 289.

57 &405



577

SUPERSEDED

Chapter 578

Oregon Wheat Commission

Chapter 578

ATTY. GEN. OPINIONS: Commission authority to waivetax, 1956 -58, p 285.

578.010

ATTY. GEN. OPINIONS: Liability of Indian on Umatillareservation for payment of tax on wheat grown on leasedlands and paid in lieu of cash as rental and thereafter resold

through commercial channels, 1946 -48, p 308.

578. 140



578.210

ATTY. GEN. OPINIONS: Liability for tax where truckerpurchases wheat from grower and resells to dealer, 1946. 48,

p 258; waiver of tax less than $ 1, 1956 -58, p 285.

578.230

ATTY. GEN. OPINIONS: Refunds, 1956 -58, p 267; waiverof tax less than $ 1, 1956 -58, p 285.

is

578

SUPERSEDED

Chapter 579

Oregon Potato Commission

579.050

ATTY. GEN. OPINIONS: Per diem payment for the admin-

istrator and ex- officio members of the commission, 1948 -50,

p 333.

579.070

ATTY. GEN. OPINIONS: Per diem payment for the administrator and ex officio members of the commission, 1948 -50, p 333.

579

579. 160


LAW REVIEW CITATIONS: 47 OL•R 368; 48 OLR 117.

579.210

ATTY. GEN. OPINIONS: Traveling expenses as administrative costs, 1948 -50, p 333.

SUPERSEDED

Chapter .583

Milk Marketing, Production and Distribution

Chapter.583

NOTES OF DECISIONS

In relying upon the preamble to the Milk Marketing Act, 1933 ( 2d s. s.) c. 72, in construing the Act, the ordinary rulesof construction should be.observed. Safeway. Stores v. StateBd. of Agriculture (concurring opinion adopted in majorityopinion), ( 1953) 198 Or 43, 255 P2d 564.

FURTHER CITATIONS: United States v. Sunshine Dairy, Inc., ( 1954) 215 F2d 879; Curly' s• Dairy,. Inc: v., State,.Dept. of Agriculture, ( 1966) 244 Or 15, 415 P2d 740.

ATTY. GEN. OPINIONS: Producer of fluid milk selling todistributor as a " shipper," 1948 -50, p 98; constitutionalityof dealer's license measured by amount of buttermilk received and handled, 1952 -54, p 104; authority to promulgateregulations regarding unfair trade practices, 1952 -54, p 209; disbursing funds in General Fund, Milk Control Account, 1960 -62, p 255; validity of department regulations authorizing off - premises processing and bottling, 1964 -66, p 219; constitutionality of proposed bill to assess milk producers, 1966- 68, p 203.

583.007

NOTES OF DECISIONS

Under a former similar section, specifically includingcooperative organizations," made defendant subject to the

jurisdiction of the department to order payments to be

made to producers. State Dept. of Agriculture v. Tillamook

Cheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d 592,

442 P2d 608, cert. denied, 393 US 904.

FURTHER CITATIONS: Arden Farms Co. v. State Dept.

of Agriculture, ( 1966) 245 Or 214, 420 P2d 379.

ATTY. GEN. OPINIONS: Regulation of off - premises pro-

cessing or bottling by producer - distributor, 1964 -66, p 219.

583.016

CASE CITATIONS: State Dept. of Agriculture v. Tillamook

Cheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d 592,

442 P2d 608.

ATTY. GEN. OPINIONS: Regulation of off- premises pro-

cessing or bottling by producer - distributor, 1964 -66, p 219

ATTY. GEN. OPINIONS: As not in conflict with subsection

4) of ORS 561. 150, 1958 -60, p 132.

583.076

CASE CITATIONS: State Dept. of Agriculture v. Watkins,

1966) 244 Or 484, 419 P2d 26; State Dept. of Agriculture

v. Tillamook Cheese and Dairy Assn., ( 1968) 251 Or 393,

439 P2d 592, 442 P2d 608.

CASE CITATIONS: State Dept. of Agriculture v. Watkins, 1966)- 244 Or 484, 419 P2d 26; State Dept. of Agriculture

v. Tillamook Cheese and Dairy Assn., ( 1968) 251 Or 393,

439 P2d 592, 442 P2d 608.

583.096

CASE CITATIONS: State Dept. of Agriculture v. TillamookCheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d 592, 442 P2d 608.

583. 106

NOTES OF DECISIONS

This section permits a civil action to enforce compliance

with ORS 583.530. State Dept. of Agriculture v. Watkins, 1966) 244 Or 484, 419 P2d 26.

FURTHER CITATIONS: State Dept. of Agriculture v. Tilla-

mook Cheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d

592, 442 P2d 608.

583.116


Cheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d 592, 442 P2d 608.

583. 166


4) of ORS 561. 150, 1958 -60, p 132.

583.410 to 583.565

CASE CITATIONS: Arden Farms Co. v. State Dept. of

Agriculture, ( 1966) 245 Or 214, 420 P2d 379.

583.410

CASE CITATIONS: Curly's Dairy, Inc. v. State Dept. ofAgriculture, ( 1966) 244 Or 15, 415 P2d 740; Arden FarmsCo. v. State Dept. of Agriculture, ( 1966) 245 Or 214, 420P2d 379.

ATTY. GEN. OPINIONS: Attempt to regulate price paid to

out -of -state producers for milk imported into Oregon as

interference with interstate commerce, 1962 -64, p 171; regulation of off - premises processing or bottling by producer- distributor, 1964 -66, p 219.

580

SUPERSEDED

583.415

ATTY. GEN. OPINIONS: Validity of excepting interstatecommerce, 1962 -64, p 171.

M:S : ib1

CASE CITATIONS: State Dept. of Agriculture v. Watkins, 1966) 244 Or 484, 419 P2d 26; Arden Farms_ Co. v. State

Dept. of Agriculture, ( 1966) 245 Or 214, 420 P2d 379; State

Dept. of Agriculture v. Tillamook Cheese and Dairy Assn., 1968) 251 Or 393, 439 P2d 592, 442 P2d 608.

ATTY. GEN. OPINIONS: Attempt to regulate price paid toout -of -state producers for milk imported into Oregon as

interference with interstate commerce, 1962 -64, p 171.

583.510

NOTES OF DECISIONS

The department could'establish separate market pools for

producers and producer - distributors. Curly' s Dairy, Inc. v. State Dept. of Agriculture, ( 1966) 244 Or •15, 415 P2d 740.

This section was ambiguous, and required construction

by the court. Id.

FURTHER CITATIONS: Arden Farms Co. v. State Dept. of Agriculture, ( 1966) 245 Or 214, 420 P2d 379.

583.515

CASE CITATIONS: Arden Farms Co. v. State Dept. ofAgriculture, ( 1966) 245 Or 214, 420 P2d 379.

581

583.540

ATTY. GEN. OPINIONS: Attempt to regulate price paid to

out -of -state producers for milk imported into Oregon as

interference with interstate commerce, 1962 -64, p 171; initialquota of new dairyman, 1962 -64, p 342.


Cheese and Dairy Assn., ( 1968) 251 Or 393, 439 P2d 592, 442 P2d 608.

583.530

NOTES OF DECISIONS

This section compels handlers making purchases fromother handlers to pay the minimum prices established forsales from a producer to a handler. State Dept. of Agricul- ture v. Watkins, ( 1966) 244 Or.484, 419 P2d 26.

ATTY. GEN. OPINIONS: Attempt to regulate price paid toout -of -state producers for milk imported into Oregon as

interference with interstate commerce, 1962 -64, p 171.

583.540

NOTES OF DECISIONSThis section permits a civil action to enforce compliance

with ORS 583.530. State Dept. of Agriculture v. Watkins, 1966) 244 Or 484, 419 P2d 26.

SUPERSEDED

Chapter 585

Produce Dealers

585.010

CASE CITATIONS: State v. Hurst, ( 1935) 149 Or 519, 41

P2d 1079.

ATTY. GEN. OPINIONS: When one becomes wholesale

produce dealer, 1938-40, p 350; " retailer" as used in definition of wholesale produce dealer, 1938 -40, p 353; whennonresident company classified as " wholesale produce

dealer," 1938 -40, p 4$ 6; what is included in term " wholesaleproduce dealer," 1940 -42, p 269.

585.020

CASE CITATIONS: Cancilla v. Gehlhar, ( 1933) 145 Or 184,

27 P2d 179.

ATTY. GEN. OPINIONS: Wholesale dealer peddling produce at retail, 1938 -40, p -353.

585.050

ATTY. GEN. OPINIONS: Fees of wholesale produce dealers

and branch houses thereof, 193810, p 291.

585. 160


585.220

AM. GEN. OPINIONS: Duly authorized employes of department of agriculture serving warrants-in enforcing agriculture laws, 1940 -42, p 123.

582

r

U

SUPERSEDED

Chapter 586

Warehouses; Grain Inspection

J

586. 400

CASE CITATIONS: United States Fid. and Guar. Co. v.

Long, ( 1963) 214 F Supp 307.

ATTY. GEN. OPINIONS: Liability of warehouseman whodelivers or ships grade and quantity of grain named inwarehouseman' s receipt for shrinkage of weight or quantityoccurring in transit, 1924 - 26, p 327.

58 & 410

ATTY. GEN. OPINIONS: Liability of warehouseman whodelivers or ships grade and quantity of grain named inwarehouseman' s receipt for shrinkage of weight or quantityoccurring in transit, 1924 - 26, p 327.

588. 525


586. 570

ATTY. GEN. OPINIONS: Right of consignee of a carload

of hay which has been inspected, to a grade on such haybefore taking up bill of lading, 1930 - 32, p 381.

tKl

ATTY. GEN. OPINIONS: Application of provision prohibit-

ing the breaking of seals by persons other than inspectors, 1922 - 24, p 708.

586. 650

ATTY. GEN. OPINIONS: Authority to make a differencein prices charged to grain dealers and commissioner of

public docks for overtime of inspectors, 1922 - 24, p 398; amount of payment authorized to be exacted from persons

requesting services of department to load or unload carsor cargoes of grain or hay outside of usual working hours, 1922 - 24, p 819.

586. 720

ATTY. GEN. OPINIONS: Warehouseman as exempt by thissection from the general law that prohibits delivery of goodswhen receipt is outstanding, 1924 - 26, p 313.

ki- K

Chapter 586


Long, ( 1963) 214 F Supp 307.

58& 210


Long, ( 1963) 214 F Supp 307.

ATTY. GEN. OPINIONS: Including peas and vetch in termgrain," 1938 -40, p 512; public warehouse as a " public

utility" within federal regulations, 1950 -52, p 223.

58& 300

NOTES OF DECISIONS

Surety contracts, especially those required by statute, must be strictly construed in favor of the obligor. UnitedStates Fid. and Guar. Co. v. Long, ( 1963) 214 F Supp 307.

Government agency secured by a contractual bond mustlook rust to that, allowing individual claimant to fullyrecover under statutory bond. Id.

A principal purpose is to protect those who have been

issued bonded receipts or load slips. Id.

FURTHER CITATIONS: State v. Am. Sur. Co., ( 1934) 148

Or 1, 35 P2d 487.

ATTY. GEN. OPINIONS: Discretion to refuse to approve

bond signed by stockholder of corporation which is principal on such bond, 1922 -24, p 325; applicability of ORS747. 150 [ now ORS 743.747] to this section, 1956 -58, p 249.

586.340

ATTY. GEN. OPINIONS: Storage charges for grain not

removed during crop year, 1938 -40, p 615.

586.360

NOTES OF DECISIONS: Storers have a right to demand

storage on the conditions prescribed by statute. Reeder v. No. Pac. Ry., ( 1922) 283 Fed 786.

ATTY. GEN. OPINIONS: Time within which warehouseman

is required to deliver a receipt for grain stored, 1922 -24, p780; discrimination in favor of warehouse stockholders,

1940 -42, p 624; contract to reserve space and to refusepresent demands for storage, 1940 -42, p 632.

J

586. 400


Long, ( 1963) 214 F Supp 307.

ATTY. GEN. OPINIONS: Liability of warehouseman whodelivers or ships grade and quantity of grain named in

warehouseman' s receipt for shrinkage of weight or quantityoccurring in transit, 1924 - 26, p 327.

58 & 410

ATTY. GEN. OPINIONS: Liability of warehouseman whodelivers or ships grade and quantity of grain named in

warehouseman' s receipt for shrinkage of weight or quantityoccurring in transit, 1924 - 26, p 327.

588. 525


586. 570

ATTY. GEN. OPINIONS: Right of consignee of a carload

of hay which has been inspected, to a grade on such haybefore taking up bill of lading, 1930 - 32, p 381.

tKl

ATTY. GEN. OPINIONS: Application of provision prohibit-

ing the breaking of seals by persons other than inspectors, 1922 - 24, p 708.

586. 650

ATTY. GEN. OPINIONS: Authority to make a differencein prices charged to grain dealers and commissioner of

public docks for overtime of inspectors, 1922 - 24, p 398; amount of payment authorized to be exacted from persons

requesting services of department to load or unload carsor cargoes of grain or hay outside of usual working hours,

1922 - 24, p 819.

586. 720

ATTY. GEN. OPINIONS: Warehouseman as exempt by thissection from the general law that prohibits delivery of goods

when receipt is outstanding, 1924 - 26, p 313.

ki- K

SUPERSEDED

Chapter 587

Storage of Grain as Basis of Farm Credit

587.020

ATTY. GEN. OPINIONS: Including peas and vetch in term, grain," 1938 -40, p 512.

584

SUPERSEDED

is

Chapter 596

Animals

Chapter 596

CASE CITATIONS: Seale v. McKennon, ( 1959) 215. Or 562,

336 P2d 340. -

ATTY. GEN. OPINIONS: Application to a private herd of

bison, 1962 -64, p 483; application of indemnity provisionsto imported buffalo herd, ( 1971) Vol 35, p 653.

596.010

ATTY. GEN. OPINIONS: Bison as ' livestock," 1962 -64, p483.

596.020

NOTES OF DECISIONS

Regulations promulgated pursuant to this provision to the

effect that importations of hatching eggs, baby chicks andgrowing stock must be accompanied by official health cer- tifications are not unreasonable. Must Hatch Incubator Co.

v. Patterson, ( 1927) 32 F2d 714.

ATTY. GEN. OPINIONS: Inspection of animals and is-

suance of health certificates, 1950 -52, p 97; application toa private herd of bison, 1962 -64, p 483; application of indemnity provisions to imported buffalo herd, ( 1971) Vol 35, p653.

596.050


4) of ORS 561. 150, 1958 -60, p 132.

596.040


bison, 1962 -64, p 483.

596.075

ATTY. GEN. OPINIONS: As not in conflict with pharmacylaw, 1952 -54, p 7.

596.210

ATTY. GEN. OPINIONS: Inspection of animals and is-

suance of health certificates, 1950 -52, p 97; bison aslivestock," 1962 -64, p 483.

596.311 to 596.500


bison, 1962 -64, p 483.

596.311

ATTY. GEN. OPINIONS: Issuance of health certificate fol-

lowing examination, 1950 -52, p 97; when and by whomexamination should be made, 1950 -52, p 97.

596.341

ATTY. GEN. OPINIONS: Indemnification for destruction of

imported buffalo, ( 1971) Vol 35, p 653.

ATTY. GEN. OPINIONS: Indemnification for destruction of

imported buffalo, ( 1971) Vol 35, p 653.

596.620 to 596.681


bison, 1962 -64, p 483; application to buffalo herd, ( 1971) Vol35, p 653.

596.650

ATTY. GEN. OPINIONS: Application to buffalo herd, ( 1971)

Vol 35, p 653.

595

SUPERSEDED

Chapter 599

Livestock Auction Markets; Stockyards; Auction Sales

Chapter 599

CASE CITATIONS: Seale v. McKennon, ( 1959) 215 Or 562, 336 P2d 340.

ATTY. GEN. OPINIONS: Livestock auction excepted from

general auctioneers' law, 1958 -60, p 84.

599.205 to 599.451

ATTY. GEN. OPINIONS: Livestock auction licensees ex-

cepted from general auctioneers' law, 1958 -60, p 84.

599.235

ATTY. GEN. OPINIONS: As not conflicting with subsection4) of ORS 561. 150, 1958 -60, p 132.

599.455 to 599.495

ATTY. GEN. OPINIONS: Livestock auction excepted from

general auctioneers' law, 1958 -60, p 84.

J

596

SUPERSEDED

is

Chapter 600

Swine Feeding

Chapter 600 600.030

ATTY. GEN. OPINIONS: Requirement that licensed prem- ATTY. GEN. OPINIONS: As not in conflict with subsection

ises be in sanitary condition, 1960 -62, p 10. 1 ( 4) of ORS 561. 150, 1958 -60, p 132.

587

SUPERSEDED

Chapter 601

Dead Animals

601. 040 601.090

ATrY. GEN. OPINIONS: As not in conflict with subsection CASE CITATIONS:, Keller v. Gibson Packing Co., ( 1953)

4) of ORS 561. 150, 1958-66; p 132. 198 Or 510, 257 P2d 621.

C

l u

598

SUPERSEDED

Chapter 602

Bees

Chapter 602

A=. GEN. OPINIONS: Conviction for failure to register

as apiary as bar to subsequent prosecution in same year, 1948 -50, p 116; this chapter is constitutional, 1950 -52, p 213.

602.020

ATTY. GEN. OPINIONS: Constitutionality of the law concerning bees, 1950 -52, p 213.

602.090

ATTY. GEN. OPINIONS: Conviction for failure to register

589

as apiary as bar to subsequent prosecution in same year, 1948 -50, p 116.

602. 180

A=. GEN. OPINIONS: Conviction for failure to register


602.990

ATTY. GEN. OPINIONS: Conviction for failure to register


SUPERSEDED

Chapter 603

Meat Dealers and Slaughterhouses; Humane Slaughter

Chapter 603

A= GEN. OPINIONS: Defining " wholesale," 1952 -54, p257; proprietor of cold storage or locker plant receiving foodfor storage, 1956.58, p 48.

603.010

ATTY. GEN. OPINIONS: Licensing employes of a personlicensed as a " meat dealer," 1930 -32, p 383.

603.020

ATTY. GEN. OPINIONS: Meaning of term " wholesaler", 1952 -54, p 257.

603.030

ATTY. GEN. OPINIONS: Licensing of employes of a personlicensed as a " meat dealer," 1930 -32, p 383; requiring acompany to obtain meat dealer's licenses for. each of itsplants, 1946 -48, p 289; closing establishments for violations, 1948 -50, p 68; licensing of persons who slaughter animals, 1956 -58, p 48.

603.033

ATTY. GEN. OPINIONS: As not providing exemptions forprovisions other than licensing, 1956 -58, p 48.

603. 180


4) of ORS 561. 150, 1958 -60, p 132.

590

SUPERSEDED

J

is

Chapter 604

Brands and Marks

Chapter 604

CASE CITATIONS: Swift & Co. v. Peterson, ( 1951) 192 Or

97, 233 P2d 216.

ATTY. GEN. OPINIONS: Personal liability of brand inspector, 1950 -52, p 191; brand inspection of meat food animals, 1956 -58, p 48; constitutionality of proposed brand inspectionbill, ( 1969) Vol 34, p 547.

604. 110

NOTES OF DECISIONS

This section, it seems, contemplates that the certificate

of a brand as filed shall be recorded in full, and the entryin some book of a memorandum of its contents is not a

compliance with the statute. Brown v. Moss, ( 1909) 53 Or

518, 101 P 207, 18 Ann Cas 541.

The intent of 1915 c. 33 was to provide for the recordingof brands, to create an exclusive ownership of and a vestedright in a particular brand after it had been recorded, and

to prevent any other person from claiming or asserting anyright to such recorded brand, to establish prima facie own-

ership and right of possession of the owner of such a brandin or to any animal marked with such brand, and to declareincompetent any parol evidence of the ownership of a recorded brand. State v. Warner, ( 1919) 91 Or 11, 178 P 221.

FURTHER CITATIONS: Swift & Co. v. Peterson, ( 1951) 192

Or 97, 233 P2d 216.

604.130

NOTES OF DECISIONS

The state can regulate the use of brands by providingthat one brand can be used by only one stock owner. Statev. Randolph, ( 1917) 85 Or 172, 166 P 555.

604.140

CASE CITATIONS: Miller v. Lillard, ( 1961) 228 Or 202, 364

P2d 766.

604. 150

CASE CITATIONS: Miller v. Lillard, ( 1961) 228 Or 202, 364P2d 766.

604. 160

NOTES OF DECISIONS

In a prosecution for larceny of a steer, evidence of theassignment of a brand several months after the date of the

larceny was inadmissible, although harmless. State v. Garrett, ( 1914) 71 Or 298, 141 P 1123.

In a prosecution for the unauthorized taking of an unbranded calf alleged to belong to a named owner it wasnot error to receive in evidence the copy of a brand recordedand owned by the alleged owner and his brother, and to

permit oral evidence which, besides identifying the brothers, showed that the brand was used only upon the cattle ofthe brother named as owner of the calf, including a cowwhich bore the brand and was the mother of the calf. Statev. Opie, ( 1946) 179 Or 187, 170 P2d 736.

604.180

NOTES OF DECISIONS


1. In general

A recorded brand is not constructive notice of ownershipbut merely furnishes evidence thereof. Stewart v. Hunter, 1888) 16 Or 62, 16 P 876, 8 Am St Rep 267. A brand is not proof of absolute ownership of the branded

animal but is only prima facie evidence of title. Jewell v. Harper, ( 1955) 205 Or 1, 285 P2d 133.

A certificate of brand registration was admissible in evi-

dence, even though merely a photocopy, where it was theoriginal certificate issued to the owner by the state. Millerv. Lillard, ( 1961) 228 Or 202, 364 P2d 766.

2. ConstitutionalitySince this section does not make the presence of a re-

corded brand on an animal conclusive evidence of owner-

ship it does not violate the constitution. State v. Randolph, 1971) 85 Or 172, 166 P 555.

3. Recorded brand as exclusive evidence

An instruction in a prosecution for larceny of animalsthat ownership of the property may be shown by proofother than by a recorded brand was proper. State v. Hen- derson, ( 1914) 72 Or 201, 143 P 627.

4. Record as prima facie evidence

The prima facie case as to title made by the copy of arecord may be overcome by competent proof, the effect ofthe recorded brand as evidence being for the jury. Brownv. Moss, ( 1909) 53 Or 518, 101 P 207, 18 Ann Cas 541.

Proof that cattle were branded with complainants' brand

is prima facie evidence of ownership but whether it is sufficient to satisfy the jury beyond a reasonable doubt is forthe jury to decide. State v. Moss, ( 1920) 95 Or 616, 182 P149, 188 P 702.

A properly recorded brand and earmark was prima facieevidence of ownership of the animal on which found. Statev. Brinkley, ( 1909) 55 Or 134, 104 P 893, 105 P 708.

Where complainant had his brand recorded under the

1915 Act, the defendant in a prosecution for larceny of asteer could not introduce evidence of another' s unrecorded

similar brand to disprove complainant' s ownership. Statev. Randolph, ( 1917) 85 Or 172, 166 P 555.

A certified copy of the brand of the prosecuting witnessrecorded after the date of the larceny but prior to the trialwas admissible to prove ownership in the prosecuting witness. State v. Morris, ( 1918) 90 Or 60, 175 P 668.

501

SUPERSEDED

604. 190

S. Admissibility of certified copiesThe record of a brand may be proved by a copy certified

by the legal keeper even though the brand was not entitledto be recorded because it was similar to a previously recorded one. Brown v. Moss, ( 1909) 53 Or 518, 101 P 207,

18 Ann Cas 541.

A certificate of the adoption of a brand which sets out

a facsimile of the brand was admissible in evidence thoughit contained no further description of the brand. State v.

Garrett, ( 1914) 71 Or 298, 141 P 1123.

A certified copy of the record of a brand in the officeof the county clerk was as competent as a like copy obtained direct from the department of agriculture. State v. Pointer, ( 1923) 106 Or 589, 213 P 621.

In a prosecution for larceny of livestock a certified copyof a recorded brand was admissible without preliminaryproof that the alleged owner of the livestock was the same

person who owned the recorded brand. State v. Christy, 1929) 131 Or 314, 282 P 105.

604. 190

NOTES OF DECISIONS

See also cases under ORS 604. 180. While this statute prohibits the use of an unrecorded

brand to prove ownership, such brand is admissible toidentify an animal. State v. Hanne; ( 1899) 35 Or 195, 57 P629; State v. Morse, ( 1899) 35 Or 462, 57 P 631; State v.

Henderson, ( 1914) 72 Or 201, 143 P. 627. An unrecorded brand is admissible for identification pur-

poses like any color or other physical feature of livestock. State v. Christy, ( 1929) 131 Or 314, 282 P 105; State v. Garner, ( 1940) 166 Or 1, 108 P2d 274; State v. Opie, ( 1946)

179 Or 187, 170 P2d 736.

This section does not prohibit testimony as to the ownership of an animal marked with an unrecorded brand butit does prohibit evidence of "ownership of stock by brands" unless the brand has been recorded. State v. Warner, (1919) 91 Or 11, 178P221.

In a trial for larceny of steers, identification of hides ofsteers by markings and other characteristics in additionto unrecorded brands to prove• ownership, was sufficientto take the case to the jury. State v. Garner, ( 1940) 166Or 1, 108 P2d 274.

In a prosecution for taking an unbranded calf withoutthe consent of the owner, evidence that mother of calf was

branded with complainant' s recorded brand was admissible.

State v. Opie, ( 1946) 179 Or 187, 170 P2d 736. Oral evidence was admissible to show that a brand re-

corded in partnership name was used solely by one partner. Id.

ATTY. GEN. OPINIONS: Recording of brands by ownersof sheep or goats, 194446, p 175.

NOTES OF DECISIONS

In a prosecution for larceny of a cow, where there was

evidence tending to show that the brand upon the cow inquestion had been freshly cut out, there was no error inadmitting evidence of alteration of earmarks. State v. Fitz- gerald, ( 1924) 111 Or 455, 227 P 306.

In prosecution for larceny of livestock the description ofanimals as established by evidence was an immaterialvariance with the description in the indictment in view of

this section, the instructions given, and testimony by prac- tical livestock men that it was hard, if not impossible, toproduce precise earmarks that the brander intended. State

v. Christy, ( 1929) 131 Or 314, 282 P 105.

604.320

ATTY. GEN. OPINIONS: Liability of brand inspector forloss of proceeds realized from the sale of unclaimed live-

stock, 1950 -52, p 191.

604.330

NOTES OF DECISIONS

This section applies only to livestock which are a partof shipments originating in this state. Swift & Co. v. Peter-

son, ( 1951) 192 Or 97, 233 P2d 216; Peterson v. Valley Pack- ing Co., ( 1954) 202 Or 489, 276 P2d 403.

604.410

NOTES OF DECISIONSThe provisions of this section do not place a burden upon

interstate commerce. Swift & Co. v. Peterson, ( 1951) 192

Or 97, 233 P2d 216.

As used in this section the word " origin" or its derivatesrelate to the point or place in this state where a shipment

of livestock begins its movement and do not relate to theplace of birth or origin of the livestock. Id.

This section applies only to livestock which are a partof shipments originating in this state. Id.

592

604.420

NOTES OF DECISIONS

As used in this section the word " origin" or its derivates

relate to the point or place in this state where a shipment

of livestock begins its movement and do not relate to the

place of birth or origin of the livestock. Swift & Co. v.

Peterson, ( 1951) 192 Or 97, 233 P2d 216.

This section applies only to livestock which are a partof shipments originating in this state. Id.

604.540

ATTY. GEN. OPINIONS: Personal liability of brand inspector, 1950 -52, p 191; authority of inspector to use siren orred light on his vehicle, 1966 -68, p 65.

J

SUPERSEDED

Chapter 607

Stock Running at Large; Livestock Districts

Chapter 607

CASE CITATIONS: Kendall v.. Curl, ( 1960) 222 Or 329, 353P2d 227.

ATTY. GEN. OPINIONS: Livestock districts formed under

this and under former law, 1948 -50, p 61; purebred bullsrunning at large, 1956 -58, p 43; control of grazing on gamecommission lands, 1962 -64, p 470; application to unbrandedhorses running at large on uninclosed public lands, ( 1971) Vol 35, p 720.

607.005 to 607.045

ATTY. GEN. OPINIONS: Procedure for creation of livestock

districts, 1948 -50, p 78; election procedure to change boundary, 1960 -62, p 405.

607.005

CASE CITATIONS: Crook v. State Dept. of Agriculture, 1959) 218 Or 211, 344 P2d 243; Kendall v. Curl, ( 1960) 222

Or 329, 353 P2d 227.

ATTY. GEN. OPINIONS: Effect upon election of inclusion

of federal land within livestock district, 1948 -50, p 122; previously organized stock districts as livestock districts, 1950 -52, p 51; requirement that election for livestock districtthat is held at same time as regular election shall be held

at same place, 1950 -52, p 373; formation of district by districtattorney, 1952 -54, p 144; continuation of livestock districtsformed under prior statute, 1954 -56, p 205; election procedure to change boundary, 1960 -62, p 405; application tounbranded horses running at large on uninclosed publiclands, ( 1971) Vol 35, p 720.

607.007

NOTES OF DECISIONS

Under former similar statute an estray was an animalthat had escaped from its owner, and wandered about —

usually defined at common law as a wandering animalwhose owner was unknown. Shepherd v. Hawley, ( 1871) 4 Or 206.

Under former similar statute an animal turned on a range

by its owner was not an estray, although its immediatewhereabouts was unknown to the owner, unless it wan-

dered from the range and became lost. Stewart v. Hunter,

1888) 16 Or 62, 16 P 876, 8 Am St Rep 267.

ATTY. GEN. OPINIONS: Right of private citizen to hold

a trespassing animal with a known owner, 1950 -52, p 51; similar city ordinance as in harmony with this section, 1950 -52, p 305; application to unbranded horses running atlarge on uninclosed public lands, ( 1971) Vol 35, p 720.

607.008

CASE CITATIONS: Kendall v. Curl, ( 1960) 222 Or 329, 353

P2d 227.

607.010

ATTY. GEN. OPINIONS: Effect upon election of inclusion

of federal land within livestock district, 1948 -50, p 122; district attorney's duty to create livestock district, 1952 -54, p 144; creation of district by State Game. Commission, 1962 -64, p 470.

607.012

ATTY. GEN. OPINIONS: Election procedure to change

boundary, 1960 -62, p 405.

607.013


boundary, 1960 -62, p 405.

607.015

ATTY. GEN. OPINIONS: Requirement that election forlivestock district that is held at same time as regular elec-

tion shall be held at same place, 1950 -52, p 373.

607.020

CASE CITATIONS: Crook v. State Dept. of Agriculture,

1959) 218 Or 211, 344 P2d 243.


boundary, 1960 -62, p 405.

i 11,11,

ATTY. GEN. OPINIONS: Purebred bulls as " livestock,"

1956 -58, p 44.

607.042

ATTY. GEN. OPINIONS: Construing " same proposal," 1962 -64, p 141.

607.045

NOTES OF DECISIONS

This section imposes liability only when the owner is atfault. Parker v. Reter, ( 1963) 234 Or 544, 383 P2d 93.

The prohibition in subsection ( 1) applies to livestock

going upon a public highway as well as upon the land ofanother. Id.

AM. GEN. OPINIONS: Penalty for violation of this section, 1948 -50, p 61; criminal liability involved when cattleare permitted to run at large in areas other than livestock

593

SUPERSEDED

607.051

or grazing districts, 1948 -50, p 328; right of private citizento hold a trespassing animal with a known owner, 1950 -52, p 51; areas where livestock cannot run at large, 1950 -52, p 98; application as limited to livestock districts, 1956 -58, p 43.

607.051

CASE CITATIONS: Crook v. State Dept. of Agri., ( 1959)

218 Or 211, 344 P2d 243; Kendall v. Curl, ( 1960) 222 Or 329, 353 P2d 227.

607.261

ATTY. GEN. OPINIONS: Considering usage and custom indefining ' open range" and " recognized beef breed" as usedin this section, 1944 -46, p 222; purebred bulls running atlarge, 1956 -58, p 43; application to unbranded horses running at large on uninclosed public lands, ( 1971) Vol 35, p720.

607.311

ATTY. GEN. OPINIONS: Application to unbranded horses

running at large on uninclosed public lands, ( 1971) Vol 35, p 720.

607.313

ATTY. GEN. OPINIONS: Application to unbranded horses

running at large on uninclosed public lands, ( 1971) Vol 35, p 720.

CTiYAM

CASE CITATIONS: Bowden v. Davis, ( 1955) 205 Or 421,

289 P2d 1100.


1959) 218 Or 211, 344 P2d 243.

607.515


1959). 218 Or 211, 344 P2d 243.

594

607.992

ATTY. GEN. OPINIONS: Criminal liability involved whencattle are permitted to run at large in areas other than

livestock or grazing districts, 1948 -50, p 328.

is

SUPERSEDED

Chapter 608

Fences to Prevent Damage by or to Animals

608.015

NOTES OF DECISIONS1. Under former similar statute

Since sheep were not included within the statute, a landowner was not, in counties to which the law applied, re-

quired to fence against them in order to recover damagesfor trespass. The common -law rule in that regard obtained.

French v. Cresswell, ( 1886) 13 Or 418, 11 P 62; Bileu v.

Paisley, ( 1889) 18 Or 47, 21 P 934, 4 LRA 840; Stricklandv. Geide, ( 1897) 31 Or 373, 49 P 982; Pacific Livestock Co.

v. Murray, ( 1904) 45 Or 103, 76 P 1079; Jones Land & Livestock Co. v. Seawell, ( 1918) 90 Or 236, 176 P 186.

Under the 1870 laws, the common -law rule that everyman was required to keep his cattle within his own close, under the penalty of answering in damages for all injuriesarising from their running at large, did not prevail in Ore- gon. Campbell v. Bridwell, ( 1874) 5 Or 311.

In an action for trespass by cattle under the 1870 laws, the complaint had to set forth facts showing an inclosurebuilt in substantial compliance with the statute. Id.

In the absence of a statute changing the common -lawrule, a party was not obliged to fence his lands before hecould maintain an action of damages for trespass by cattle. French v. Cresswell, ( 1886) 13 Or 418, 11 P 62.

A plaintiff, whose lands were fenced in a common inclo-

sure with defendants' lands, could not recover for trespass

of defendants' cattle, not having separated his lands fromtheirs by a fence, in the absence of malicious preventionby defendants. Oliver v. Hutchinson, ( 1902) 41 Or 443, 447, 69 P 139, 1024.

The measure of damages for trespass by sheep was thereasonable value of the verdure eaten or destroyed, and

the injury to the freehold. Pacific Livestock Co. v. Murray, 1904) 45 Or 103, 76 P 1079.

Whether a pond three and one -half feet deep was a lawfulfence was for the jury to determine. Meier v. Northern Pac. Ry., ( 1908) 51 Or 69, 93 P 691.

In an action for trespass by animals, a landowner hadto bring himself within the conditions imposed by statute, else he could not prevail, even though the county had votedagainst stock running at large. Ball v. Croisan, ( 1914) 68Or 455, 137 P 225.

Steep banks of a river in a proper case, would be treatedas a lawful fence. Seavey v. Williams, ( 1920) 97 Or 310, 191P 779.

Evidence that accused shot and killed the cow of another

because she was breaking into his hay corral did not justifyconviction of a criminal offense, but was merely proof ofcivil liability under the statute. State v. Klein, ( 1920) 98 Or116, 193 P 208.

The distrainer had the right to defend his possession tothe same extent that the sheriff had to defend the posses-

sion of property taken by him on legal process if the statutewas strictly complied with. Brown v. Becker, ( 1931) 135 Or353, 295 P 1113.

The owner of distrained trespassing animals could notmaintain replevin until he had complied with the conditions

imposed on him by the statute. Id.

Sheep were subject to distraint for damages done torealty and where disclaimed, a Gen for their keep or chargesincident to the distress attached. Hall v. Marshall, ( 1933) 145 Or 221, 27 P2d 193.

FURTHER CITATIONS: Siglin v. Coos Bay Co. ( 1899) 35Or 79, 56 P 1011, 76 Am St Rep 463; Fry v. Hubner, ( 1899) 35 Or 184, 57 P 420; Smith v. Chipman, ( 1960) 220 Or 188, 197, 348 P2d 441.

608.310

NOTES OF DECISIONS

There is not duty to fence a railroad right of way, inthe absence of statute. Todd v. Pac. Ry. & Nay. Co., ( 1911)

59 Or 249, 110 P 391, 117 P 300; Swensen v. So. Pac. Co., 1918) 89 Or 275, 174 P 158.

A railroad company is not liable for injuries suffered byanimals in its station grounds within an incorporated town.

Harvey v. So. Pac. Co., ( 1905) 46 Or 505, 80 P 1061.

An agreement on the part of the company to constructa cattle crossing under or over its tracks does not absolveit from the obligation of fencing the right of way. Dibbleev. Astoria & Columbia River R.R., ( 1910) 57 Or 428, 111

P 242, 112 P 416.

This statute relates to operating railroads only, and isnot applicable to roads under construction. Todd v. Pac.

Ry & Nay. Co., ( 1911) 59 Or 249, 110 P 391, 1. 17 P 300. The title of this statute indicates that it was enacted for

the benefit of the traveling public. Swensen v. So. Pac. Co., 1918) 89 Or 275, 174 P 158.

An order suspending operation of this section in respectof a particular line of road does not relieve the companyfrom liability arising out of the killing of domestic animalscoming upon its tracks. Id.

FURTHER CITATIONS: Butcher v. Flagg, ( 1949) 185 Or471, 203 P2d 305.

608.320

NOTES OF DECISIONSSee cases under ORS 608.310.

608.330

NOTES OF DECISIONS

See cases under ORS 608.310.


2. Liability of railroad3. Point of entry of stock4. Station grounds

5. Evidence

595

SUPERSEDED

608.350

1. in general

Contributory negligence defeats recovery under thisstatute. Hindman v. Ore. Ry. & Nov. Co., ( 1889) 17 Or 614,

619, 22 P 116; Eaton v. Ore. Ry. & Nov. Co., ( 1890) 19 Or

371, 24P413.

Where the want of a fence sustains no relation to or

connection with the injury caused by a moving train, thisstatute has no application. Meeker v. No. Pac. R. Co., ( 1892)

21 Or 513, 28 P 639, 28 Am St Rep 758, 14 LRA 841. Prior to enactment of this statute, a railroad company

was liable for an injury to stock only if it was negligent; and failure to fence its right of way was not negligence. Todd v. Pac. Ry. & Nov. Co., ( 1911) 59 Or 249, 110 P 391,

117 P 300.

This section was not repealed by enactment of LOL 6979to 6982 [ ORS 608.310 to 608.3301. Swensen v. So. Pac. Co.,

1918) 89 Or 275, 174 P 158.

The title of this statute indicates that it was enacted for

the benefit of individual stock owners. Id.

Suspension of LOL 6979 [ ORS 608.3101 as therein authorized, does not relieve a railroad company from liabilityarising out of the killing of domestic animals coming uponits tracks. Id.

2. Liability of railroadUnder this statute a plaintiff is entitled to recover against

a railroad company for the killing or injury of his stock, by alleging and proving that the company owned oroperated the railroad; that its track was unfenced; and that

the plaintiffs cattle or horses were killed or injured, as the

case might be, on or near the track by a moving train, engirie, or cars upon such track. Hindman v. Ore. Ry. & Nov. Co., ( 1889) 17 Or, 614, 619, 22 P 116; Sullivan v. Ore.

Ry. & Nov. Co., ( 1890) 19' Or 319, 328, 24 P 408.

The purpose of this statute is to make the railroad company owning the road, or the company operating the road, liable, so that either may be sued as the plaintiff may elect, who has sustained injury to his livestock by a moving trainupon its unfenced track. Eaton v. Ore. Ry. & Nov. Co.,

1890) 19 Or 391, 24 P 413.

The animal need not be actually touched by the engineor cars of the train in order to render the railroad companyliable. Meeker v. No. Pac. R. Co., •(1892) 21 Or 513, 28 P

639, 28 Am St Rep 758, 14 LRA 841. Whether the train is operated carefully is immaterial

when there is an omission to fence by reason of which stockget on the track and injury to them results. Id.

No agreement between a railroad company and an adjoining owner whereby he agrees to maintain fences willabsolve the company from liability to persons not partiesor in privity for injury resulting from the landowner's failureto keep his engagement. Brown v. So. Pac. Co., ( 1899) 36

Or 128, 58 P 1104, 78 Am St Rep 761, 47 LRA 409. That a right of way deed provides for an open crossing

does not release a railroad company of its statutory dutyto fence. Dibblee v. Astoria & Columbia River R.R., ( 1910)

57 Or 428, 111 P 242, 112 P 416.

Where plaintiffs horse strayed on defendant' s unfenced

railroad track, it was immaterial to defendant' s liabilitywhether the horse was struck by a train and thrown onto a fence and injured, or whether he was so frightenedthat he jumped on the fence in an effort to escape fromthe train. Meier v. No. Pac. R. Co., ( 1908) 51 Or 69, 93 P

691.

3. Point of entry of stockIf stock enter upon a railway at a point where this statute

requires the road to be fenced, and are injured by a movingtrain, the company will be liable in damages regardless ofwhether it was negligent or not. Eaton v. McNeill, ( 1897)

31 Or 128, 49 P 875.

If stock enter on the right of way at a place where the

company is not bound to fence, and are injured, negligencemust be shown to justify a recovery. Id.

4. Station groundsFor animals killed on depot grounds or on public road

or street crossings, there is no liability under this statute. Moses v. So. Pac. R. Co., ( 1890) 18 Or 385, 23 P 498, 8 LRA

135; Harvey v. So. Pac. Co., ( 1905) 46 Or 505, 80 P 1061;

Wilmot v. Ore. R. Co., ( 1906) 48 Or 494, 87 P 528, 120 Am

St Rep 840, 11 Ann Cos 18, 7 LRA(NS) 202; Swensen v. So. Pac. Co., ( 1918) 89 Or 275, 174 P 158.

It is the duty of the judge to take the case from the juryas a question of law, where it appears clearly that animalsentered upon station grounds and were killed by movingcars; but where the evidence is conflicting as to whetherthe point of entry is within the station grounds, the questionshould be submitted to the jury. Wilmot v. Ore. R. Co.,

1906) 48 Or 494, 87 P 528, 120 Am St Rep 840, 11 Ann Cos18, 7 LRA( NS) 202; High v. So. Pac. Co., ( 1907) 49 Or 98,

88 P 961.

The depot or station grounds of a railroad company isthe place where passengers get on or off the train and where

freight is loaded and unloaded, including all grounds reasonably necessary or convenient to that purpose, together

with the necessary tracks, switches and turnouts thereon, or adjacent thereto, necessary for handling and making uptrains, storage of cars, etc., and so much of the maintrack

outside the switches as is necessary for the proper handlingof trains at the station. Wilmot v. Ore. R. Co., ( 1906) 48

Or 494, 87 P 528, 120 Am St Rep 840, 11 Ann Cos 18, 7LRA(NS) 202.

A switch or siding near a station where no passengersget on or off, and no freight is loaded or unloaded, andwhere the public has no right of access, is not depot grounds

so as to excuse the railroad from fencing. Jackson v. Sumpter Valley R. Co., ( 1908) 50 Or 455, 93 P 356.

The question whether plaintiff was guilty of contributorynegligence in turning the stock out to graze on unihclosedlands near the depot, was for the jury. Wilmot v. Ore. R. Co., ( 1906) 48 Or 494, 87 P 528, 120 Am St Rep 840, 11 AnnCos 18, 7 LRA(NS) 202; Jackson v. Sumpter Valley R. Co., 1908) 50 Or 455, 93 P 356.

S. Evidence

Proof of the place of entry of the stock only devolveson the plaintiff when stock is killed or injured at a place

where the railroad company is not bound to fence, as apublic highway, and which stock has entered where itstrack was unfenced and the duty to fence existed, and suchkilling or injury is the direct consequence of an omissionto fence. Sullivan v. Ore. Ry. & Nov. Co., ( 1890) 19 Or 319,

24 P 408; Eaton v. Ore. Ry. & Nov. Co., ( 1890) 19 Or 371,

24 P 413.

Proof that a gate was negligently left open does notsupport an allegation that a railroad track was not fencedthere. High v. So. Pac. Co., ( 1907) 49 Or 98, 88 P 961.

Circumstantial evidence was sufficient to support a find-

ing that plaintiffs horse was on the right of way of defendant railroad company, and was either struck and thrownon a fence by a moving train or was so frightened in hiseffort to get away that he jumped upon the fence and waskilled. Meier v. No. Pac. R. Co., ( 1908) 51 Or 69, 93 P 691.

608.350

NOTES OF DECISIONS


The court cannot say, as a matter of law, that a pondabout three and a half .feet deep is a complete naturaldefense against the entrance of stock. Meier v. No. Pac. R. Co., ( 1908) 51 Or 69, 93 P 691.

596

is

SUPERSEDED

fl JJ

u

iT:. T, i

NOTES OF DECISIONS


1. In general

Whether or not the death or injury is caused by actualcontact with the train, the railroad company is liable fordeath or injury of stock caused by a moving train uponor near its unfenced track. Meeker v. No. Pac. R. Co., ( 1892)

21 Or 513, 28 P 639, 28 Am St Rep 758, 14 LRA 841.

2. Contributory negligenceContributory negligence defeats recovery under the stat-

ute. Hindman v. Ore. Ry. & Nay. Co., ( 1889) 17 Or 614, 619,

22 P 116; Eaton v. Ore. Ry. & Nay. Co., ( 1890) 19 Or 371,

373, 24 P 413.

Permitting animals to run at large upon common unfenced range, or upon inclosed land owned or in possession

of the owner of the animals is not contributory negligencedefeating recovery. Hindman v. Ore. Ry. & Nay. Co., ( 1889)

w

597

608.370

17 Or 614, 619, 22 P 116; Keeney v. Ore. Ry. & Nay. Co.,

1890) 19 Or 291, 24 P 233.

3. Evidence

Negligence is established by proof that the companyfailed to fence and that the animals were killed or injured

upon or near such unfenced track. Eaton v. Ore. Ry. & Nay.

Co., ( 1890) 19 Or 371, 24 P 413.

Animals killed near a point that the company was required to fence, but neglected to do, may be presumed tohave entered at that point. Id.

The plaintiff is not required to prove where his animals

entered the right of way unless the injury took place atpoint that was not required to be fenced. Meier v. No. Pac. R. Co., ( 1908) 51 Or 69, 93 P 691.

608.370

NOTES OF DECISIONS

This section was not repealed by enactment of LOL 6979to 6982 [ ORS 608.310 to 608.330]. Swensen v. So. Pac. Co.,

1918) 89 Or 275, 174 P 158.

SUPERSEDED

Chapter 609

Dogs

Chapter 609

ATTY. GEN. OPINIONS: Power of county dog controlboard to deny payment of claim for livestock killed by adog when claimant has action against the dog owner, 1948 -50, p 38; constitutionality of use of dog license feesto reimburse livestock owners for damage by dogs, 1952 -54, p 90; dog licensing as matter of state -wide concern, 1960 -62, p 384; dog " running at large" without knowledge of owner, 1966 -68, p 126.


609.010 to 609. 190

ATTY. GEN. OPINIONS: Primary purpose as control ofdogs which run at large, ( 1970) Vol 35, p 292.

609.010

CASE CITATIONS: O' Harra v. Pundt, ( 1957) 210 Or 533, 310 P2d 1110.

ATTY. GEN. OPINIONS: Construing " running at large," 1966 -68, p 126.

609.020

NOTES OF DECISIONS

This section is merely a legislative declaration of presentday common law. McCallister v. Sappingfield, ( 1914) 72 Or422, 425, 144 P 432.

Since dogs are property, an ordinance providing for theimpounding and destruction of dogs without notice to unknown owners was unconstitutional as a violation of due

process. Rose v. Salem, ( 1915) 77 Or 77, 150 P 276.

Although dogs were recognized as property under 1919c. 186 § 7, [ ORS 609.0901, authorizing the summary destruction of unmuzzled dogs without notice to the owner did

not deprive the owner of his property without due processof law. Hofer v. Carson, ( 1921) 102 Or 545, 203 P 323.

ATTY. GEN. OPINIONS: Racing dogs kept in kennels astaxable property, ( 1970) Vol 35, p 292.

609.030

NOTES OF DECISIONS

The enforcement officer hired under this section is a

public officer and a contract for a definite period with such

officer is not binding upon the board. Moms v. Parks, ( 1934) 145 Or 481, 28 P2d 215.

ATTY. GEN. OPINIONS: Statutes relating to dog controldistricts, 1930 -32, p 180; duty of county clerk as to doglicenses, 1938 -40, p 284; expenses incurred in hiring a personto take care of board member's farm while he attended to

official duties as reimbursible, 1940 -42, p 7; power of legislator to be a member of a county dog control board, 1950 -52,

p 201; county dog fund as restricted to uses authorized bystatute, 1954 -56, p 127.

ATTY. GEN. OPINIONS: Calling election; necessity ofvoters' pamphlet, effect on city ordinance, 1960 -62, p 384; authority to submit this question at special election for taxreferendum, 1962 -64, p 259; authority of home rule countyto regulate dogs, 1966 -68, p 260.

609.050

ATTY. GEN. OPINIONS: Election procedure for countyleash law, 1960 -62, p 384; authority of home rule countyto regulate dogs, 1966 -68, p 260.

609.060

ATTY. GEN. OPMONS: Counties' liability for damage bydogs within incorporated cities of less than 100,000, 1940 -42,

p 438; county dog fund as restricted to uses authorized bystatute, 1954 -56, p 127; election procedure for county leashlaw, 1960 -62, p 384; effect of five -day notice requirementon enforcement of this section, 1966 -68, p 126; authorityof home rule county to regulate dogs, 1966 -68, p 260.

609.090

CASE CITATIONS: O' Harra v. Pundt, ( 1957) 210 Or 533, 310 P2d 1110.

ATTY. GEN. OPINIONS: County dog fund as restricted touses authorized by statute, 1954 -56, p 127.

609. 100

NOTES OF DECISIONS

A former licensing statute which exempted from itsoperation certain counties was unconstitutional under Ore.

Const. Art. IV, §23, prohibiting the legislature from passingspecial or local laws for punishment of crimes and misde-

meanors. Lewis v. Varney, ( 1917) 85 Or 400, 167 P 271. This statute was a valid exercise of the state' s police

power and was not unconstitutional under the privileges

and immunities clause of Ore. Const. Art. I, §20, under Ore.

Const. Art. IV, former § la, reserving the initiative andreferendum to municipalities, under Ore. Const. Art. IX, §l,

providing for uniformity of taxes, under Ore. Const. Art. XI, §2, granting municipalities police power, or under thedue process clause of U.S. Const., Am. 14. Hofer v. Carson, 1922) 102 Or 545, 203 P 323.

ATTY. GEN. OPINIONS: Requirement of license as to dogs

reaching age of eight months, 1938 -40, p 284; racing dogskept in kennels as taxable property, dog racing as exhibi- tion, ( 1970) Vol 35, p 292.

598

r

SUPERSEDED

609. 110

ATTY. GEN. OPINIONS: Time when surplus of dog licensefund becomes part of the general fund of the county asaffected by fiscal year, 1940 -42, p 595; payment of generaladministrative costs of issuing licenses, 1954 -56, p 127; purpose of license fees, ( 1970) Vol 35, p 292.

609. 120

ATTY. GEN. OPINIONS: Counties' liability for damage bydogs within incorporated cities of less than 100,000, 1940 -42,

p 438; duty of a county court or dog control district boardto enter into an agreement with a city for municipal enforcement of the dog licensing Act as mandatory, 1942 -44, p 174; constitutionality of use of dog license fees to reimburse livestock owners for damage by dogs, 1952 -54, p 90.

609. 140

ATTY. GEN. OPINIONS: Power of county dog controlboard to deny payment of claim for livestock killed by adog when claimant has action against the dog owner, 1948 -50, p 38.

609.150

NOTES OF DECISIONS

The title of the 1945 amendment is not unconstitutional

under Ore. Const. Art. IV, §20, as enlarging the scope ofthe 1941 Act's title. Green v. Leckington, ( 1951) 192 Or 601, 236 P2d 335.

FURTHER CITATIONS: Eaton v. Lake, ( 1921) 100 Or 622, 197 P 292.

609.990

609. 160

CASE CITATIONS: Green v. Leckington, ( 1951) 192 Or 601,

236 P2d 335.

609. 170

ATTY. GEN. OPINIONS: Power of county dog controlboard to deny payment of claim for livestock killed by adog when claimant has action against the dog owner, 1948 -50, p 38; constitutionality of use of dog license feesto reimburse livestock owners for damage by dogs, 1952 -54, p 90; purpose of license fees, ( 1970) Vol 35, p 292.

609. 180

ATTY. GEN. OPINIONS: Allowing claims for damage tolivestock caused by the claimant's dog and another dog, 1944 -46, p 252; power of county dog control board to denypayment of claim for livestock killed by a dog when claimant has action against the dog owner, 1948 -50, p 38; constitutionality of use of dog license fees to reimburse livestock owners for damage by dogs, 1952 -54, p 90; countydog fund as restricted to uses authorized by statute, 1954 -56, p 127; purpose of license fees, ( 1970) Vol 35, p 292.

609. 190

ATTY. GEN. OPINIONS: Procedure to be followed despite

possibility of numerous actions by county against dogowners, 1948 -50, p 38.

609.990

ATTY. GEN. OPINIONS: Effect of five -day notice requirement on enforcement of ORS 609.060, 1966 -68, p 126.

6PA

SUPERSEDED

Chapter 610

Predatory Animals

610.020

ATTY. GEN. OPINIONS: Disposition of money derived fromsale of skins of predatory animals, 1936 -38, p 467; eligibilityof trappers of predatory animals employed by game commission to be covered under workmen' s compensation,

1940 -42, p 643; using funds appropriated from the StateGame Fund for the control and destruction of predatoryanimals. in cooperation with the Federal Government, totrain veterans of World War II some of whom will be

permanently employed as predatory animal hunters, 1944- 46, p 386.

610.040

ATTY. GEN. OPINIONS: Disposition of money derived fromsale of skins of predatory animals, 1936 -38, p 467; dispositionof funds received under this section, 1958 -60, p 132.

610.045

ATTY. GEN. OPINIONS: Roadside eating places, touristcamps and filling stations as public zoos, 1934 -36, p 606.

610. 105

ATTY. GEN. OPINIONS: Landowner's duty to exterminate, 1956 -58, p 213.

610. 110

ATTY. GEN. OPINIONS: Establishing county fund for ex- termination, 1956 -58, p 213.

610. 125

ATTY. GEN. OPINIONS: County agent' s liability for negli-

gence in preparing and selling poisoned grain, 1956 -58, p213.

610. 130

ATTY. GEN. OPINIONS: County agent' s liability for negligence in preparing and selling poisoned grain, 1956 -58, p213.

610. 145

ATTY. GEN. OPINIONS: County agent' s liability for negligence in preparing and selling 'poisoned grain, 1956 -58, p213.

610.205

ATTY. GEN. OPINIONS: Authority of county court to enterinto an, agreement to employ a local trapper and to payhim at a certain rate per animal for all the coyotes he kills,

1944 -46, p 6; county court's power to pay bounties in excessof the amount prescribed by statute, 1948 -50, p 144.

610.210

ATTY. GEN. OPINIONS: County court's power to paybounties in excess of the amount prescribed by statute, 1948 -50, p 144.

610.405

ATTY. GEN. OPINIONS: Applicability of tax to land acquired by State Land Board through foreclosure of mortgage and subsequently sold on a contract which w" can-

celed, 1940 -42, p 519.

600

C

SUPERSEDED

JChapter 616

General and Miscellaneous Provisions

Chapter 816

ATTY. GEN. OPINIONS: Enforcement by State Departmentof Agriculture, 1958 -60, p 267; as general rather than specialprovisions, 1958 -60, p 336.

616.025

NOTES OF DECISIONS

The pure food law of 1915 was declared to be remedial

in nature and to be liberally construed. Hoefler v. Mickle, 1915) 78 Or 399, 153 P 417.

ATTY. GEN. OPINIONS: Authority to establish grades fordairy products, 1948 -50, p 98.

616.065

CASE CITATIONS: American Produce Co. v. Marion

Creamery and Poultry Co.; ( 1958) 214 Or 103, 327 P2d 1104.

618.205 to 616.320

ATTY. GEN. OPINIONS: Food declared adulterated byregulation of United States Food and Drug Administration, 1958 -60, p, 267; applicability to incubated eggs, 1958 -60, p336.

616.205

ATTY. GEN. OPINIONS: Applicability to canned foods, 1948 -50, p 216.

610.210

ATTY. GEN. OPINIONS: Applicability to canned foods, 1948 -50, p 216.

616.215

CASE CITATIONS: Swank v. Battaglia, ( 1917) 84 Or 159,

164 P 705, LRA 1915F, 469.

616.217

NOTES OF DECISIONSThis section was constitutional under the commence and

equal protection provisions of U.S. Cont., Art. 1, § 8 and

Am. 14. Atlantic Ocean Prods., Inc. v. Leth, ( 1968) 292 F

Supp 615.

ATTY. GEN. OPINIONS: Rule- making authority over labeling, ( 1970) Vol 34, p 956.

816.230

ATTY. GEN. OPINIONS: Effect of 1949 amendment to ORS

616.410 on this section, 1948 -50, p,216; rule requiring labelingas to butterfat, ( 1970) Vol 34, p 956.

616.235

ATTY. GEN. OPINIONS: Food declared adulterated byregulation of United States Food and Drug Administration, 1958 -60, p 267.

616.245

ATTY. GEN. OPINIONS: Requirements that a product belabeled so as to disclose the fact that horse meat is used

in the manufacture of sausage, 1928 -30, p 390; requiring amixture compounded of milk or cream, vegetable oil and

Sta- Whip" powder to be labeled " imitation milk," 1944 -46, p 494.

616.250


616.350


6l &410

ATTY. GEN. OPINIONS: Authority to establish grades fordairy products, 1948 -50, p 98.

616.510


61 & 515

CASE CITATIONS: Pacific States Box & Basket Co. v.

White, ( 1935) 296 US 176, 56 S Ct 159, 80 L Ed 138, 101ALR 853.

616.545

ATTY. GEN. OPINIONS: Rule - making authority over labeling, ( 1970) Vol 34, p 956.

61 & 726

ATTY. GEN. OPINIONS: Home rule county assuming citypowers, 1966 -68, p 596.

601

SUPERSEDED

Chapter 618

Weights and Measures

618.160

ATTY. GEN. OPINIONS: Definition of term " commodities,"

1922 -24, p 141; selling salmon eggs in package form withoutproper label, 1932 -34, p 695; keeping for sale or offering forsale hams in package form weighing less than net weightstamped on package as violation of law, 1936 -38, p 38; rule- making authority over labeling, ( 1970) Vol 34, p 956.

619. 190

ATTY. GEN. OPINIONS: Procedure for confiscation of

scale, 1920 -22, p 209.

618.480 '

ATTY. GEN. OPINIONS: Necessity that wood be sold bycord, 1922 -24, p 664.

618.490

NOTES OF DECISIONS

A court in its instructions may define a cord of woodin accordance with the statutory definition. Booth -KellyLbr. Co. v. Williams, ( 1920) 95 Or 476, 188 P 213.

618.530

NOTES OF DECISIONS

Subsection ( 1) is constitutional as being enacted undersufficient title, not arbitrary or unreasonable, and a validexercise of police power. McLaughlin v. Helgerson, ( 1925)

116 Or 310, 241 P 50.

ATTY. GEN. OPINIONS: As proper exercise of police

power, 1954 -56, p 14.

602

SUPERSEDED

Chapter 619

Purity, Grades, Standards, Labels andInspection of Meat and Meat Food Products

Chapter 619

ATTY. GEN. OPINIONS: Intent to insure clean and sanitaryconditions in every establishment used for, slaughtering ormeat preparation, 1948 -50, p 68.

619.010

ATTY. GEN. OPINIONS: Slaughterhouse as " establish-

ment," 1948 -50, p 68.

619.020

ATTY. GEN. OPINIONS: Slaughterhouse as " establish-

ment," 1948 -50, p 68.

619.090

ATTY. GEN. OPINIONS: Ownership of meat as irrelevantunder this section, 1948 -50, p 68.

619. 140

ATTY. GEN. OPINIONS: Closing of slaughterhouses beingoperated in violation of existing law, 1948 -50, p 68.

619.200

ATTY. GEN. OPINIONS: Authority to condemn unfit meat, 1948-50, p 68.

619.240

ATTY. GEN. OPINIONS: Authority to base assessment onother factor, (1968) Vol 34, p 99.

619.325


619.327


619.350

ATTY. GEN. OPINIONS: Regulation of fryers in interstate

commerce, 1958 -60, p 123.

619.355

ATTY. GEN. OPINIONS: Constitutionality of law requiringlabeling of fryers, 1958 -60, p 123; rule- making authority overlabeling, ( 1970) Vol 34, p 956.

619.360


commerce, 1958 -60, p 123.

619.375


commerce, 1958 -60, p 123.

619.470

ATTY. GEN. OPINIONS: Home rule county assuming citypowers. 1966 -68, p 596.

619.605 to 619.830

ATTY. GEN. OPINIONS: Authority to base assessment onother factor, ( 1968) Vol 34, p 99.

619.670

ATTY. GEN. OPINIONS: As referring to Oregon operators, 1968) Vol 34, p 99.

619.910

NOTES OF DECISIONS

This section is unconstitutional as an unreasonable dis-

crimination in violation of the Commerce Clause of the

United States Constitution. Ness Produce Co. v. Short,

1966) 263 F Supp 586.

603

SUPERSEDED

Chapter 620

Sale of Horse Meat

620.030 620.070

ATTY. GEN. OPINIONS: Rule - making authority over la- ATTY. GEN. OPINIONS: Licensing person slaughteringbeling, ( 1970) Vol 34, p 956. equine animals for purposes other than human consump-

tion, 1942 -44, p 413.

604

SUPERSEDED

Chapter 621

Purity, Grades, Standards and Labelsof Dairy Products and Substitutes

621.015

ATTY. GEN. OPINIONS: As not conflicting with subsection4) of ORS 561. 150, 1958 -60, p 132.

621. 055

ATTY. GEN. OPINIONS: Dairyman who produces and sells

fluid milk to distributor as a " shipper," 1948. 50, p 98; validity of license obtained under prior statute, 1952 -54, p 138; construing fluid milk, 195456, p 141; regulation of off - premises processing or bottling by producer - distributor, 1964 -66, p 219.

621.060

ATTY. GEN. OPINIONS: Authority to require shipper touse a licensed grade designation, 1948 -50, p 98; authorityto promulgate regulations with varying bacterial standards, 1954 -56, p 141; rule requiring labeling as to butterfat, ( 1970) Vol 34, p 956.

621. 065

ATTY. GEN. OPINIONS: Authority to require shipper touse a licensed grade designation, 1948 -50, p 98.

621.070

ATTY. GEN. OPINIONS: Authority to require shipper touse a licensed grade designation, 1948 -50, p 98.

621.077

ATTY. GEN. OPINIONS: Conformance to same bacterial

standards, 195456, p 141.

621.090

AETY. GEN. OPINIONS: Home rule county assuming citypowers, 1966 -68, p 596.

621. 161

ATTY. GEN, OPINIONS: Validity of license obtained underprior statute, 1952 -54, p 138.

621. 291

ATTY. GEN. OPINIONS: Home -rule county assuming citypowers, 1966 -68, p 596.

621.315

ATTY. GEN. OPINIONS: Constitutionality of restrictionson sale of mellorine, 1952 -54, p 98.

621.320


621. 325


621. 352


621. 357


621. 360


621.425

AM. GEN. OPINIONS: Rule- making authority over labeling, ( 1970) Vol 34, p 956.

621.435

NOTES OF DECISIONS

This provision is constitutional as a valid exercise of the

police power. Corvallis Creamery Co. v. Van Winkle, (1921) 274 Fed 454.

ATTY. GEN. OPINIONS: Advertisement of oleomargarine

cartons on which is imprinted corporate name including theword " butter," as a violation of statute, 1926 -28, p 183; distribution of " Parkay" within the state, 1936 -38, p 465.

621.445

ATTY. GEN. OPINIONS: As constitutional exercise of po-

lice power, 1950 -52, p 131.

621.990

ATTY. GEN. OPINIONS: Liability of milk plant owner, whoreceives milk transported by another, for violation of regulation regarding transportation of milk 1948 -50, p 296.

605

SUPERSEDED

Chapter 624

Food Service Facilities

Chapter 624

CASE CITATIONS: Nisson v. Tillman, ( 1958) 213 Or 133, 323 P2d 329.

624.010 to 624. 120

ATTY. GEN. OPINIONS: Authority of county to requirerestaurant employes to have a food service permit, 1966 -68,

p 152.

624.010

ATTY. GEN. OPINIONS: County health officer's duty toadminister the provisions of this chapter, 194446, p 246.

624.020

ATTY. GEN. OPINIONS: Licensing restaurants selling beeror beer taverns selling meals under this chapter, 1944 -46, p 214.

624.090

ATTY. GEN. OPINIONS: Applicability of this chapter toincorporated cities, 194446, p 325.

624. 100

ATTY. GEN. OPINIONS: Subdelegation of rule- makingfunction, 1966 -68, p 152.

606

SUPERSEDED

Chapter 625

Licensing and Regulation of Bakeries

625. 160

ATTY. GEN. OPINIONS: Provisions for collecting registration fees as an exception to general vehicle registration law,

employes included in computing license fees, 1942 -44, p 415.

625.200

CASE CITATIONS: State v. Hudson House, Inc., (1962) 231

Or 164, 371 P2d 675.


625.209

NOTES OF DECISIONSRegulations promulgated under this section are constitu-

tional. State v. Hudson House, Inc., ( 1962) 231 Or 164, 371

P2d 675.

625.220


607

SUPERSEDED

Chapter 628

Refrigerated Locker Plants

628.240

ATTY. GEN. OPINIONS: As not in conflict -with subsection

4) of ORS 561.150, 1958 -60, p 132.

608

1 u

SUPERSEDED

C JChapter 632

Grades, Standards and Labels. for Eggs,. Onions,

Potatoes, Prunes, Walnuts and Filberts

632.226


Y kI li A

ATTY. GEN. OPINIONS: Agriculture department' s authori-

ty to promulgate rules and regulations governing standardsfor Oregon grown potatoes, 1940 -42, p 608.

632.321

ATTY. GEN. OPINIONS: Proper labeling of potato containers by dealer and grower, 1930 -32, p 528; labeling of potatocontainers, 1932 -34, p 421; rule- making authority over labeling, ( 1970) Vol 34, p 956.

632.590


632.600

ATTY. GEN. OPINIONS: Inspection of nuts transported to

processing plant outside state, 1938 -40, p 505.

632705

ATTY. GEN. OPINIONS: Labeling egg meats from incubated eggs, 1960 -62, p 322.

632.730

ATTY. GEN. OPINIONS: Egg - breaking establishmentsusing incubated eggs, 1958 -60, p 336.

632.750

ATTY. GEN. OPINIONS: Labeling egg meats from incubated eggs, 1960 -62, p 322; rule- making authority over labeling, 1970) Vol-34, p 956.

632.755

ATTY. GEN. OPINIONS: Breaking chicken eggs and turkeyeggs in same room, 1956 -58, p 244; egg - breaking establishments using incubated eggs, 1958 -60, p 336; labeling eggmeats from incubated eggs, 1960 -62, p 322.

632.770

ATTY. GEN. OPINIONS: Necessity of indicating on thecontainer the source of the contents, 1950 -52, p 196; rule - making authority over labeling, ( 1970) Vol 34, p 956.

42805

A=. GEN. OPINIONS: Authority to classify as " inferior" or " adulterated," 1958 -60, p 336.

632.810

ATTY. GEN. OPINIONS: Whether federal standards for

grading size and quality of eggs supersede the state statutory standards, 194244, p 213.

609

SUPERSEDED

Chapter 633

Grades, Standards and Labels for Feeds, Fertilizers and Seeds

633.029

AM. GEN. OPINIONS: Authority of others than the VitahProducts Company to manufacture Vitamelk Chick Starteror Vitamelk Chick Grower, 1936 -38, p 330.

633.361

ATTY.. GEN. OPINIONS: A business concern selling soil

testing services as subject to statute, 1946 -48, p 416.

633.370

ATIY. GEN. OPINIONS: License fee as determined byestimated cost of regulation and inspection, 1950 -52, p 94.

633.651

ATIY. GEN. OPINIONS: Use on uncertified seed of a tagsimilar to official tag as violation, 1942 -44, p 96.

610

r

SUPERSEDED

Chapter 635

Nonalcoholic Beverages

05.030 635.045

ATTY. GEN. OPINIONS: Computation of annual license fee ATTY. GEN. OPINIONS: Rule - making authority over la- for manufacture or preparation, for sale or distribution, of beling, ( 1970) Vol 34, p 956. carbonated beverages, 194244, p 112.

611

SUPERSEDED

l u

612

SUPERSEDED

r U

Chapter 646

Unfair and Unlawful Trade Practices

Chapter 646

ATTY. GEN. OPINIONS: Revocation of pharmacy, licensefor " dishonest" advertisement, 1962 -64, p 448; sharing commissions with other insurance agents, 1964 -66, p 70.


646.010 to 646. 180

ATTY. GEN. OPINIONS: Fact situations within sections,

1970) Vol 35, p 393.

646.010

LAW REVIEW CITATIONS: 19 OLR 38; 25 OLR 247

646.020

ATTY. GEN. OPINIONS: The business or profession of

photography as within the definitions of this section, 1938- 40, p 509; barbers as within the definitions of this section, 1940 -42, p 60; licenses' and fees to harvest or sell nonfoodfish, 1962 -64, p 388; sharing commission with other insurance agents, 1964 -66, p 70.

646.040

ATTY. GEN. OPINIONS: District attorney enforcing anti - price discrimination statutes, 1956 -58, p 141.

646.060

CASE CITATIONS: Liggett v. Lester, ( 1964) 237 Or 52, 390P2d 351.

ATTY. GEN. OPINIONS: Sharing commission with otherinsurance agents, 196466, p 70.

646. 100

ATTY. GEN. OPINIONS: Proof of effect upon competition

as gravamen of the defense, 1956 -58, p 141; legality ofpunchboard, 1960 -62, p 342; accusing manager or owner, 1962 -64, p 459; protection of small seller with limited capitalresources, ( 1970) Vol 35, p 393.

646. 105

ATTY. GEN. OPINIONS: Sale at two prices with each below

cost, ( 1970) Vol 35, p 393.

646. 110

ATTY. GEN. OPINIONS: Construing exceptions in ORS646.120, ( 1970) Vol 35, p 393.

646.120

ATTY. GEN. OPINIONS: Sale at two prices with each below

cost, ( 1970) Vol 35, p 393.

646. 170


646.260

ATTY. GEN. OPINIONS: District attorney enforcing anti- price discrimination statutes, 1956 -58, p 141.

646.310 to 646.370

NOTES OF DECISIONSFair Trade Act was constitutional as applied to the actual

parties to a contract entered into pursuant to its terms. General Elec. Co. v. Wahle, ( 1956) 207 Or 302, 296 P2d 635.

Fair Trade Act as it applies to nonsigners of fair tradecontracts was unconstitutional and void. Id.

ATTY. GEN. OPINIONS: Construing Anti-Price Discrimi- nation Law, ( 1970) Vol 35, p 393.


646.310

CASE CITATIONS: Federal Cartridge Corp. v. Helstrom, 1954) 202 Or 557, 276 P2d 720; Schmidt v. City of Cornelius, 1957) 211 Or 505, 524, 316 P2d 511; General Elec. Co. v.

Wender, ( 1957) 151 F Supp 621.


646.340

NOTES OF DECISIONSFair Trade Act is unconstitutional and void as ,to non -

signers of fair trade contracts. General Elec. Co. v. Wahle, 1956) 207 Or 302, 296 P2d 635.

FURTHER CITATIONS: Federal Cartridge Corp. v. Hel- strom, ( 1954) 202 Or 557, 276 P2d 720.

646.360


646.370

NOTES OF DECISIONS

Although a retailer was not himself a party to the contract he could be enjoined from selling a commodity forless than the minimum retail price set by the manufacturerby contract with other dealers where he had both notice

613

SUPERSEDED

646.430

and knowledge of the price. The Borden Co. v. Schreder, 1947) 182 Or 34, 185 P2d 581.

If the fair trade contract affects interstate commerce it

does not affect nonsigners, notwithstanding the provisionsof this section. Lambert Pharmacal Co. v. Roberts Bros.,

1951) 192 Or 23, 233 P2d 258.

The provisions of this section relating to nonsigners donot affect transactions consummated prior to July 14, 1952. Federal Cartridge Corp. v. Helstrom, ( 1954) 202 Or 557, 276P2d 720.

Fair Trade Act is unconstitutional and void as to non-

signers of fair trade contracts. General Elec. Co. v. Wahle, 1956) 207 Or 302, 296 P2d 635.

646.430

ATTY. GEN. OPINIONS: Reasonableness of classification,

1954 -56, p 14.

646.605 to 646.652

ATTY. GEN. OPINIONS: Legality of offering a car witherroneous mileage on odometer, ( 1969) Vol 34, p 811.

LAW REVIEW CITATIONS: 45. OLR 132 -139; 49 OLR 426;

50 OLR 33.

646.608

NOTES OF DECISIONS

Under former similar statute instruction was properly

refused where figures complained of as constituting mis- branding were not placed for advertising as the term wasused in the statute, or in such a manner as to attract atten- tion or to mislead anyone. Laubhein v. Holsman, ( 1924) 111

Or 78, 225 P 190.

Under former similar statute, whether article was mis-

branded was a question for determination of jury. Id.

ATTY. GEN. OPINIONS: Prosecuting a publishing company, not acting in good faith in holding out to the publicthat one is licensed to practice professional engineeringwhen he is not so licensed, for false advertising, 194446, p 24; misleading advertisement of drugs, 1962 -64, p 448; legality of offering a car with erroneous mileage on odometer, ( 1969) Vol 34, p 811.

LAW REVIEW CITATIONS: 48 OLR 157, 159; 49 OLR 426.

646.860

ATTY. GEN. OPINIONS: Legality of dealer or lessor disconnecting odometer, ( 1969) Vol 34, p 811.

646.990

ATTY. GEN. OPINIONS: Accusing manager or owner, 1962 -64, p 459; punishing violations of ORS 646. 100, ( 1970) Vol 35, p 393.


614

SUPERSEDED

is

Chapter 647

Trade and Service Marks

Chapter 647

ATTY. GEN. OPINIONS: Registration of "certification" or

collective" marks, 1958 -60, p 410; requirements for notifi- cation of expiration of trade- marks, 1962 -64, p 9; improperlygranted trade -mark, 1962 -64, p 128.

647.005

NOTES OF DECISIONS


The office of a trade -mark was to indicate with certaintythe origin or ownership of the article to which it was af- fixed. Coleman v. Flavel, ( 1886) 40 Fed 854.

Words in common use could ordinarily be adopted astrade - marks, if at the time of their adoption, they were notemployed to designate the same or like articles. Id.

There was a well recognized distinction between a

trade -mark and a trade name. Wood v. Wood, ( 1915) 78

Or 181, 151 P 969, Ann Cas 1918A, 226, LRA 1916C, 251.

ATTY. GEN. OPINIONS: Emblem intended to be used to

indicate membership in an association as subject for registration, 1920 -22, p 42; " Trustment" as trade -mark, 1920 -22, p 92; what can be registered as trade -mark, 1920 -22, p 531; Kodak Finishing Service" as trade -mark, 1920 -22, p 544;

eligibility to registration of trade -mark registered under

federal laws, 1920 -22, p 677; " Multnomah" as trade -mark, 1922 -24, p 755; eligibility for registration of trade -mark ofassociations for use on publications and pamphlets com-

prising advertising matter, or correspondence courses oreducational books, 1924 -26, p 15; registration of trade -markincluding words of endorsement by state institution, 1924- 26, p 19; " Color scheme" or "complete dress -up" of taxicabsas eligible for registration, 1924 -26, p 137; addition of designof cherries to registered trade -mark, 1924 -26, p . 177;

K.G.W." as trade -mark, 1926 -28, p 244; " Better Service

Stores, Inc." as trade -mark, 1926 -28, p 330; negotiable certificates of title and contracts of sale as articles of mer-

chandise, 1928 -30, p 73; business of radio broadcasting company as subject of trade -mark, 1928 -30, p 162; " Ore -N -CoNurseries" as trade -mark, 1928 -30, p 311; certification markas " trade- mark," 1958 -60, p 410; proof of " use" of trade- mark, 1960 -62, p 283.

647.015

ATTY. GEN. OPINIONS: " National Coal" as trade -mark,

1928 -30, p 373; " Price -Rite It's the Price That Counts," Price-Rite," and " Price -Rite Grocery" as trade - marks,

1938-40, p 74; proof of " user," 1960 -62, p 283.

647.035

ATTY. GEN. OPINIONS: " Butter Cream" as trade -mark,

1920 -22, p 682; " Maid O' Sweet Cream Butter" as trade-

mark, 1926 -28, p 32; " Walgreen Drugs With a Reputation" as trade -mark, 1926 -28, p 229; " Million Dollar" as trade-

mark, 1928 -30, p 372; " A -1" as trade -mark, 1928 -30, p 372; Portina" as trade -mark, 1936 -38, p 203; " Sautola" as

trade -mark, 1936 -38, p 203; registration issued prior to 1961law, 1960 -62, p 283.

647.045

ATTY. GEN. OPINIONS: Proof of " user," 1960 -62, p 283.

647.055

ATTY. GEN. OPINIONS: Registrations issued prior to 1961

law, 1960 -62, p 283; notice regarding renewal of registrationsunder subsection ( 3), 1962 -64, p 10.

647.075

ATTY GEN. OPINIONS: Authority of Secretary of Stateto cancel registration of trade -mark, 1926 -28, p 177; authority and duty of Secretary of State in connection with theregistration of a five - pointed star as a trade -mark, 1926 -28,

p 398; registrations issued prior to 1961 law, 1960 -62, p 283; improperly granted trade -mark, 1962 -64, p 128.

647.085

ATTY. GEN. OPINIONS: Proof of " user," 1960 -62, p 283.

647. 105

CASE CITATIONS: The 88¢ Stores v. Martinez, ( 1961) 227

Or 147, 361 P2d 809.

615

SUPERSEDED

Chapter 648

Assumed Business Names

Chapter 648

CASE CITATIONS: Keller v. Lonsdale, ( 1959) 216 Or 339, 339 P2d 112.

ATTY. GEN. OPINIONS: " Persons" using assumed businessname, 1962 -64, p 319; notice to nonresidents of changes infiling requirements, 1962 -64, p 381; corporations using assumed business names, 1964 -66, p 55; registering corporatename omitting the " inc." as an assumed business name,

1964 -66, p 87; requirement of corporate -designation in assumed business name, 1964 -66, p 217.


648.010

NOTES OF DECISIONS

I. In general

The certificate must be signed and acknowledged by allthe persons interested in the business. Balfour, Guthrie &

Co. v. Knight, ( 1917) 86 Or 165, 167 P 484. The statute permits but one name for a single business.

Starr v. Hotelling, ( 1942) 168 Or 267, 122 P2d 432. This section does not apply to single, isolated transac-

tions, but to continuing commercial activity. Keller v. Lonsdale, ( 1959) 216 Or 339, 339 P2d 112.

The names " Moler Barber College" and " Mohler Barber

School" were practically synonymous, as regards right toinjunction for unfair competition. Danton v. Mohler Barber

School, ( 1918) 88 Or 164, 170 P 288. The statute does not render void agreements entered into

by offending partnership, especially where the partnershipgave and did not obtain credit. Uhlmann v. Kin Daw, ( 1920)

97 Or 681, 193 P 435.

Appending the address, " City Garage, Dallas, Oregon," to a party' s signature to a contract, did not constitute theuse of a fictitious or assumed name, not registered as re-

quired by statute, so as to prevent a recovery on the contract. Sayles v. Daniels Sales Agency, ( 1921) 100 Or 37, 38, 196 P 465.

A cleaning business under an assumed name " PortlandHeights Cleaners" could not adopt a second assumed name

Portland Cleaners" to be used simultaneously with theformer. Starr v. Hotelling, ( 1942) 168 Or 207, 122 P2d 432.

2. Application to interstate commerce

The requirements of this section do not apply to interstatecommerce. Loveland v. Warner, ( 1902) 103 Or 638, 639, 204P 622, 206 P 298.

Where goods to be used as premiums were sold and

shipped from another state, and notes were executed inpayment of the premiums, and seller agreed to send orga-

nizer to assist buyer within the state, and to pay certainamounts in cash if business of buyer was not increased, and buyer did not permit the organizer sent into the state

to do anything in relation to the business, the seller cannotbe held to have carried on, transacted, or engaged in busi-

ness in the state, within the meaning of the above section

and the seller could recover the purchase price of the pre-

miums in the state courts without filing such certificate, though it might in the future possibly do something withinthe ban of the statute. Id.

FURTHER CITATIONS: Hunter v. Cunning, ( 1944) 176 Or250, 154 P2d 562, 157 P2d 510; Lift Truck Parts & Service,

Inc. v. Bourne, ( 1963) 235 Or 446, 385 P2d 735; Bufton v.

Hoseley, ( 1963) 236 Or 12, 386 P2d 471; Carter v. Clear FirSales Co., ( 1967) 284 F Supp 386.

ATTY. GEN. OPINIONS: Use by firm of architects of nameof deceased partner, 1930- 32, p 424; procedure in case ofthe death of one member of a firm of architects, 1932 -34,

p 287; right of corporation organized under laws of stateto conduct a motor transportation business under an as-

sumed name, 1932 -34, p 615; authority to require changeof name of laundry before filing, 1938 -40, p 739; requirementthat partnership operating a collection agency under twodifferent assumed names at two separate locations mustobtain licenses under both assumed names and file a bond

for each place of business, 1944 -46, p 491; fees for registration, cancelation and reregistration of assumed business

names, 1948 -50, p 240; revocation of license on the groundof an assumed name similar to another firm, 1950 -52, p 109; legality of distributing a collection system form book, 1950 -52, p 301; state license as not issuing to a marriedwoman in any other surname than that of her husband, 1950 -52, p 375; notice required by 1963 statute to personspreviously holding certificates, 1962 -64, p 319; use of "& Co." in business name of individual accountant, 1962 -64,

p 371; notice to nonresidents of changes in filing requirements, 1962 -64, p 381; names using " corp." or " inc." thatare not corporate names, 1964 -66, p 55; necessity for assumed business name of corporation to contain a corporate

designation, 1964 -66, p 217.

648.015

NOTES OF DECISIONS

An arrangement of purely generic or descriptive wordscan acquire a secondary meaning and thereby create aprotectible interest in a trade name. Lift Truck Parts & Service, Inc. v. Bourne, ( 1963) 235 Or 446, 385 P2d 735.

Defendant' s business name was found so similar to plain-

tiffs as to cause confusion. Id.

FURTHER CITATIONS: The 880 Stores v. Martinez, (1961)

227 Or 147, 361 P2d 809.

ATTY. GEN. OPINIONS: Avoiding duplication or similarity, 1962 -64, p 319; names using " corp." or " inc." that are notcorporate names, 1964 -66, p 55.

648.050

ATTY. GEN. OPINIONS: Fees for registration, cancellation

and reregistration of assumed business names, 1948 -50, p

616

is

SUPERSEDED

240; notice required by 1963 statute to persons previouslyholding certificates, 1962 -64, p 319.

648.061

NOTES OF DECISIONSThis section does not require a foreign corporation to

surrender its right of removal to the federal courts by filingand operating under an assumed trade name. Carter v. ClearFir Sales Co., ( 1967) 284 F Supp 386.

ATTY. GEN. OPINIONS: Requirement that nonresident real

estate broker wishing to do business under assumed namemust file consent to substituted service with Secretary ofState and Real Estate Commissioner, 1940 -42, p 175; changeof filing office for consent to service, 1962 -64, p 382.

648.070

CASE CITATIONS: Carter v. Clear Fir Sales Co., ( 1967) 284

F Supp 386.

ATTY. GEN. OPINIONS: Change of filing office for consentto service, 1962 -64, p 382.

648.090

NOTES OF DECISIONS

1. Necessity of pleadingA justice court is not deprived of jurisdiction of a suit

by a person doing business under an assumed name becausethe certificate required by this section is not filed with thecounty clerk, unless the defect is raised by a special demurrer in the nature of a plea in abatement, since the Act

affects the qualification of the party to sue and not thestatement of the cause of action. Beamish v. Noon, ( 1915)

648.090

76 Or 415, 419, 149 P 522; Schucking & Co. v. Young, ( 1915) 78 Or 483, 494, 153 P 803.

The defense that plaintiff had failed to comply with thestatutory requirements of this chapter is waived, if not setup either by answer or demurrer. Benson v. Johnson, ( 1917) 85 Or 677, 680, 165 P 1001, 167 P 1014.

When the complaint contains an allegation that plaintiffs

assignor was doing business under an assumed name, thedefense that he had not complied with the statute is waivedif not pleaded. Columbia River Door Co. v. Todd, ( 1918) 90 Or 147, 175 P 443, 860.

Where the complaint does not in any way disclose afailure on the part of the plaintiff to comply with the statute, the issue can be raised only by a plea in abatement. Sayles .v. Daniels Sales Agency, ( 1921) 100 Or 37, 38, 196P 465.

The defense that plaintiff his been doing business underan assumed name without filing the certificate required bylaw, must be grounded on a sufficient pleading. Lovelandv. Warner, ( 1922) 103 Or 638, 639, 204 P 622, 206 P 298.

When the defendant fails to plead the defense that plain-

tiff had failed to comply with the statute, he thereby waivesthe defense. Rowland v. Nat. Reserve Ins. Co., ( 1926) 118

Or 139, 246 P 210.

2. Proof

Where the complaint alleges full compliance with laws

relating to firm names, and defendant's answer admits suchallegations to be true, such admission relieves plaintiff from

proving the allegation admitted, the same being consideredconclusive evidence of such facts. Beamish v. Noon, ( 1915)

76 Or 415, 149 P 522; Schucking & Co. v. Young, ( 1915) 78 Or 483, 494, 153 P 803.

FURTHER CITATIONS: Keller v. Lonsdale, ( 1959) 216 Or

339, 339 P2d 112; Peer v. Claremont, ( 1960) 188 F Supp 641.

617

SUPERSEDED

Chapter 649

Insignia and Names of Organizations

Chapter 649

AM. GEN: OPINIONS: Registration of name and insignia

of one other than maker, owner or seller, 1958 -60, p 410; registration of insignia embodying replica of Seal of Stateof Oregon, 1960 -62, p 15.

649.010

ATIY. GEN. OPINIONS: Registration of name and insignia

of one other than maker, owner or seller, 1958 -60, p 410.

649.080

ATIY. GEN. OPINIONS: Disposition of fines collected,

1958 -60, p 129.

618

u

J

SUPERSEDED

Chapter 651

Bureau of Labor

Chapter 651

ATTY. GEN. OPINIONS: Duty of commissioner to enforceprovisions forbidding pay discrimination based on sex, 1954 -56, p 132; commissioner's authority to hire employes, 1960 -62, p 424.

651. 020

ATTY. GEN. OPINIONS: Authority of State ApprenticeshipCouncil to set director's salary, 1964 -66, p 121.

651. 030

ATTY. GEN. OPINIONS: Authority of State ApprenticeshipCouncil to set director's salary, 1964 -66, p 121.

651. 050

CASE CITATIONS: Hillman v. No. Wasco County P.U.D., 1958) 213 Or 264, 323 P2d 664.

ATTY. GEN. OPINIONS: Duty of commissioner to enforceprovisions forbidding pay discrimination based on sex,

1954 -56, p 132; National Electrical Code as state electricalcode, 1956 -58, p 23.

651. 110

ATI'Y. GEN. OPINIONS: Confidentiality of informationobtained by the bureau under fair employment practicesact, 1952 -54, p 54.

651. 130

A=. GEN. OPINIONS: Information to be furnished byreports of owners, etc., and compelling the giving of such

information, 1920 -22, p 572.

651. 140

ATI'Y. GEN. OPINIONS: Confidentiality of informationobtained by the bureau under fair employment practicesact, 1952 -54, p 54.

651. 160

ATTY. GEN. OPINIONS: Construing " activity," ( 1969) Vol

34, p 496.

619

SUPERSEDED

Chapter 652

Hours of Labor;

Payment of Wages

Chapter 652

CASE CITATIONS: State ex rel. Nilsen v. Cushing, ( 1969) 253 Or 262, 453 P2d 945.

652.010

NOTES OF DECISIONS

1913 c. 102 [ ORS 652.010, 652.020, 652.030 and 652.9901 isa legitimate exercise of the police power. State v. Bunting, 1914) 71 Or' 259, 139 P 731, Ann Cas 1916C, 1003, LRA

1917C, 1162, afrd, 243 US 426, 37 S Ct 435, 61 L Ed 830;

Sumpter v. St. Helens Creosoting Co., ( 1917) 84 Or 167, 164

P 708.

652.020

NOTES OF DECISIONS

The proviso permitting overtime not to exceed threehours a day does not render the whole Act void. State v. Bunting, ( 1914) 71 Or 259, 139 P 731, Ann Cas 1916C, 1003, LRA 1917C, 1162.

The prohibition of this section does not apply to a servantmaking ordinary repairs as the term " necessary repairs" is construed as convenient or needful repairs. State v.

Young, ( 1915) 74 Or 399, 145 P 647. There is an account stated which bars an action for

overtime where an employe signs a time check stating thetime and amount due, and receives payment without objec

tion. Sumpter v. St. Helens Creosoting Co., ( 1917) 84 Or

167, 164 P 708.

A waiver of an employers civil remedy after labor isperformed is possible in spite of OL 6 -710 [ ORS 652.990 ( 1)]

which relates only to the criminal prosecution; such a

waiver results from signing a time check amounting to anaccount stated. Id.

652.050

ATTY. GEN. OPINIONS: Fire house custodian as a " firefighter," 1948 -50, p 247.

652. 110

CASE CITATIONS: Chamberlain v. Townsend, (1914) 72 Or

207, 142 P 782. 143 P. 924; Coos Bay Lbr. Co. v. Local 7 -116, Intl. Woodworkers of America, ( 1955) 203 Or 342, 279 P2d

508, 280 P2d 412; McClendon v. Kenin, ( 1963) 235 Or 588, 385 P2d 615; State ex rel. Nilsen v. Whited, ( 1964) 239 Or149, 396 P2d 758.

ATTY. GEN. OPINIONS: Negotiability of " identificationcertificate" and " certificate of time" issued by contractors, 192426, p 168; issuance and sale of coupon books by- con- struction companies in connection with its store and com-

missary as a violation of law, 1928 -30, p 220; payment ofwages in cash or order, check or memorandum to be paid

without discount in cash on demand in county where issued, 1942 -44, p 126.

652. 120

NOTES OF DECISIONS

An employer may deduct insurance premium paymentsfrom wages in accordance with a contract with a union

even though such deductions were not authorized by theindividual employe. Coos Bay Lbr. Co. v. Local 7 -116, Intl. Woodworkers of America, ( 1955) 203 Or 342, 279 P2d 508, 280 P2d 412.

652. 130

NOTES OF DECISIONS

This section does not prevent the provisions of OCLA

102 -604 [ ORS 652. 140 to 652. 170] from being applicable toemployers engaged in the logging business who hire-piecework employes. McGinnis v. Keen; ( 1950) 189 Or 445, 221P2d 907.

652. 140

NOTES OF DECISIONS

Termination of employment due to completion of the

work is a " discharge" within the meaning of this section. McGinnis v. Keen, ( 1950) 189 Or 445, 221 P2d 907.

Loggers are not dealing with " perishable or seasonalcommodities" within the meaning of the proviso to this Act. Id.

An employe who brings an action under OCLA 102 -604

ORS 652. 140 to 652. 170] need not negative his possiblestatus as an independent contractor. Id.

Employers engaged in forest product industries are sub - ject to the penalties listed in OCLA 102 -604 [ ORS 652. 140

to 652. 1701 despite their inclusion in OCLA 102 -605 and102 -606 [ORS 652. 130 and 652.990(4)]. Id.

Wages" means all earned compensation contracted for,

including vacation pay. State ex rel. Nilsen v. Oregon StateMotor Assn., ( 1967) 248 Or 133, 432 P2d 512.

The allegation that money became due on a certain date, as a basis for interest allowance under OL 7988 [ORS 82.010]

supported by a statement of the time labor was performedand when it was terminated was more than a mere conclu-

sion of law in view of this section. Carlson v. New Amster- dam Cas. Co., ( 1925) 118 Or 542, 247 P 804.

It was for the jury to determine whether there was atermination and whether the employer should be charged

with knowledge of such termination. State v. Johnson,

1962) 233 Or 103, 377 P2d 331.

FURTHER CITATIONS: Nordling v. Johnston, ( 1955) 205Or 315, 283 P2d 994, 287 P2d 420; State ex rel. Nilsen v. Whited, ( 1964) 239 Or 149, 396 P2d 758.

652. 150

NOTES OF DECISIONS

The piecework employe receives the benefits of ORS

652. 140 to 652. 170 with the penalty recovery being measuredby the amount earned in a period immediately preceding

620

is

SUPERSEDED

the cessation of the employment equal to the delay inpayment, but under no circumstances more than 30 days. McGinnis V. Keen, ( 1950) 189 Or 445, 221 P2d 907; State

ex rel. Nilsen v. Adams, ( 1967) 248 Or 269, 431 P2d 270. But

see Nordling v. Johnston, ( 1955) 205 Or 315, 283 P2d 994, 287 P2d 420.

Termination of employment due to completion of the

work is a " discharge" within the meaning of this section. McGinnis v. Keen, ( 1950) 189 Or 445, 221 P2d 907.

Workmen "performing under a joint contract can join ina single action to recover the penalty prescribed in thissection. Id.

This section is penal in character. Nordling v. Johnston, 1955) 205 Or 315, 283 P2d 994, 287 P2d 420.

Rights arising under this section are assignable. Id. The amount of the penalty is not to be determined by

the amount which the employe earned, but by the rate ofpay at which he worked. Id.

Section was not unconstitutional for uncertainty or asa violation of due process. State v. Johnson, ( 1962) 233 Or

103, 377 P2d 331.


including vacation pay. State ex rel. Nilsen v. Oregon StateMotor Assn., ( 1967) 248 Or 133, 432 P2d 512.

Plaintiff's claims for penalties under this section may beincluded in determining the jurisdictional amount Rake v. City Lbr. Co., ( 1967) 283 F Supp 870.

Plaintiff has the burden of showing the failure was wilful. State ex rel. Nilsen v. Lee, ( 1968) 251 Or 284, 444 P2d 548.

This section leaves no discretion with the court in fixingthe amount of the penalty. State ex rel. Nilsen v. Cushing,

1969) 253 Or 262, 453 P2d 945.

The penalty under this section is mandatory. Id.

FURTHER CITATIONS: State ex rel. Nilsen v. Whited, 1964) 239 Or 149, 396 P2d 758; State ex rel. Nilsen v. Berry, 1967) 248 Or 391, 434 P2d 471.

LAW REVIEW CITATIONS: 37 OLR 88, 91; 40 OLR 60.

652. 160

NOTES OF DECISIONS

See also cases under ORS 652. 140 and 652. 150.

FURTHER CITATIONS: State ex rel. Nilsen v. Adams,

1967) 248 Or 269, 433 P2d 831.

652. 170

NOTES OF DECISIONS

See cases under ORS 652. 140 and 652. 150.

652.200

NOTES OF DECISIONS

In an action for labor against surety on road contractor'sbond under facts warranting recovery against principal, attorney's fees may be recovered. Carlson v. New Amster- dam Cas. Co., ( 1926) 118 Or 542, 247 P 804.

The only instance in which a laborer cannot recoverattorney' s fee in action to collect wages not paid within48 hours of demand is where he voluntarily quits withoutgiving three days' notice. Id.

Under a statute, where attorney fees are made a partof costs, allowance is to be considered as a part of the cost

bill. State ex rel. Nilsen v. Adams, ( 1967) 248 Or 269, 433P2d 831.

Plaintifrs claim for attorney fees under this section maybe included in determining the jurisdictional amount. Rakev. City Lbr. Co., ( 1967) 283 F Supp 870.

An employe, suing for wages after remaining on job until

652.330

its completion and after statutory demand, was entitled toattorney's fees without having given three -day notice. Nirschl v. Nirschl, ( 1926) 119 Or 478, 249 P 1099.

FURTHER CITATIONS: Chamberlain v. Townsend, ( 1914) 72 Or 207, 142 P 782, 143 P 924; Olson v. Heisen, ( 1918) 90

Or 176, 175 P 859; Martin v. Glenbrook Farms Corp., ( 1924)

110 Or 87, 222 P 1102; Cummings v. Cent. Ore. Bank, ( 1924)

110 Or 101, 223 P 236; Tenlason v. Pac. Fruit Package Co.,

1924) 112 Or 633, 230 P 547; Nordling v. Johnston, ( 1955) 205 Or 315, 283 P2d 994, 287 P2d 420; State ex rel. Nilsenv. Whited, ( 1964) 239 Or 149, 396 P2d 758.

ATTY. GEN. OPINIONS: Enforcement of " equal pay forequal work law" by commissioner, 195456, p 132.

652.220

ATTY. GEN. OPINIONS: Enforcement of " equal pay forequal work law" by commissioner, 1954 -56, p 132.

652.230

ATTY. GEN. OPINIONS: Enforcement of " equal pay forequal work law" by commissioner, 1954 -56, p 132.

652.310 to 652.410

CASE CITATIONS: State ex rel. Nilsen v. Whited, ( 1964) 239 Or 149, 396 P2d 758; State ex rel. Nilsen v. Ore. StateMotor Assn., ( 1967) 248 Or 133, 432 P2d 512.

652.310

NOTES OF DECISIONS

Person hiring a baby sitter is an employer as defined bythis section. State ex rel. Nilsen v. Cushing, ( 1969) 253 Or262, 453 P2d 945.

Defendants were not successors to the business of theformer employer but only new managers. State ex rel. Nil- sen v. Lee, ( 1968) 251 Or 284, 444 P2d 548.

FURTHER CITATIONS: State ex rel. Nilsen v. Bean, ( 1959) 218 Or 506, 346 P2d 652.

ATTY. GEN. OPINIONS: School districts as " employers,"

teachers as " employes," 1950 -52, p 309; contract for deduction of insurance premiums from wages, 1954 -56, p 79; enforcement of "equal pay for equal work" law by commissioner, 195456, p 132.

652.320

NOTES OF DECISIONS


including vacation pay. State ex rel. Nilsen v. Ore. StateMotor Assn., ( 1967) 248 Or 133, 432 P2d 512.

C* fl k

NOTES OF DECISIONS

The commissioner' s authority extends to collection ofvacation pay. State ex mi. Nilsen v. Ore.-State Motor Assn., 1967) 248 Or 133, 432 P2d 512.

If wrongfully discharged employe resorts to courts beforegrievance procedure of collective bargaining agreement hasbeen fully exhausted, employer in industry affecting interstate commerce may defend on the ground that the exclusive remedies provided by a contract have not been exhausted. State ex rel. Nilsen v. Berry, ( 1967) 248 Or 391, 434 P2d 471.

621

SUPERSEDED

652.335

FURTHER CITATIONS: State v. Bean, ( 1959) 218 Or 506,

346 P2d 652; State v. Johnson, ( 1962) 233 Or 103, 377 P2d

331; State v. Dental Serv., Inc., ( 1962) 232 Or 474, 376 P2d

91; State ex Tel. Nilsen v. Dent, ( 1966) 243 Or 396, 413 P2d

58; State ex Tel. Nilsen v. Adams, ( 1967) 248 Or 269, 431

P2d 270; State ex Tel. Nilsen v. Cushing, ( 1969) 253 Or 262, 453 P2d 945.

ATTY. GEN. OPINIONS: Right to recover attorney's feesand costs in cases prosecuted by commissioner for thecollection of wages, 1934 -36, p 186; necessity for advancement of filing or other fees by commissioner in connectionwith action to collect assigned labor claims, 1936 -38, p 598; enforcement of "equal pay for equal work law" by commissioner, 1954 -56, p 132.

652.335

NOTES OF DECISIONS

This section was constitutional and not an arbitrary orunreasonable exercise of the state' s police power. State ex

Tel. Nilsen v. Whited, ( 1964) 239 Or 149, 396 P2d 758.

This section did not violate the equal protection clause.

Id.

652.340

CASE CITATIONS: State ex Tel. Nilsen v. Whited, ( 1964)

239 Or 149, 396 P2d 758.

NOTES OF DECISIONS

Recovery of the penalty is dependent upon determinationthat wages are due and unpaid. State v. Dental Serv., Inc.,

1962) 232 Or 474, 376 P2d 91.

FURTHER CITATIONS: State v. Bean, ( 1959) 218 Or 506,

346 P2d 652; State ex Tel. Nilsen v. Berry, ( 1967) 248 Or 391, 434 P2d 471; State ex Tel. Nilsen v. Lee, ( 1968) 251 Or 284,

444 P2d 548; State ex Tel. Nilsen v. Cushing, ( 1969) 253 Or262, 453 132d 945.

652.360

ATTY. GEN. OPINIONS: Applicability to school districts, 1950 -52, p 309.

652.370

CASE CITATIONS: State ex Tel. Nilsen v. Bean, ( 1959) 218

Or 506, 346 P2d 652.

652.390

CASE CITATIONS: State ex Tel. Nilsen v. Bean, ( 1959) 218Or 506, 346 P2d 652; State v. Dental Serv., Inc., ( 1962) 232

Or 474, 376 P2d 91.

652.400

ATTY. GEN. OPINIONS: Contract for deduction of insurance premiums from wages, 1954 -56, p 79.

652.410

ATTY. GEN. OPINIONS: Authority of employer rejectingthe provisions of the Workmen's Compensation Law todeduct insurance costs from the earnings of the employe, 1954 -56, p 79.

652.510

NOTES OF DECISIONS

1. In general

This Act [ORS 652.510 to 652. 570] is to be strictly construed. Johnston v. Barrills, ( 1895) 27 Or 251, 256, 41 P 656,

50 Am St Rep 717. This section charges property that is seized or assigned

with prior payment of accrued claims of laborers and em-

ployes. Falconio v. Larsen, ( 1897) 31 Or 137, 144, 48 P 703, 37 LRA 254.

The statute creates a substantive right, and not the rightto acquire it by the doing of certain things or the observance of certain conditions. Id.

This enactment does not create a lien but invests a laborer or employe with the rights and privileges of a preferred

creditor, and directs the order of his payment out of a fundwhich is already in the custody of the law for the purposeof administration. Id.

2. " Laborers or employes"

A laborer or employe is one who performs work in person

and who earns his livelihood by personal manual labor. Johnston v. Barrills, ( 1895) 27 Or 251, 256, 41 P 656, 50 Am

St Rep 717. Members of a copartnership engaged to thresh grain for

a fixed price are not " laborers or employes" within themeaning of this section, and their compensation is notwages. Id.

3. Assignment of claim

A claim for wages under this Act [ORS 652.510 to 652. 570] is assignable after presentation, and when it is assigned, the assignee may maintain a suit thereon in his own name, and the fact that the claim is assigned for collection onlydoes not destroy its validity or affect the right of the holderto sue in his own name. Falconio v. Larsen, ( 1897) 31 Or137, 146, 48 P 703, 37 LRA 254.

FURTHER CITATIONS: Marquam v. Sengfelder, ( 1893) 24

Or 2, 15, 32 P 676; Security Trust Co. v. Goble R.R., ( 1904)

44 Or 370, 74 P 919, 75 P 697; In re Western CondensedMilk Co., ( 1919) 261 Fed 62, 171 CCA 658; Nordling v. John- ston, ( 1955) 205 Or 315, 283 P2d 994, 287 P2d 420.

652.520

NOTES OF DECISIONS


652.530

NOTES OF DECISIONS


S,YAifll

NOTES OF DECISIONS

See also cases under ORS 652.510

A claim for preference may be considered as a complaintin intervention and the exceptions thereto as an answer.

Johnston v. Barrills, ( 1895) 27 Or 251, 256, 41 P 656, 50 Am

St Rep 717. Exceptions to a claim for preference should raise an issue

as to the material allegations of the claim, and, unless theydo, the claimant need not establish his claim by a judgment. Id.

652.710

ATTY. GEN. OPINIONS: Extent to which federal regulation

622

J

l u

SUPERSEDED

of the care and treatment of injured railway workers pre- empt the field, 1966 -68, p 266.

652.990

NOTES OF DECISIONS

The penalty prescribed in subsection ( 4) should only be

652.990

executed when the employer fails to furnish the statement

required by OCLA 102 -605 [ORS 652. 1301. McGinnis v. Keen, 1950) 189 Or 445, 221 P2d 907.

Subsection ( 4) does not prevent the provisions of OCLA

102 -604 [ ORS 652. 140 to 652. 170] from being applicable toemployers engaged in the logging business who hire piecework employes. Id.

623

SUPERSEDED

Chapter 653

Conditions of Employment

Chapter 653

NOTES OF DECISIONS

The minimum wage law of 1913 [ ORS 653.520 to 653.540

and former ORS 653. 105 to 653. 125, 653.205 to 653.2501 wasa valid exercise of the police power and not in conflict with

U.S. Const., Am. 14, the due process clause. Stettler v.

O' Hara, ( 1914) 69 Or 519, 139 P 743, Ann Cas 1916A, 217,

LRA 1917C, 944; Simpson v. O' Hara, ( 1914) 70 Or 261, 141

P 158; afrd without opinion, Stettler v. O' Hara and Simpsonv. O' Hara, ( 1917) 243 US 629, 37 S Ct 475, 61 L Ed 937.

The purpose of the minimum wage law is to protect the

lives, health and morals of women and minor workers byfixing the minimum wages, maximum hours and the standard conditions of labor under which the work is to be done.

Fred Meyer, Inc. v. Keasey, ( 1933) 145 Or 266, 27 P2d 311. A liberal construction should be given the statute but

it should not be extended so as to authorize the commission

to exercise power which the legislature did not intend that

it should have. Id.

FURTHER CITATIONS: Williams v. Corbett, ( 1955) 205 Or

69, 286 P2d 115.

ATTY. GEN. OPINIONS: Application to juveniles workingunder court order, 1962 -64, p 423.

653.015

CASE CITATIONS: Williams v. Corbett, ( 1955) 205 Or 69,

286 P2d 115.

ATTY. GEN. OPINIONS: Fixing wages and hours of womenand minors in professional work such as cosmetic therapy, 1952 -54, p 229.

653.020

ATTY. GEN. OPINIONS: Applicability to migrant agricultural workers, ( 1970) Vol 35, p 305, 321.

653.261

NOTES OF DECISIONS

L.In general

Under the supremacy clause of the U. S. Constitution, afederal statute will prevail over state regulations. Richards

v. Griffith Rubber Mills, ( 1969) 300 F Supp 338.


An order applying only to Portland did not give an employer in Portland unequal protection of the law. Stettlerv. O' Hara, ( 1914) 69 Or 519, 536, 139 P 743, Ann Cas 1916A, 217, LRA 1917C, 944, afrd without opinion, ( 1917) 243 US629, 37 S Ct 475, 61 L Ed 937.

The statute was constitutional under Ore. Const. Art.

I, § 1, declaring all men have equal rights, or §20, forbiddingthe granting of special privileges to particular persons. Statev. Muller, ( 1906) 48 Or 252, 85 P 855, 120 Am St Rep 805,

11 Ann Cas 88, affd on other grounds 208 US 412, 28 S

Ct 324, 52 L Ed 551, 13 Ann Cas 957.

Under the police power a state had the right to regulate

the working hours of women, and that power was notaffected by other laws of the state granting or denying towomen the same rights as to contracts and the elective

franchise as are enjoyed by men. Muller v. Ore., ( 1908) 208

US 412, 28 S Ct 324, 52 L Ed 551, 13 Ann Cas 957, affd

48 Or 252, 85 P 855, 20 Am St Rep 805, 11 Ann Cas 88. The statute was intended to protect women and minors

from being compelled to work unreasonably long hours, atinadequate wages or under conditions pernicious to health

and morals. Fred Meyer, Inc. v. Keasey, ( 1933) 145 Or 266, 27 P2d 311.

The particular hours of the day for work by women couldnot be prescribed by the commission. Id.

Employment at any hour during the day of women instores was contemplated by the statute, provided they didnot work more than 10 hours during the 24 hours of one

day or 60 hours during any one week." Id. Order of commission could further restrict hours of em-

ployment. Williams v. Corbett, ( 1955) 205 Or 69, 286 P2d115.

The employment of a boy of 10 during school vacationto serve water to men constructing a county road was legal, as no statute authorized the commission to declare that

no child under 16 should be employed unless he acquired

learning taught in the first eight years of public schools. King v. Union Oil Co., ( 1933) 144 Or 655, 24 P2d 345, 25

P2d 1055.

ATTY. GEN. OPINIONS: Compliance with statute to

change order of commission, 1920 -22, p 284; demand thatemployer employing women and minors produce for inspection books, payrolls, etc., as within authority of commission, 1920 -22, p 369; further restriction of hours of employment by commission as not curtailed, 1924 -26, p 626; order requiring observance of orders of commission byemployes in occupation affected, as within authority ofcommission, 1926 -28, p 224; appearance in musical entertainment with consent of court of a boy violinist under 12years of age, 1928 -30, p 362; walkathon as a violation oflaw regulating and limiting hours of employment of women, 1930 -32, p 245; increase or decrease of minimum wages ofwomen without public hearing, 1930 -32, p 517; cosmetictherapy school students as employes, 1936 -38, p 501; authority to prohibit payment of compensation on piece workbasis for women employed in harvesting, packing, curing, canning or drying any variety of perishable fruit, vegeta- bles, or fish, 1942 -44, p 421; authority of commission to issuepermit for the employment of women in excess of 10 hours

a day or 60 hours a week in an emergency, 1942 -44, p 473; war as an emergency contemplated by the statute, 1942 -44, p 473; fixing wages and hours of women and minors inprofessional work such as cosmetic therapy, 1952 -54, p 229; establishing welfare and sanitary standards, 1956 -58, p•221.

624

SUPERSEDED

653.991

653.305 653.330

NOTES OF DECISIONS CASE CITATIONS: Manke v. Nehalem Logging Co., ( 1957)

The child labor law is not impaired by a determination 211 Or 211, 301 P2d 192, 315 P2d 539. that a minor employe is subject to the Workmen' s Com-

pensation Act. Manke v. Nehalem Logging Co., ( 1957) 211 ATTY. GEN. OPINIONS: Employment as wood carrier toOr 211, 301 P2d 192, 315 P2d 539. fireman, as fireman of logging engine, or to work on rigging,

of minor under 18, 1922 -24, p 379. FURTHER CITATIONS: Williams v. Corbett, ( 1955) 205 Or

69, 286 P2d 115. 653,335

ATTY. GEN. OPINIONS: Applicability to occupation such NOTES OF DECISIONS

as cosmetic therapy, 1952 -54, p 229; establishing welfare and In the absence of an allegation that the foreman orderingsanitary standards, 1956 -58, p 221. the deceased to operate an elevator in violation of this

section acted by the direction or in the presence of a su- 653.307 perior representing the defendant nonresident corporation,

the complaint did not allege a joint liability so as to depriveCASE CITATIONS: Manke v. Nehalem Logging Co., ( 1957) the corporation of its right to remove. Shaver v. Pac. Coast211 Or 211, 301 P2d 192, 315 P2d 539. Condensed Milk Co., ( 1911) 185 Fed 316.

Where an employer knew that a minor under 18 wasATTY. GEN. OPINIONS: Power to revoke permits issued operating an elevator it was its duty to see that he ceasedunder statute, 1922 -24, p 29; authority to enforce against doing so and to discharge him if he persisted. Beaver v. Indians on Indian reservation, 1948 -50, p 318; procedure to Mason, Ehrman & Co., ( 1914) 73 Or 36, 143 P 1000:

excuse child from school for employment, 1950 -52, p 66; Secret instructions to a boy not to run an elevator duringemployer's duty as to certificate, 1950 -52, p 66. the time he did so, which resulted in the death of the

decedent, were immaterial where he had apparent authority653.310 to do so. Thompson v. Union Fisherman' s Co -op. Packing

Co., ( 1929) 128 Or 172, 273 P 953.

CASE CITATIONS: Manke v. Nehalem Logging Co., ( 1957)

211 Or 211, 301 P2d 192, 315 P2d 539. FURTHER CITATIONS: Manke v. Nehalem Logging Co .., 1957) 211 Or 211, 301 P2d 192, 315 P2d 539.

653.315

653.340NOTES OF DECISIONS

This section does not operate as a deprivation of liberty CASE CITATIONS: Manke v. Nehalem Logging Co., ( 1957)

or property without due process; nor does it infringe on 211 Or 211, 301 P2d 192, 315 P2d 539.

the equal rights of citizens. State v. Shorey, ( 1906) 48 Or396, 86 P 881, 24 LRA(NS) 1121. 653,505

FURTHER CITATIONS: Wind R. Lbr. Co. v. Frankfort M., CASE CITATIONS: Stettler v. O' Hara, ( 1914) 69 Or 519, 139A. & P.G. Ins. Co., ( 1912) 116 CCA 160, 196 Fed 340; Mc- P 743, Ann Cas 1916A, 217, LRk 1917C, 944, affd, 243 USGowan v. Maryland, ( 1961) 366 US 421, 81 S Ct 1101, 6 L 629, 37 S Ct 475, 61 L Ed 937. Ed 2d 393.

653.520

ATTY. GEN. OPINIONS: Delivering newspapers before 6a.m. or after 6 p.m. by boy under 16 years of age, 1922 -24, ATTY. GEN. OPINIONS: Commission as succeeding top 571; participation in contest held at night by motion duties of board of inspectors of child labor, 1950 -52, p 66. picture theatres as employment for compensation of chil-

dren under 16, 1926 -28, p 160. 653.525

653.320 NOTES OF DECISIONS

Under the supremacy clause of the United States Consti- NOTES OF DECISIONS tution, a federal statute will prevail over state regulations.

A child 10 years of age legally may be employed during Richards v. Griffith Rubber Mills, ( 1969) 300 F Supp 338. school vacation to serve water to men working upon a roadconstruction project. King v. Union Oil Co., ( 1933) 144 Or 653.991

655, 24 P2d 345, 25 P2d 1055. CASE CITATIONS: Williams v. Corbett, ( 1955) 205 Or 69,

FURTHER CITATIONS: State v. Shorey, ( 1906) 48 Or 396, 286 P2d 115; Manke v. Nehalem Logging Co., ( 1957) 211

86 P 881,• 24 LRA( NS) 1121; Manke v. Nehalem Logging Or 211, 301 P2d 192, 315 P2d 539. Co., ( 1957) 211 Or 211, 301 P2d 192, 315 P2d 539; Kerr v. State Pub. Welfare Comm., ( 1970) 3 Or App 27, 470 P2d ATTY. GEN. OPINIONS: Authority to enforce against167, Sup Ct review denied, cert. denied, 402 US 950. Indians on Indian reservation, 1948 -50, p 318.

is625

SUPERSEDED

Chapter 654

Places of Employment; Safety and Health Regulations

Chapter 654

NOTES OF DECISIONS

This chapter is a separate and independent law adopted

for the protection of employes and applicable to everyemployer. Hillman v. No. Wasco County P.U. D., ( 1958) 213

Or 264, 323 P2d 664.

FURTHER CITATIONS: Hubbard v. Lamford Lbr. Co., Inc.,

1956) 209 Or 145, 304 P2d 943; Galer v. Weyerhaeuser Tbr. Co., ( 1959) 218 Or 152, 344 P2d 544; Davis v. Angell, ( 1959) 218 Or 443, 345 P2d 405; Blaine v. Ross Lbr. Co., Inc., (1960)

224 Or 227, 355 P2d 461; Richardson v. Harris, ( 1964) 238

Or 474, 395 P2d 435.

ATTY. GEN. OPINIONS: Administration by Workmen' sCompensation Board, 1966 -68, p 449, p 611.

654.005 to 654. 155

NOTES OF DECISIONS

A vice principal whose injuries result from his inattention

to his duty to provide a safe place to work cannot holdhis employer liable. Skeeters v Skeeters, ( 1964) 237 Or 204,

389 P2d 313, 391 P2d 386.

FURTHER CITATIONS: Howard v. Foster & Kleiser Co.,

1959) 217 Or 516, 332 P2d 621, 342 P2d 780; Ritter v. Beals,

1961) 225 Or 504, 358 P2d 1080; Renner v. Kinney, ( 1962) 231 Or 553, 373 P2d 668; Short v. Federated Livestock Corp.,

1963) 235 Or 81, 383 P2d 1016.

LAW REVIEW CITATIONS: 41 OLR 224; 1 WLJ 195 -200.

654.005

CASE CITATIONS: Arnold v. Gardiner Hill Tbr. Co., ( 1953)

199 Or 517, 263 P2d 403, M & M Wood Working Co. v. StateInd. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082; Fields

v. Fields, ( 1958) 213 Or 522, 307 P2d 528, 326 P2d 451; Mea-

kins v. Olson, ( 1966) 244 Or 108, 416 P2d 5.

ATTY. GEN. OPINIONS: Effect of rules and regulations of

board, 1952 -54, p 71.


654.010

NOTES OF DECISIONS

This section in general enjoins upon an employer the

same duties that were required by the common law. Sheltonv. Paris, ( 1953) 199 Or 365, 261 P2d 856; Ritters v. Beals,

1961) 225 Or 504, 358 P2d 1080; O' Neal v. Meier & Frank

Co., ( 1961) 226 Or 108, 359 P2d 101; Concannon v. Ore. Portland Cement Co., ( 1968) 252 Or 1, 447 P2d 290.

The effect of this statute is to withdraw the defense ofassumption of risk. Ritters v. Beals, ( 1961) 225 Or 504, 358P2d 1080; O' Neal v. Meier & Frank Co., ( 1961) 226 Or 108,

359 P2d 101; Richardson v. Harris, ( 1964) 238 Or 474, 395P2d 435.

Domestic help is not within the scope of this section. Ritters v. Beals, ( 1961) 225 Or 504, 358 P2d 1080.

This Act was not intended to place civil liability on aforeman. Kemp v. Utah Constr. and Min. Co., ( 1963) 225

F Supp 250. The Safety Codes are applicable to farm employment.

Quick v. Andresen, ( 1964) 238 Or 433, 395 P2d 154.

A person hiring a laundress one day a week in a privatehome was not an " employer" within the meaning of thissection. Larson v. Papst, ( 1955) 205 Or 126, 286 P2d 123.

FURTHER CITATIONS: Varley v. Consol. Tbr. Co., ( 1943)

172 Or 157, 139 P2d 584; Miles v. Spokane, Portland &

Seattle Ry., ( 1945) 176 Or 118, 155 P2d 938; Arnold v. Gar- diner Hill Tbr. Co., ( 1953) 199 Or 517, 263 P2d 403; Renner

v. Kinnery, ( 1962) 231 Or 553, 373 P2d 668; Rich v. Tite -KnotPine Mill, ( 1966) 245 Or 185, 421 P2d 370; Kruse v. CoosHead Tbr. Co., ( 1967) 248 Or 294, 432 P2d 1009; Entler v. Hamilton, ( 1971) 258 Or 65, 481 P2d 85.

ATTY. GEN. OPINIONS: Authority of the Labor Commis- sioner to prohibit owner from operating a boiler which isin dangerous condition, 1920 -22, p 572.


654.015

NOTES OF DECISIONS


F Supp 250.

FURTHER CITATIONS: Arnold v. Gardiner Hill Tbr. Co.,

1953) 199 Or 517, 263 P2d 403; Quick v. Andresen, ( 1964)

238 Or 433, 395 P2d 154; Entler v. Hamilton, ( 1971) 258 Or65, 481 P2d 85.

654.020

NOTES OF DECISIONSThe language " no employe shall... fail to do every other

thing reasonably necessary to protect life and safety of suchemployes" is merely a statutory declaration of common law. Kemp v. Utah Constr. and Min. Co., (1963) 225 F Supp 250.

654.025

NOTES OF DECISIONS

The violation of a duly established rule or regulationpromulgated by the commission constitutes negligence perse. Arnold v. Gardiner Hill Tbr. Co., ( 1953) 199 Or 517, 263

P2d 403; Fields v. Fields, ( 1958) 213 Or 522, 307 P2d 528,

326 P2d 451.

These provisions imply that the commission has the rightand duty to inspect. M & M Wood Working Co. v. StateInd. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082.

626

SUPERSEDED

CJ Domestic help is outside of the Safety Act. Ritter v. Beals, 1961) 225 Or 504, 358 P2d 1080.

The safety codes promulgated under this section are notapplicable to persons other than employes. Rich v. Tite-

Knot Pine Mill, (1866) 245 Or 185, 421 P2d 370.

The Basic Safety Code is not intended to change the basisof the liability of an employer from negligence to absoluteliability. Entler v. Hamilton, ( 1971) 258 Or 65, 481 P2d 85.

Safety code not applicable to laundress employed one daya week in private home. Larson v. Papst, ( 1955) 205 Or 126,

286 P2d 123.

ATTY. GEN. OPINIONS: Authority to issue monthly bulle- tin of rules and regulations, 1920 -22, p 375.

654.030

CASE CITATIONS: Arnold v. Gardiner Hill Tbr. Co., ( 1953)

199 Or 517, 263 P2d 403.

654.035

NOTES OF DECISIONS

The violation of a duly established rule or regulationpromulgated by the commission constitutes negligence perse. Arnold v. Gardiner Hill Tbr. Co., ( 1953) 199 Or 517, 263

P2d 403; Snyder v. Prairie Logging Co., ( 1956) 207 Or 572,

298 P2d 180; Blaine v. Ross Lbr. Co., ( 1960) 224 Or 227, 355

P2d 461; Downey v. Traveler's Inn, ( 1966) 243 Or 206, 412P2d 359.

The commission is not authorized by this section to makean employer an insurer. Shelton v. Paris, ( 1953) 199 Or 365, 261 P2d 856.

These provisions imply the right and duty to inspect. MM Wood Working Co. v. State Ind. Acc. Comm., ( 1954)

201 Or 603, 271 P2d 1082.

Violation by employer of a rule cannot be taken advantage of by a plaintiff who was not within the class ofpersons sought to be protected by the rule and where theaccident which occurred was not of the type sought to be

prevented. Snyder v. Prairie Logging Co., ( 1956) 207 Or 572,

298 P2d 180.


F Supp 250. Safety code not applicable to laundress employed one day

a week in private home. Larson v. Papst, ( 1955) 205 Or 126, 286 P2d 123.

The causal relationship between violation of the basicsafety code and the injury was a jury question. Richardsonv. Harris, ( 1964) 238 Or 474, 395 P2d 435.

FURTHER CITATIONS: Baldassarre v. W. Ore. Lbr. Co.,

1952) 193 Or 556, 239 P2d 839; Wilson v. Hanley, ( 1960) 224 Or 570, 356 P2d 556; Davis v. Weyerhaeuser Co., ( 1962)

231 Or 596, 373 P2d 985; Kinney v. So. Pac. Co., ( 1962) 232

Or 322, 375 P2d 418; Quick v. Andresen, ( 1964) 238 Or 433,

395 P2d 154; Mock v. Georgia -Pac. Corp., ( 1968) 252 Or 116,

446 P2d 125; Robbins v. Steve Wilson Co., ( 1970) 255 Or

4, 463 P2d 585.

654040

NOTES OF DECISIONS


201 Or 603, 271 P2d 1082.

ATTY. GEN. OPINIONS: Need of hearing on revision ofsawmill and woodworking code, 1938 -40, p 517.

654.095

654.045

NOTES OF DECISIONS


201 Or 603, 271 P2d 1082.

654.047

ATTY. GEN. OPINIONS: Statute as applicable to school

district shop, 1924 -26, p 604; board as replacing State Indus- trial Accident Commission in areas of general administra-

tion and policy, 1966 -68, p 610.


654.050

NOTES OF DECISIONS


201 Or 603, 271 P2d 1082.


F Supp 250.

ATTY. GEN. OPINIONS: Penalties as taxes, 1964 -66, p 141.

654.060

NOTES OF DECISIONS


F Supp 250. Safety code not applicable to laundress employed one day

a week in private home. Larson v. Papst, ( 1955) 205 Or 126,

286 P2d 123.

CASE CITATIONS: White v. State Ind. Acc. Comm., ( 1940)

163 Or 476, 96 P2d 772,

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