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SUPERSEDED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 rulemaking 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; rulemaking 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 investigate 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 investigate 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 safeguard 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; consolidation 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 precisely 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 statuteis 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 becoming 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; rulemaking 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 portions 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 guaranteeing 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 successive 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 acquires 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 acquires 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 unofficial 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 questioned 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, entitling 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 administer 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.


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.


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.,


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 deception 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 investigate 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 practical 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


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; rulemaking 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; rulemaking 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; rulemaking 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; rulemaking 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 affixed. 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.


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, 98 P2d 955.

654.085

NOTES OF DECISIONS

The legislature intended safety codes to be standards ofcare. Lovins v. Jackson, ( 1963) 233 Or 369, 378 P2d 727.

FURTHER CITATIONS: Varley v. Consol. Tbr. Co., ( 1943)

172 Or 157, 139 P2d 584; Shelton v. Paris, ( 1953) 199 Or 365, 261 P2d 856.

654.090

ATTY. GEN. OPINIONS: Board as replacing State IndustrialAccident Commission in areas of general administration

and policy, 1966 -68, p 610.

654093


654.095

CASE CITATIONS: M & M Wood Working Co. v. StateInd. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082.

ATTY. GEN. OPINIONS: Penalties as taxes, 1964 -66, p 141; validity of transfer of funds, 1964 -66, p 205.


627

SUPERSEDED

654. 155

654. 155

CASE CITATIONS: M & M Wood Working Co. Z. StateInd. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082.

654.305

NOTES OF DECISIONS

The Employers' Liability Act ( ORS 654.305 to 654.335 and654.990( 5)) As a Whole

1. In general -

2. Construction and effect of Act generally3. Application of Act generally4. Other statutes

5. Employers and employes within Act1) Maritime

2) Interstate commerce

3) Counties and municipal corporations as subject to Act

by ORS 30.3206. Relations of parties as affecting duties and liability

1) Generally2) Employer to his employe

3) Employer to another's employe

4) Owner to employe of independent contractor

5) General contractor to employe of independent contractor

6) Person in charge

7) Member of public7. Scope of employment8. Duties and care required of employer

1) Generally2) Safe place to work

3) Selecting and inspecting materials, etc. 4) Scaffolding and other temporary structure5) Machinery6) Guards

7) Openings

8) Electricity9) Devices and precautions

9. Breach of duty by employer10. Proximate cause

11. Assumption of risk by employe12. Actions

1) Generally2) Pleading3) Evidence

4) Questions for court and jury5) Instructions

ORS 654.305 In Particular

13. In general

14. Member of public

15. Person in charge

16. Work involving risk or danger1) Generally2) Determining if risk or danger involved3) Particular employments

a) Rule

b) Employments involving risk or dangerc) Employments not involving risk or danger as a

matter of law

See also cases under ORS 654.310 to 654. 335 and 654.9903).

THE EMPLOYERS' LUIBILITY ACT AS A WHOLE

1. In general

The acceptance of partial compensation from the Indus-

trial Accident Commission was not an election of remedy

so as to preclude a subsequent action against the one caus-

ing the injuries. Hicks v. Peninsula Lbr. Co., ( 1923) 109 Or

305, 220 P 133; Coomer v. Supple Inv. Co., ( 1929) 128 Or

224, 274 P 302.

The intent of the Act, is to give the injured employe a

remedy against his employer. Lawton v. Morgan, FliednerBoyce, ( 1913) 66 Or 292, 131 P 314, 134 P 1037.

This Act is a modified form of the common -law remedy, whereby an employe is permitted to recover from an employer damages for a personal injury caused by the latter'snegligence. Olds v. Olds, ( 1918) 88 Or 209, 171 P 1046.

This Act is both remedial and preventive. ( see diagram

in this case) Camezind v. Freeland Furniture Co., ( 1918)

89 Or 158, 174 P 139.

In order to recover under this Act, it is necessary to showthat the defendant was engaged in the kind of work em-

braced within the terms of the statute, that the plaintiff

was defendant' s employe acting within the scope of hisemployment, that the terms of his employment contemplat-

ed performance by the plaintiff of work involving risk anddanger, and that the proximate cause of the plaintiffs inju-

ry was one included within the terms of the statute. Fitz- gerald v. Ore. -Wash. R. & Nay. Co., ( 1932) 141 Or 1, 16

P2d 27.

ORS 654. 330 does not extend the scope of ORS 654.305

and 654.310 but merely defines the conditions under whichthe common -law defenses shall not be available. Williams

v. Clement' s Forest Prod., Inc., ( 1950) 188 Or 572, 216 P2d

241, 217 P2d 252.

No new liability, over and above the liability imposed ona master at common law, is created by this law althoughit does increase the employer's burden. Shelton v. Paris,

1953) 199 Or 365, 261 P2d 856.

Action by longshoreman' s widow under this Act was notremovable to Oregon federal district court under federal

removal statute. Eriksen v. Moore Mill and Lbr. Co., ( 1958)

157 F Supp 888.

2. Construction and effect of Act generallyA liberal construction is to be given this Act. Blair v.

W. Cedar Co., ( 1915) 75 Or 276, 280, 146 P 480; Dickerson

v. E. & W. Lbr. Co., ( 1916) 79 Or 281, 155 P 175; Smith

v. Shevlin -Nixon Co., ( 1946) 157 F2d 51.

While not strictly construed, this statute is not to beextended by implication. McClaugherty v. Rogue RiverElec. Co., ( 1914) 73 Or 135, 140 P 64, 144 P 569.

The common -law doctrines of assumption of risk, negli-

gence of fellow servants, and contributory negligence donot apply in actions for injuries to a servant within thislaw. Union Oil Co. v. Hunt, ( 1940) 111 F2d 269.

3. Application of Act generallyThis Act applies only to employments which involve a

risk or danger, and are inherently dangerous. It compre- hends hazardous occupations in general, specifically enumerated or otherwise. Union Oil Co. v. Hunt, ( 1940) 111F2d 269.

This Act extends its protection only to ( 1) employmentswhich are attended with inherent risks and dangers, and

2) employments which are rendered hazardous through the

use of machinery, scaffolding, dangerous substances, electrical devices or other equipment and substances expresslyenumerated in the Act. Duties and employments attended

only with ordinary risks and dangers are unaffected by theAct. Barker v. Portland Traction Co., ( 1946) 180 Or 586, 173

P2d 288, 178 P2d 706.

This Act does not apply to an action by an employeagainst his employer for an assault and battery by a fellowemploye. Kelley v. Ore. Shipbuilding Corp., ( 1948) 183 Or

1, 189 P2d 105.

This_ law is not applicable to workmen on navigable

628

SUPERSEDED

waters within the territorial limits of Oregon. Sanderson

v. Sause Bros. Ocean Towing Co., ( 1953) 114 F Supp 849. Before a person other than the employer can be liable

under this law it is necessary that such person have directand primary control over the instrumentalities causing theinjuries or death. Myers v. Staub, ( 1954) 201 Or 663, 272

P2d 203.

Subsection ( 2) of ORS 656.804 exempted rejecting employers from the Act if the action arose out of occupational

disease. Concannon v. Ore. Portland Cement Co., ( 1968) 252

Or 1, 447 P2d 290.

This Act applies to the Federal Government when thenegligence of employes of the United States cause deaths.

Binney v. United States, ( 1971) 329 F Supp 351. A practical nurse - housekeeper was not covered. Ritter

v. Beals, ( 1961) 225 Or 504, 358 P2d 1080.

4. Other statutes

The labor commissioner' s certificate of conformity to the

Factory Inspection Act was prima facie evidence in anaction under ORS 654.305 and 654.310, of performance of

the master's duties to the extent required by that Act. Kuntzv. Emerson Hardwood Co., ( 1919) 93 Or 565, 184 P 253.

Provisions of Workmen' s Compensation Act classifyingfoundries, blast furnaces, and smelters as hazardous occu-

pations are procedural rules to guide the State Industrial

Accident Commission [ now Workmen' s CompensationBoard] and not amendments of ORS 654.305 and 654.310

permitting withholding from the jury the question ofwhether the loading of an electric furnace involved risk orinjury. Hale v. Elec. Steel Foundry Co., ( 1948) 183 Or 275,

191 P2d 257.

Violation of a mandatory rule and regulation of the Safe- ty Code constitutes negligence per se in action broughtunder this Act. Arnold v. Gardiner Hill Tbr. Co., ( 1953) 199

Or 517, 263 P2d 403.

5. Employers and employes within Act

1) Maritime. A tort though committed on shipboard

within the navigable waters of the state may be remediedunder this statute in the state court, or in the federal courts

where there is a diversity of citizenship, and a remedy mightalso be had in a court of admiralty. Keithley v. North Pac. S. S. Co., ( 1916) 232 Fed 255.

Right of action for wrongful death created by Employer' sLiability Law may be invoked to recover for a maritimedeath occurring on the state' s territorial waters withoutconstitutional inhibition. Hess v. United States, ( 1959) 361

US 314, 80 S Ct 341, 4 L Ed 2d 305, rev'g 259 F2d 285. Where a stevedore was injured by the vessel' s hoisting

appliances, this Act applies to an action against the vessel.

The Bee, ( 1914) 216 Fed 709.

An injury occurring on a dock was not within the admiralty jurisdiction, but rather under this statute, especiallyas the plaintiff was not suing on his maritime contract buton the ground of the negligence of the defendant. Swayne

Hoyt v. Barsch, ( 1915) 226' Fed 581, 141 CCA 337.

2) Interstate commerce. An injury sustained by one whileengaged in interstate commerce cannot be the basis of

recovery under this Act. Donaghy v. Ore. -Wash. R. & Nay.

Co., ( 1930) 133 Or 663, 288 P 1003, 291 P 1017. Where tracks used for interstate and intrastate commerce

were maintained by a crane, which crane while being re- paired by a machinist' s helper during a period of 42 days, caused his injury, he was not injured in interstate commerceso as to preclude the application of this Act. Id.

3) Counties and municipal corporations as subject to Act

by ORS 30.320. A county employe cannot bring an actionunder this statute for personal injuries sustained while an

employe of the county, as the action is one of tort. Rappv. Multnomah County, ( 1915) 77 Or 607, 152 P 243; Clarkv. Coos County, ( 1916) 82 Or 402, 404, 161 P 702.

654.305

A municipal corporation is subject to the provisions of

this Act. Mackay v. Comm. of Port of Toledo, ( 1915) 77Or 611, 152 P 250; Asher v. Portland, ( 1930) 133 Or 41, 284

P 586.

A quasi corporation, such as a school district, when per-

forming a purely ministerial act, is under certain conditionsliable under this Act for injuries to a laborer while paintingits structure. Lupke v. Sch. Dist. 1, ( 1929) 130 Or 409, 275

P 686.

An officer of a city is not within the purview of this Act. Asher v. Portland, ( 1930) 133 Or 41, 284 P 586.

The name by which a person is called does not determineif he is an employe or an officer within this Act; his status

is determined by the duties he is required to perform. Id. That an oath must be taken by a lineman employed by

a city fire department does not make him an officer of thecity, instead of an employe within this Act. Id.

The immunity of a municipal corporation from liabilityfor negligence of officers and employes in performing governmental functions was not abolished by this Act. Woldv. Portland, ( 1941) 166 Or 455, 112 P2d 469.

A lineman attached to a city fire department, while engaged with others under direction of a foreman in removingtelephone poles with fire alarm service wires attached,

constituting an obstruction to a bridge approach in whichthe city was interested, was an employe and not an officerwithin this Act. Asher v. Portland, ( 1930) 133 Or 41, 284

P 586.

6. Relations of parties as affecting duties and liability1) Generally. The assumption by an employe of the

responsibility under this Act does not absolve the employer. Moen v. Aitken, ( 1928) 127 Or 246, 271 P 730; Hollopeter

v. Palm, ( 1930) 134 Or 546, 291 P 380, 294 P 1056.

The employer alone is liable under this statute; no suit

is authorized against a negligent employe. Gray v. Ham- mond Lbr. Co., ( 1925) 113 Or 570, 232 P 637, 233 P 561, 234

P 261.

Although the protection of this Act is not confined onlyto employes of the defendant, the injured person must be

an employe of someone engaged in the enterprise out of

which the injury arose. Johnson Lbr. Corp. v. Hutchens, 1952) 194 F2d 574.

Although the protection of this Act is not confined onlyto employes of the defendant, the injured person must bean employe of someone engaged in the enterprise out of

which the injury arose. Pehrson v. Lauch Const. Co., ( 1956)

237 F2d 269, 273.

Manufacturer was not liable to employe of the machine's .

owner. Richey v. Sumoge, ( 1967) 273 F Supp 904. Failure of a tree faller to perform his duty of rendering

the operation safe barred his estate from recovery for deathresulting from such failure. Robbins v. Irwin, ( 1947) 180 Or667, 178 P2d 935.

2) Employer to his employe. Every detail of an employe'swork is not required to be supervised by the employer underthis Act. Van Norden v. Chas. R. McCormick Lbr. Co.,

1927) 17 172d 568.

That plaintiff is defendant's employe acting within thescope of his employment must be shown to recover under

this Act. Fitzgerald v. Ore. -Wash. R. & Nay. Co., ( 1932)

141 Or 1, 16 P2d 27.

The word " employe" must be considered in its ordinarymeaning as one rendering service for wages or salary. Jythav. Chamberlain, ( 1942) 168 Or 171, 121 P2d 928.

Where, while going away from a logging camp closedfor the season, a logger froze his feet, the injury was notwithin this Act as he was no longer an employe. Brady v. Ore. Lbr. Co., ( 1926) 117 Or 188, 243 P 96, 45 ALR 812.

Deceased was not an employe where he was merely doinga good turn without expectation of reward when he was

crushed between defendant' s car and another while untying

629

SUPERSEDED

654. 305

a tow rope. Jylha v. Chamberlain, ( 1942) 168 Or 171, 121

P2d 928.

3) Employer to another's employe. Where the duties ofan employe of another employer brings him within reach

of dangers, he must be protected by the employer havingcharge of the danger. Cauldwell v. Bingham & Shelley Co., 1917) 84 Or 257, 155 P 190, 163 P 827; Rorvik v. No. Pac.

Lbr. Co., ( 1921) 99 Or 58, 190 P 331, 195 P 163; McKay v. Pac. Bldg. Materials Co., ( 1937) 156 Or 578, 68 P2d 127;

Pacific States Lbr. Co. v. Bargar, (1926) 10 F2d 335.

Having charge of or responsibility for any work involving risk or danger" involves more than an economic interestin the completion of a project. Browning v. Terminal iceCo., ( 1961) 227 Or 36, 360 P2d 630.

The liability of defendant to the employes of another restson the duty to safeguard and use structures and equipmentunder their control so as not to create or maintain a haz-

ardous situation which may be the proximate cause of aninjury. Id.

A captain injured, while standing on a wharf where hisduties required him to be, through the negligence of em-

ployes of a lumber company, was within the protection ofthis Act. Rorvik v. No. Pac. Lbr. Co., ( 1921) 99 Or 58, 190

P 331, 195 P 163.

Where a laborer, under the control of the captain, was

injured while loading lumber on a ship after it had beenpiled on a dock by a lumber company, the provisions ofthis Act did not apply to the lumber company. McCauleyv. Steamship " Willamette," ( 1923) 109 Or 131, 215 P 892.

A lumber company was required to exercise care requiredby this Act toward employe of stevedoring company. PacificStates Lbr. Co. v. Bargar, ( 1926) 10 F2d 335.

An employe of a customer of the defendant injured while

lawfully using defendant' s appliances was protected by thisAct. Coomer v. Supple Investment Co., ( 1929) 128 Or 224,

274 P 302.

A company furnishing and delivering concrete to a construction contractor was required to take the statutoryprecautions necessary for the protection of the contractor' semployes. McKay v. Pac. Bldg. Materials Co., ( 1937) 156

Or 578, 68 P2d 127.

Control by defendants of the premises upon which plaintiff was injured was sufficient control over the work plain-

tiff was performing to bring defendants within the purviewof the Act. Metcalf v. Roessel, ( 1970) 255 Or 186, 465 P2d699.

4) Owner to employe of independent contractor. The test

of whether a person is a servant or a contractor is not the

manner of their receiving compensation. Cauldwell v. Bing- ham & Shelley Co., ( 1917) 84 Or. 257, 155 P 190, 163 P 827.

Where the contractor controls the details of the work,

he alone is responsible for an injury to an employe, underthis Act. Warner v. Synnes, ( 1925) 114 Or 451, 230 P 362, 235 P 305, 44 ALR 904.

An owners right to inspect the contractor' s work as it

progresses does not create the relation of master and ser-

vant between the owner and the contractor's employes. Id.

One employed to remove garbage from premises and

using his own garbage truck in performance of task, wasan " independent contractor and not protected by this Act. Helzer v. Wax, ( 1928) 127 Or 427, 272 P 556.

There was neither the retention nor the exercise of con-

trol by the owner sufficient to impress upon defendant -owner the duties imposed by the Act. Wilson v. Port- land Gen. Elec. Co., ( 1968) 252 Or 385, 448 P2d 562.

5) General contractor to employe of independent contractor. A general contractor is not liable to a servant of

an independent contractor for injuries caused by the negligence of such independent contractor. Lawton v. Morgan, Fliedner & Boyce, ( 1913) 66 Or 292, 131 P 314, 134 P 1037; Tamm v. Sauset, ( 1913) 67 Or 292, 135 P 868, LRA 1917D,

988.

6) Person in charge. Failure to perform the duty assignedto him to repair a machine or render an operation safe bars

any action by such foreman or other employe against hisemployer when he is injured through a defect resulting fromsuch failure. Schmidt v. Multnomah Operating Co., ( 1936)

155 Or 53, 61 P2d 95; Marks v. Bauers, ( 1925) 3 172d 516. The fact that an employe obeys a foreman' s negligent

order, does not preclude him from recovery under this Act. Peluck v. Pac. Machine & Blacksmith Co., ( 1930) 134 Or171, 293P417.

A foreman of a railroad switching crew cannot recoverfor injuries sustained because of a defective clearance made

by such crew. Straub v. Ore. Elect. Ry. Co., ( 1939) 163 Or

93, 94 P2d 681.

It is necessary to an affirmative defense under ORS654.315 to show plaintiff was charged with obedience to

the Basic Safety Code, and that his violation was the proximate cause of his injury. Skeeters v. Skeeters, ( 1964) 237Or 204, 389 P2d 313, 391 P2d 386.

7) Member of public. Where the decedent is shown to

be an employe of no employer at the time of his death bycoming into contact with an electric wire, no action willlie under this statute. Saylor v. Enterprise Elec. Co., ( 1923)

106 Or 421, 212 P 477.

7. Scope of employment

The scope of a servant' s duties is defined by what hewas employed to perform, and actually did perform withknowledge and approval of employer. Walters v. DockComm., ( 1928) 126 Or 487, 245 P 1117, 266 P 634, 270 P 778.

Active engagement in his work by an employe is notrequired in order to be within the protection of this statute. Fitzgerald v. Ore.-Wash. R. & Nay. Co., ( 1932) 141 Or 1,

16 P2d 27.

Recovery is dependent upon allegation and proof thatthe employe, when injured, was acting within the scopeof his employment. Union Oil Co. v. Hunt, ( 1940) 111 F2d269.

A servant living and working in his master's barn wasjustified in using the facilities at hand, and if his injurywas chargeable in part to the master's violation of ORS

654.305 and 654.310, the master is liable. Malloy v. Mar- shall -Wells Hdw. Co., ( 1918) 90 Or 303, 173 P 267, 175 P

659, 176 P 589.

Although injured after the hour when his duties usuallyended, an action of a janitor was maintainable where he

was acting in furtherance of his master's employment atthe time of the injury. Poole v. Tilford, ( 1921) 99 Or 585, 195 P 1114.

Duties and care required of employer

I) Generally. A higher degree than ordinary care is required of an employer under this Act. Stanfield v. Fletcher,

1925) 114 Or 531, 236 P 258; Coomer v. Supple Inv. Co.,

1929) 128 Or 224, 274 P 302; Fromme v. Lang & Co., ( 1929)

131 Or 501, 281 P 120; Hoffman v. Broadway Hazelwood, 1932) 139 Or 519, 10 P2d 349, 11 P2d 814, 83 ALR 1008.

The character of proof necessary to establish negligenceon the part of the employer is changed by this statute fromthat required under the common law. Schulte v. Pac. PaperCo., ( 1913) 67 Or 334, 135 P 527, 136 P 5.

The standard of care used by others will not satisfy thestatute. Poole v. Tilford, ( 1921) 99 Or 585, 195 P 1114.

Directing or permitting work beyond the physical capacity of an employe, when it was the only work available, did not render an employer liable. Ferretti v. So. Pac. Co.,

1936) 154 Or 97, 57 P2d 1280.

The care required of the employer is commensurate withthe degree of danger in the nature of the employment.

Union Oil Co. v. Hunt, (1940) 111 F2d 269.

The test of practicality laid down by this statute isspecific enough to satisfy the requirement of due process.

630

SUPERSEDED

Mallatt v. Ostrander Ry. & Tbr. Co., ( 1942) 46 F Supp 250. In an action for wrongful death in state territorial waters

the conduct said to give rise to liability is to be measurednot under admiralty's standards of duty, but under thesubstantive standards of the state law. Hess v. UnitedStates, ( 1959) 361 US 314, 80 S Ct 341, 4 L Ed 2d 305.

This Act does not contemplate merely that machineryshall conform to standards of safety if used in a particularway, but that it shall be safe for all uses to which it iscustomarily put. Blaine v. Ross Lbr. Co., ( 1960) 224 Or 227,

355 P2d 461.

The statute does not impose upon an employer the role

of an insurer of the safety of his workmen in the absenceof some showing of negligence. Norman v. CunninghamSheep Co., ( 1963) 233 Or 385, 377 P2d 916.

2) Safe place to work. Maintenance of a safe plant, as

well as the inauguration thereof, is a duty of an employer. Dickerson v. E. & W. Lbr. Co., ( 1916) 79 Or 281, 155 P 175.

Although a master is a merchant, in so far as he operates

machinery he comes within ORS 654.305 and 654.310, notwithstanding the fact that dangerous places are used only10 or 12 times during a year. Malloy v. Marshall -Wells Hdw. Co., ( 1918) 90 Or 303, 173 P 267, 175 P 659, 176 P 589.

Where a woman was employed to cook in a tent near

blasting operations, it was the duty of the employer to seethat she had a safe place to work. Crown Willamette Paper

Co. v. Newport, (1919) 171 CCA 146, 260 Fed 110.

Where a key on a fly -wheel caught clothing of the plaintiff employe when he was making an adjustment, the evidence warranted a finding of negligence of the employerunder this Act. Hornig v. Canby, ( 1920) 95 Or 612, 188 P700.

A sawmill operator did not violate this law. Arnold v.

Gardiner Hill Tbr. Co., ( 1953) 199 Or 517, 263 P2d 403.

3) Selecting and inspecting materials, etc. The masteris bound to select and inspect his appliances, and the ser-

vant is relieved of the burden of showing that the masterhad notice of the defects. Askatin v. McInnis & Reed Co.,

1913) 67 Or 320, 135 P 322.

Where an animal is used in work, the employer is required

to furnish a safe animal, the same as any other instrumentality for performing the labor. Marks v. ColumbiaCounty Lbr. Co., (1915) 77 Or 22, 149 P 1041, Ann Cas 1917A, 306.

Where the ropes used by his servant were not inspectedby the master, he was guilty of negligence, as a matter oflaw. Askatin v. McInnis & Reed Co., ( 1913) 67 Or 320, 135

P 322.

Where a contractor's employe selected a rope without

the owner's consent, and was injured in using it, the ownerwas not liable, under this Act, although he had agreed tofurnish the contractor with materials. Warner v. Synnes,

1925) 114 Or 451, 230 P 362, 235 P 305, 44 ALR 904.

4) Scaffolding and other temporary structure. That acontract with a city does not require that the contractorprovide a safety rail does not relieve the contractor if sucha rail is required by this statute. Wolsiffer v. Bechill, ( 1915) 76 Or 516, 146 P 513, 149 P 533.

If injured longshoremen working on a dock come withinthe protection of this Act, they must do it under the " andgenerally" clause, not that relating to a structure morethan 20 feet from the ground. McCauley v. Steamship " Wil- lamette," ( 1923) 109 Or 131, 215 P 892.

A spur track on a trestle more than 20 feet from theground, which, though built as a railroad, had been used

only as a means of erecting a power house, was pro hacvice a scaffolding within ORS 654.305 and 654.310. Evansv. Portland Ry., Light & Power Co., ( 1913) 66 Or 603, 135

P 206.

5) Machinery. This Act is applicable to " machinery." Aslab haul ( consisting of a staging, incorporated with which

631

654.305

was a system of dead rolls for conveying slabs in a sawmill), Dunn v. Orchard Land Co., ( 1913) 68 Or 97, 136 P 872; a

block and tackle (used to hoist things through a hatchway), Malloy v. Marshall -Wells Hdw. Co., ( 1918) 90 Or 303, 173

P 267, 175 P 659, 176 P 589; an elevator, Thompson v. Union

Fishermen' s Co -op. Packing Co., ( 1926) 118 Or 436, 235 P

694, 246 P 733; Chatfield v. Zeller, (1944) 174 Or 59, 147 P2d

222; a swinging cargo hook, Grammer v. Wiggins -MeyerS.S. Co., ( 1928) 126 Or 694, 270 P 759; a spray rig, Fieldsv. Fields, ( 1958) 213 Or 522, 307 P2d 528, 326 P2d 451.

Everything which can be called machinery is not as amatter of law " dangerous." Williams v. Clemen' s Forest

Prod., Inc., ( 1950) 188 Or 572, 216 P2d 241, 217 P2d 252. Where a head sawyer failed to observe a signal from the

plaintiff and allowed a log to roll against the plaintiffshand, an action for the resulting injuries fell within thisAct. Browning v. Smiley- Lampert Lbr. Co., ( 1914) 68 Or 502, 137 P 777.

Where plaintiff, a stevedore, was hurt in doing workwhich involved the use of machinery, his cause of actioncame within this Act. Kveset v. W. R. Grace & Co., ( 1915)

77 Or 83, 150 P 281.

6) Guards. Not only must the employer provide a guard, but he must see to it that it is used. Camenzind v. FreelandFurniture Co., ( 1918) 89 Or 158, 174 P 139.

That there are no guards on the market does not of itself

relieve an employer from guarding a dangerous machine. Id.

The rule requiring guards is to provide protection fromall dangers reasonably foreseeable. Skeeters v. Skeeters, 1964) 237 Or 204, 389 P2d 313, 391 P2d 386.

It was a question of fact whether a protective device

which would have prevented plaintiffs injury could havebeen installed without impairing the machine's efficiency. Ludwig v. Zidell, ( 1941) 167 Or 488, 118 P2d 1073.

7) Openings. " Shafts," as used in the statute, contem-

plates openings in the ground or in structures, and not

revolving shafts in machinery. Franklin v. Webber, ( 1919) 93 Or 151, 182 P 819.

Regardless of how a brick came to fall, the contractor

was liable where he failed to provide a temporary floor toprotect persons working below. Morgan v. Bross, ( 1913) 64Or 63, 129 P 118.

That one party engaged in construction did not desireto have a permanent floor constructed until later did notgive the other a license to neglect to fulfill the requirements

of the statute. Cauldwell v. Bingham & Shelley Co., ( 1917)

84 Or 257, 155 P 190, 163 P 827.

That a staging was an inclosure within the meaning ofthis statute, could not be stated as a matter of law. Id.

8) Electricity. Where control of a switch can be exercisedby an electric company although it does not own the switch, it is liable under this Act if the switch was defective. Clay- ton v. Enterprise Elec. Co., ( 1916) 82 Or 149, 161 P 411.

The furnishing of switches at some distance from a pointwhere work is required to be done, by which the currentmay be turned off entirely, did not exculpate an electricalcompany from negligence in failing to comply with thespecific requirements of ORS 654.305 and 654.310. Mc-

Claugherty v. Rogue River Elec. Co., ( 1914) 73 Or 135, 140P 64, 144 P 569.

Where, while repairing electric wires, an injury occurred, the case was clearly within this statute. Hoag v. Wash. -Ore. Corp., ( 1915) 75 Or 588, 144 P 574, 147 P 756.

Insulation on a wire, properly attached to poles, at a point30 feet from a pole was not required by ORS 654. 305 and654.310. Turnidge v. Thompson, ( 1918) 89 Or 637, 175 P 281.

9) Devices and precautions. Substitutes for safety appliances not within the substantial specification of this Act

do not take the place of devices specifically named; norwill devices required by a city ordinance serve as a substitute. Harvey v. Corbett, ( 1915) 77 Or 51, 55, 56, 150 P 263.

SUPERSEDED

654.305

Customary usage in the trade is not necessarily a conclusive test of the performance of the duty of using everydevice and precaution which is practicable. Camenzind v.

Freeland Furniture Co., ( 1918) 89 Or 158, 174 P 139.

Every care and precaution practicable to use for thesafety of life and limb of employes and the public mustbe exercised by the employer. Coomer v. Supple Inv. Co., 1929) 128 Or 224, 274 P 302.

The work of driving a team witbout rope or chains withwhich to lock the wheels did not involve risk or danger

as a matter of law. Williams v. Clemen' s Forest Prod., ( 1950)

188 Or 572, 216 132d 241, 217 P2d 252. Overruling Olds v. Olds, ( 1918) 88 Or 209, 171 P 1046.

Before an employer can be charged with negligence in

failing to supply safe tools there must be some evidenceupon which a jury could find ( a) a failure to provide, andb) that the tools furnished were less safe than some other

tools that might have been furnished. Norman v. Cun-

ningham Sheep Co., ( 1963) 233 Or 385, 377 132d 916.

Employer's duty to furnish sufficient manpower to perform a task safely is violated when a workman is requiredto overtax himself in order to perform the task, or otherwise

required to risk injury which could have been preventedby additional help. Id.

Evidence of customary practice is admissible to showwhether the employer acted as a reasonably prudent person. Robbins v. Steve Wilson Co., ( 1970) 255 Or 4, 463 P2d 585.

Where no appliance was provided to remove a belt from

a moving pulley, an employe injured by removing the beltby hand may bring an action under this Act. Wasiljeff v. Hawley Paper Co., ( 1914) 68 Or 487, 137 P 755.

The fact that there was not sufficient room for belt

shifters did not justify their absence, it being the employer'sduty to make sufficient room. Id.

Where plaintiff was required by her foreman and by thelocation of her place of work to jump down three feet toreach said place of work, there was sufficient evidence for

the jury to find that defendant failed to use every devicepracticable and every care and caution for the employes' safety. Shevlin -Hixon Co. v. Smith, ( 1947) 165 F2d 170.

The instruction that it is not necessary for plaintiff toprove that any of the devices which he claimed were notused, were in general use, was proper. Baldassarre v. W.

Ore. Lbr. Co., ( 1952) 193 Or 556, 239 P2d 839.

9. Breach of duty by employerThe duties imposed on the master are nondelegable, ab-

solute and continuing. Camenzind v. Freeland FurnitureCo., ( 1918) 89 Or 158, 174 P 139; Malloy v. Marshall -WellsHdw. Co., ( 1918) 90 Or 303, 173 P 267, 175 P 659, 176 P

589; Warner v. Syrtnes, ( 1925) 114 Or 451, 230 P 362, 235P 305, 44 ALR 904; Hollopeter v. Palm, ( 1930) 134 Or 546,

291 P 380, 294 P 1056.

Transgression of this Act by the employer is negligenceper se and is actionable. Camenzind v. Freeland FurnitureCo., ( 1918) 89 Or 158, 174 P 139; Skeeters v. Skeeters, ( 1964) 237 Or 204, 389 P2d 313, 391 P2d 386.

The servant must show the negligence specified in ORS654.305 and 654.310 and prove facts in addition to the accident inconsistent with the exercise of due care. Gyntherv. Brown & McCabe, ( 1913) 67 Or 310, 134 P 1186.

Acts of omission which constitute " negligence" under the

Act are set out in ORS 654.305 and 654.310. Lang v. CamdenIron Works, ( 1915) 77 Or 137, 146 P. 964.

A breach of duty on the part of the employer must beshown by the plaintiff. Ferretti v. So. Pac. Co., ( 1936) 154

Or 97, 57 P2d 1280.

Violation of commissioner's orders constitutes negligence

per se and may be pleaded in an action under this Act. Blaine v. -Ross Lbr. Co., ( 1960) 224 Or 227, 355 P2d 461.

It is not any random violation of the statutory duty whichwill make the employer liable, but violation by inadequate

performance of a duty which, if properly performed, wouldhave prevented the injury. Skeeters v. Skeeters, ( 1964) 237Or 204, 389 P2d 313, 391 P2d 386.

10. Proximate cause

The rule of proximate cause of an injury is not changedby this statute. Vanderflute v. Portland Ry., Light & Power

Co., ( 1922) 103 Or 398, 205 P 551.

The proximate cause of the plaintiff's injury must be oneincluded within the terms of the statute. Fitzgerald v. Ore. - Wash. R. & Nay. Co., ( 1932) 141 Or 1, 16 P2d 27.

Proximate cause does not mean the last act or nearest

act to the injury, but such act or omission failing to complywith the statute as actually aided in producing the injuryas a direct and existing cause. Ludwig v. Zidell, ( 1941) 167Or 488, 118 P2d 1073.

Whether failure to have a guard over the machineryproximately caused plaintiffs injury was a question for thej ury. Id.

11. Assumption of risk by employeAn absolute duty is imposed upon the employer, the

doctrine of assumption of risk by an employe does not applyto actions for injuries under this Act. Sonniksen v. HoodRiver Gas & Elec. Co., ( 1915) 76 Or 25, 146 P 980; Ramas-

wamy v. Hammond Lbr. Co., ( 1915) 78 Or 407, 152 P 223;

Poole v. Tilford, (1921) 99 Or 585, 195 P 1114; Peluck v. Pac. Machine & Blacksmith Co., ( 1930) 134 Or 171, 293 P 417.

12. Actions

1) Generally. No other notice that the action is broughtunder this Act is required than to allege facts that bringthe case within it. Schulte v. Pac. Paper Co., ( 1913) 67 Or

334, 135 P 527, 136 P 5.

Joinder in a suit in equity against a vessel of an actionunder this Act by an injured employe is not permitted. McCauley v. Steamship " Willamette," ( 1923) 109 Or 131,

215 P 892.

2) Pleading. It is not necessary to allege that an actionis brought under this statute to justify its application wherethe complaint states facts to which the rule'of law embodied

by the statue is applicable. Schulte v. Pac. Paper Co., ( 1913)

67 Or 334, 135 P 527, 138 P 5; Dickerson v. E. & W. Lbr.

Co., ( 1916) 79 Or 281, 155 P 175.

Injury within the scope of employment must be allegedand proved under this Act. Brady v. Ore. Lbr. Co., ( 1926)

118 Or 15, 245 P 732, 45 ALR 821; Walters v. Dock Comm., 1928) 126 Or 487, 245 P 1117, 266 P 634, 270 P 778.

A theory of recovery based on common -law negligenceis not inconsistent with one based on this Act. Rich v. Tite -Knot Pine Mill, ( 1966) 245 Or 185, 421 P2d 370.

An allegation that the defendant was negligent in not

using devices and care, implies that it was practicable todo so. Bottig v. Polsky ( concurring opinion), ( 1921) 101 Or

530, 201 P 188.

The allegation of a specific act of negligence in an action

against an employer does not affect the statutory duty toprotect the machinery to the fullest extent that its properoperation permits. Rorvik v. Astoria Box & Paper Co.,

1931) 136 Or 381, 299 P 333.

Failure to allege that work of decedent involved risk was

not fatal after verdict. Rorvik v. No. Pac. Lbr. Co., ( 1921)

99 Or 58, 190 P 331, 195 P 163.

The complaint was faulty. Skeeters v. Skeeters, ( 1964) 237 Or 204, 391 P2d 386.

3) Evidence. An application for the permit to construct

a building in which the defendant designated himself asbuilder is admissible as evidence of his relationship to theowner. Cauldwell v. Bingham & Shelley Co., ( 1917) 84 Or

257, 155 P 190, 163 P 827.

An injured servant has the burden of proving that itwould have been practicable to have guarded the machine

632

C

SUPERSEDED

in question. Camenzind v. Freeland Furniture Co., ( 1918)

89 Or 158, 174 P 139.

The subsequent installation of a guard on a machine after

the injury complained of may be shown to demonstrate thepracticability of guarding it. Franklin v. Webber, ( 1919) 93Or 151, 182P819.

Under ORS 654.305, proof which shows that subsequent

to injury ( 1) the employer began the use of the instrumentality which the plaintiff alleges would have renderedthe work more safe; ( 2) experience has shown that the

change was practical as a safety measure; and ( 3) use ofthe instrumentality has not hampered efficiency, is admissible evidence of antecedent negligence. Williams v. Port-

land Gen. Elec. Co., ( 1952) 195 Or 597, 247 P2d 494.

Plaintiff is required to show that work in which he wasengaged involved risk or danger to the employe or the

public. Skeeters v. Skeeters, ( 1964) 237 Or 204, 389 P2d 313, 391 P2d 386.

Because of ORS 654.305, the rule that common -law negli-

gence may not be proven by the introduction of evidenceof improvements made subsequent to the injury is notapplicable to a claim under this Act. Rich v. Tite -Knot Pine

Mill, ( 1966) 245 Or 185, 421 132d 370.

Evidence of customary practice is admissible to showwhether the employer acted as a reasonably prudent person. Robbins v. Steve Wilson Co., ( 1970) 255 Or 4, 463 P2d 585.

The fact that a certain guard was used in Switzerlandwas admissible to show that it was practicable to guard

the machine, but not to show that the particular guard usedin Switzerland should be used. Camenzind v. Freeland Fur-

niture Co. ( 1918) 89 Or 158, 174 P 139.

The testimony of a veteran logging employe was competent on the question of practicability of safety device ontrucks used in logging. Garvin v. W. Cooperage Co., ( 1919)

94 Or 487, 184 P 555.

Evidence as to negligence resulting in injury to a stevedore hauling ship was insufficient to go to the jury. VanNorden v. Chas. R. McCormick Lbr. Co., ( 1927) 17 F2d 568.

In the absence of evidence as to the cause of the breakingof a wheel of a machine resulting in an injury to an employe, the employer was not liable and there could be no

imputation of negligence to him. Erickson v. Pac. States

Lbr. Co., ( 1927) 18 F2d 513. Evidence that the device was not in general use is not

admissible in an action based upon this Act. Fromme v.

Lang & Co., ( 1929) 131 Or 501_ 281P 120.

Where an action was submitted on common -law prin-

ciples, evidence tending to show that this Act applied washeld harmless. Hovedsgaard v. Grand Rapids Store Equip. Corp., ( 1931) 138 Or 39, 5 P2d 86.

Any prejudice from evidence to show that employes wereengaged in work within this Act was removed by a subsequent withdrawal accompanied by an admonitory instruction. Hamilton v. Redeman, ( 1939) 163 Or 324, 97 P2d 194.

The employe's belief as to danger was immaterial exceptin so far as it was some evidence as to whether a reasonable

man would have done no more than the employer did.

Lynch v. Ore. Lbr. Co., ( 1939) 108 F2d 283.

Where plaintiff alleged employer should have installeda safeguard, burden was on plaintiff to indicate what safe-

guard, show that it would have prevented the accident, and

also prove the practicality of the device. Cox v. SanitariumCo., ( 1947) 181 Or 572, 184 P2d 386.

Installation of guard after the accident was admissible

to show the practicability of such installation. Fields v. Fields, ( 1958) 213 Or 522, 307 P2d 528, 326 P2d 451.

4) Questions for court and jury. Whether this Act orcommon -law principles govern an action is a question for

the court, and submission to the jury of such question iserror. Schulte v. Pac. Paper Co., ( 1913) 67 Or 334, 135 P

527, 136 P 5; Hoag v. Wash. -Ore. Corp., ( 1915) 75 Or 588,

144 P 574, 147 P 756.

654.305

The following were questions for the jury. Practicabilityof a safety rail around a pit, Wolsiffer v. Bechill, ( 1915) 76 Or 516, 146 P 513, 149 P 533; sufficiency of a scaffold, Moen v. Aitken, (1928) 127 Or 246, 271 P 730; whether addi-

tional care could have been taken without materially destroying the usefulness of the appliances in use, Coomer v. Supple Inv. Co., ( 1929) 128 Or 224, 274 P 302; negligence

in improperly suspending rolls of a gangedger, Ore. -Amer. Lbr. Co. v. Simpson, ( 1925) 8 F2d 946; employment status

of deceased, Johnson Lbr. Corp. v. Hutchens, ( 1952) 194

F2d 574; if the employer' s orders to violate the safety code

had a causal bearing on plaintiffs injury, Wilson v. Hanley, 1960) 224 Or 570, 356 P2d 556; if an employe was In charge

of a particular machine, Skeeters v. Skeeters, ( 1964) 237 Or

204, 389 P2d 313, 391 P2d 386; whether the activity in whichemploye was engaged involved risk or danger, Skeeters v.

Skeeters, ( 1964) 237 Or 204, 389 P2d 313, 391 P2d 386; Quickv. Andresen, ( 1964) 238 Or 433, 395 P2d 154.

There was no error in submitting the case to the juryon the theory that the Employers' Liability Law mightapply. Richardson v. Hams, ( 1964) 238 Or 474, 395 P2d 435.

5) Instructions. Where both common -law grounds andgrounds under this Act are included in one action, the

instructions should distinguish between the grounds.

Schulte v. Pac. Paper Co., ( 1913) 67 Or 334, 135 P 527, 136

P5.

The exact language of ORS 654.305 may be used in instructing the jury in an action under this Act. Hoag v. Wash.-Ore. Corp., ( 1915) 75 Or 588, 144 P 574, 147. P 756.

The nature, extent and' limits of rights accorded by thestatute may properly be declared to the jury by the court, in the absence of special circumstances. Nordlund v. Lewis

Clark R. Co., ( 1932) 141 Or 83, 15 P2d 980.

Whenever instructions encompass within the word " negligence" an alleged violation of ORS 654. 305, proof showingthat after an injury the employer made a change in thetortious instrumentality and that subsequent experience hasshown that the change ( 1) is a practical safety measureand ( 2) does not detract from efficiency, is evidence ofnegligence. Williams v. Portland Gen. Elec. Co., ( 1952) 195

Or 197, 247 P2d 494.

The jury should be instructed that defendant could beheld liable only if it were proved he was an employer withinthe meaning of this Act. Thomas v. Foglio, ( 1961) 225 Or540, 358 P2d 1066.

An instruction that the employer was under a nondelega-

ble duty to furnish the employe a " reasonably safe" placeto work was not error, that being more favorable to theemployer than the law required. Nordin v. Lovegren Lbr.

Co., ( 1916) 80 Or 140, 156 P 587.

An instruction that, if the defendant had provided a " rea-

sonably and ordinarily safe" place for the plaintiff to work, considering the character of the work, defendant could notbe found negligent, was properly refused. Nelson v. Brown

McCabe, ( 1916) 81 Or 472, 159 P 1163.

An instruction on the duty to use an elevator safetydevice was proper. Poole v. Tilford, ( 1921) 99 Or 585, 195

P 1114.

An assumption by the court that plaintiffs work involvedrisk or danger was reversible error. McCauley v. SteamshipWillamette," ( 1923) 109 Or 131, 215 P 892.

Where the court in effect withdrew the common -law

cause of action from the consideration of the jury, it wasnot error to refuse to instruct the jury upon defenses pertaining exclusively thereto. Montgomery Ward & Co. v.

Hammer, ( 1930) 38 F2d 636.

An instruction that the defense of assumption of risk is

not available in an action under this Act, was proper where

the issue was developed by the evidence although not alleged as a defense. Nordlund v. Lewis & Clark R. Co., ( 1932) 141 Or 83, 15 P2d 980.

The failure to instruct as to the specific duty of the

633

SUPERSEDED

654.305

employer seasonably to test materials so as to detect defectswas not error in the absence of a request therefor. Id.

No prejudice resulted from a judge' s statement of his

interpretation of the Act where it appeared the jury declinedto apply that law to the case. Hamilton v. Redeman, ( 1939) 163 Or 324, 97 P2d 194.

The court' s statement to the effect that the employe, who

had not considered himself in danger, could not charge the

employer with negligence for not knowing that the placewas dangerous was improper. Lynch v. Ore. Lbr. Co., ( 1939)

108 F2d 283.

ORS 654.305 IN PARTICULAR

13. In general

The method of operation as well as the safe condition

of machinery is governed by the statutory words " care andprecaution." Lang v. Camden Iron Works, ( 1915) 77 Or 137, 146 P 964.

A two -year limitation is imposed on actions arising underthis section. Shelton v. Paris, ( 1953) 199 Or 365, 261 P2d

856.

In order for there to be a commingling of function orduty, a shoulder -to- shoulder performance of work is notnecessary. Hess v. United States, ( 1960) 282 F2d 633.

The Act is cast in terms of the nature and degree of

defendant's control over the work out of which the injuryarises. Bassick v. Portland Gen. Elec. Co., ( 1967) 246 Or 498,

426 P2d 450.

Plaintiff may recover under this Act against one who doesnot directly employ him. Id.

In an action for the death of city employe, killed whiletrying to rescue an employe of defendant, proof that cityhad been in complete control at time of accident precluded

recovery. Byers v. Hardy, ( 1959) 216 Or 42, 337 P2d 806,

cert. denied, 361 US 321, 80 S Ct 347, 4 L Ed 2d 347.

14. Member of public

The word " public" relates only to criminal liability underthe Act; a member of the public has no right of action unlesshe is an employe, or is engaged in a hazardous employment. Turnidge v. Thompson, ( 1918) 89 Or 637, 175 P 281; Saylor

v. Enterprise Elec. Co., ( 1923) 106 Or 421, 212 P 477; Drefs

v. Holman Transfer Co., ( 1929) 130 Or 452, 280 P 505; Pacific

States Lbr. Co. v. Bargar, ( 1926) 10 F2d 335.

No recovery as a member of the public was allowed agarbage collector who was an independent contractor at

the time of injury. Helzer v. Wax, ( 1928) 127 Or 427, 272P 556.

15. Person in charge

The word " and" means " or" in the sentence " all owners

and other persons having charge of any work," therebycreating a several and not a joint liability. Lawton v. Mor- gan, Fliedner & Boyce, ( 1913) 66 Or 292, 131 P 314, 134 P1037.

The requirements of the law are extended, by this section, to all persons having charge of or responsibility for anywork involving risk or danger to employes. Dunn v. OrchardLand Co., ( 1913) 68 Or 97, 136 P 872; Mackay v. Comm. of Port of Toledo, ( 1915) 77 Or 611, 152 P 250.

One who merely leases equipment used in the activityout of which plaintiff's injury occurred is not an employerwithin the meaning of this Act unless he was participatingin the activity out of which the injury arose. Thomas v. Foglio, ( 1961) 225 Or 540, 358 P2d 1066.

Decedent was under the direction and control of defen-

dant. Tallmon v. Toko Kaium K.K. Kobe, ( 1967) 278 F Supp452.

An elevator company, employing a constructor's helperupon the premises of a realty company was bound to use

care and devices under this Act. Gunnell v. Van EmonElevator Co., ( 1916) 81 Or 408, 159 P 971.

Plaintiff, in charge of the work of himself and another

in posting signs on defendant' s billboards, could not recoversince the breach of his duty to inspect the ladder fromwhich he fell when a rung broke was the cause of the injury. Howard v. Foster & Kleiser Co., ( 1958) 217 Or 516, 332 P2d

621, 342 P2d 780.

Plaintiff, a foreman, could not recover for injury fromfall since injury was caused by breach of foreman' s dutyto inspect. Galer v. Weyerhaeuser Tbr. Co., ( 1959) 218 Or

152, 344 P2d 544.

Evidence was conclusive that plaintiff was not a vice

principal with a duty to repair or inspect the machinery. Blaine v. Ross Lbr. Co., ( 1960) 224 Or 227, 355 P2d 461.

16. Work involving risk or danger1) Generally. Only employments beset with danger come

under the application of this Act. O' Neill v. Odd Fellows

Home, ( 1918) 89 Or 382, 174 P 148; Bottig v. Polsky, ( 1921) 101 Or 530, 201 P 188.

An occupation must be commonly regarded as dangerousbefore the employe is protected by this section and ORS654.310. Wells v. Nibler, (1950) 189 Or 593, 221 P2d 582; Short

v. Federated Livestock Corp., ( 1963) 235 Or 81, 383 P2d 1016. Hazardous occupations in general are included in this

section. Yovovich v. Falls City Lbr. Co., ( 1915) 76 Or 585,

149 P 941.

Where any risk or hazard would seem naturally incidentto the employment, this Act is broad enough to include anyinjury resulting to an employe. Lang v. Camden Iron Works, 1915) 77 Or 137, 146 P 964.

Any work involving a risk or danger" applies only toemployments which are inherently dangerous. Barker v. Portland Traction Co., ( 1947) 180 Or 586, 173 P2d 288, 178

P2d 706.

Work involving risk or danger is work which is inherentlydangerous or employment which presents dangers whichare uncommon. Richardson v. Harris, ( 1964) 238 Or 474, 395P2d 435.

In the absence of demurrer or motion to strike, complaint

alleging plaintiff was injured by falling into defendant'selevator shaft was sufficient, although there was no allega-

tion the work involved risk or danger. Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839.

2) Determining if risk, or danger involved. The place inwhich the work was to be done must be considered as a

factor in determining whether the work involved a risk ofdanger within this Act. Vanderflute v. Portland Ry., Light

Power Co., ( 1922) 103 Or 398, 205 P 551; Jodoin v. Luck -

enbach S. S. Co., ( 1928) 125 Or 634, 268 P 51.

It is the specific work engaged in when injured that

controls the question of risk and danger, rather than the

general name or character of the original employment.

Bartley v. Doherty, ( 1960) 225 Or 15, 351 P2d 71, 351 P2d521; Memmot v. State Ind. Acc. Comm., ( 1963) 235 Or 360,

385 P2d 188; Quick v. Andresen, ( 1964) 238 Or 433, 395 P2d

154.

Whether or not the particular work in which plaintiff was

engaged at the time of his injury involved risk or dangerordinarily is a jury question. Parks v. Edward Hines Lbr. Co., ( 1962) 231 Or 334, 372 P2d 978; Entler v. Hamilton,

1971) 258 Or 65, 481 P2d 85.

The general characteristics of an employment need not

be hazardous, but recovery may be had where the duty theemploye was performing was within the purview of the Actand the injury was due to a violation of the requirementsof the Act. Barker v. Portland Traction Co., ( 1947) 180 Or

586, 173 P2d 288, 178 P2d 706.

Although the duties of an employe have general charac-

teristics of inherent risk and danger ( alleged but not decid-

634

is

r

SUPERSEDED

ed), the employe is not thereby entitled to recover for aninjury occurring from a nonhazardous activity. Id.

Whether a case comes under the provisions of this Act

depends upon whether the employe, at the time he was

injured, engaged in work involving risk or danger. Williamsv. Clemen' s Forest Prod., ( 1950) 188 Or 572, 216 P2d 241,

217 P2d 252. Overruling Fitzgerald v. Ore. -Wash. R. & Nay.

Co., ( 1932) 141 Or 1, 16 P2d 27.

It was a jury question whether the arrangement of theload of logs on the truck was dangerous, and the absence

of machinery did not preclude the operation of the Employ- ers' Liability Act. Hon v. Moore Tbr. Prod., Inc., ( 1959) 215

Or 628, 337 P2d 321.

3) Particular employments

a) Rule. Ordinarily, whether the work involved risk ordanger to the employes or the public, is a question for the

jury. Yovovich v. Falls City Lbr. Co., ( 1915) 76 Or 585, 149

P 941; Wheeler v. Nehalem Tbr. Co., ( 1916) 79 Or 506, 155

P 1188; Poullos v. Grove, (1917) 84 Or 106, 164 P 562; Rorvick

v. No. Pac. Lbr. Co., ( 1921) 99 Or 58, 190 P 331, 195 P 163;

Bottig v. Polsky, ( 1921) 101 Or 530, 201 P 188; Jodoin v. Luckenbach S. S. Co., ( 1928) 125 Or 634, 268 P 51; Coomer

v. Supple Inv. Co., ( 1929) 128 Or 224, 274 P 302; Freeman

v. Wentworth & Irwin, ( 1932) 139 Or 1, 7 P2d 796; Ferretti

v. So. Pac. Co., ( 1936) 154 Or 97, 57 P2d 1280; Williams v.

Clemen' s Forest Prod., ( 1950) 188 Or 572, 216 P2d 241, 217

P2d 252; Snyder v. Prairie Logging Co., ( 1956) 207 Or 572,

298 P2d 180; Bartley v. Doherty, ( 1960) 225 Or 15, 351 P2d71, 351 P2d 521.

Risk and danger" is not established as a matter of law

whenever a workman is injured while working in a sawmilloperation. Williams v. Clemen' s Forest Prod., ( 1950) 188 Or

572, 216 P2d 241, 217 P2d 252.

Where the scaling of logs is required to be done concurrently with logging operations and in the vicinity and asa part thereof, the jury could find that such scaling involvesrisk and danger. Snyder v. Prairie Logging Co., ( 1956) 207

Or 572, 298 P2d 180.

Where plaintiff was required by her foreman and by thelocation of her place of work to jump down three feet toreach said place of work, there was sufficient evidence for

the jury to find her work to be inherently dangerous andtherefore involving risk or danger within ORS 654.305. Shevtin -Hixon Co. v. Smith, ( 1947) 165 F2d 170.

In a case involving an employe injured while loading anelectric furnace, the evidence was such that error was com-

mitted in withholding from the jury the question of whetherthe work performed by the employe involved risk or danger. Hale v. Elec. Steel Foundry Co., ( 1948) 183 Or 275, 191 P2d

257.

b) Employments involving risk or danger. Certainemployments involve risk or danger. Hauling slabs alonga slab haul 50 feet high on dead rolls in a sawmill, Dunn

v. Orchard Land Co., ( 1913) 68 Or 97, 136 P 872; movinga gtnpole, Lang v. Camden Iron Works, ( 1915) 77 Or 137, 146 P 964; tree cutting, Niemi v. Stanley Smith Lbr. Co., 1915) 77 Or 221, 147 P 532, 149 P 1033; mining activities,

Raiha v. Coos Bay Coal & Fuel Co., ( 1915) 77 Or 275, 143

P 892, 149 P 940, 151 P 471; stringing electric wires, Hartmanv. Ore. Elec. R. Co., ( 1915) 77 Or 310, 149 P 893, 151 P 472;

certain farm labor, Poullos v. Grove, ( 1917) 84 Or 106, 164

P 562; logging camp, Brady v. Ore. Lbr. Co., ( 1926) 117 Or

188, 243 P 96, 45 ALR 812; milling company employe, Walters v. Dock Comm., ( 1928) 126 Or 487, 245 P 1117, 266

P 634, 270 P 778.

Where bales of paper fell, the refusal of an instruction

based on the theory that the plaintiffs work did not involverisk or danger within this Act, was warranted by the evidence. Quinn v. Hawley Pulp and Paper Co., ( 1917) 85 Or

630, 167 P 571.

c) Employments not involving risk or danger as amatter of law. Certain employments do not involve risk

654.305

or danger. Removing an iron spool, weighing 250 to 300pounds, from a truck upon a railroad track, Isaacson v.

Beaver Logging Co., ( 1914) 73 Or 28, 143 P 938; a laundress

using a step ladder two or three feet high, not equippedwith a hand rail, in hanging up washing, O' Neill v. OddFellows Home, ( 1918) 89 Or 382, 174 P 148; restaurant and

confectionery business, Hoffman v. Broadway Hazelwood, 1932) 139 Or 519, 10 P2d 349, 11 P2d 814, 83 ALR 1008;

work of a streetcar operator In removing snow from aclogged switch, Barker v. Portland Traction Co., ( 1947) 180

Or 586, 173 P2d 288, 178 P2d 706; cutting a limb from atree, Wells v. Nibler, ( 1950) 189 Or 593, 221 P2d 582; one

employed as " lacer" during hop harvest, McLean v. GoldenGate Hop Ranch, ( 1952) 195 Or 26, 244 P2d 611; operatinga gasoline filling station, Union Oil Co. v. Hunt, ( 1940) 111F2d 269; home laundering, Larson v. Papst, ( 1955) 205 Or126, 286 P2d 123; hog feeding, Short v. Federated LivestockCorp., ( 1963) 235 Or 81, 383 P2d 1016.

FURTHER CITATIONS: I -L Logging Co. v. ManufacturersWholesalers Indem. Exch., ( 1954) 202 Or 277, 313, 273

P2d 212, 275 P2d 226; Montgomery Ward & Co. v. No. Pac.

Terminal Co., ( 1954) 17 FRD 52; Landgraver v. Emanuel

Lutheran Charity Bd., Inc., ( 1955) 203 Or 489, 520, 280 P2d

301; Schweigert v. Beneficial Standard Life Ins. Co., ( 1955)

204 Or 294, 282 P2d 621; Hall v. Copco Pac., Ltd., ( 1955)

224 F2d 884; Pease v. Roseburg Lbr. Co., ( 1956) 206 Or 658,

294 P2d 346; Lang v. Coastwise Line, ( 1956) 206 Or 667, 294 P2d 341; Ellis v. Fallert, ( 1957) 209 Or 406, 307 P2d 283;

Oviatt v. Camara, ( 1957) 210 Or 445, 311 P2d 746; O'Toole

v. United States, ( 1957) 242 F2d 308; Hahn v. Ross Island

Sand & Gravel Co., ( 1958) 214 Or 1, 320 P2d 668; Long v. Springfield Lbr. Mills, Inc., ( 1958) 214 Or 231, 327 P2d 421;

Hess v. United States, ( 1958) 259 172d 285; Nadeau v. Power

Plant Engineering Co., ( 1959) 216 Or 12, 337 P2d 313; Davis

v Angell, ( 1959) 218 Or 443, 345 P2d 405; Fisher v. Kirk, (1959)

219 Or 402, 347 P2d 851; Continental Cas. Co. v. Gen. Acc.

Fire & Life Assur. Corp., ( 1959) 175 F Supp 713; Olson v. River View Cemetery Assn., ( 1960) 220 Or 220, 349 P2d 279;

Mildenberger v. Cargill, Inc., (1960) 220 Or 629, 350 P2d 413;

Warner v. Mitchell Bros. Truck Lines, ( 1960) 221 Or 544,

352 P2d 156; Nelson v. Bartley, ( 1960) 222 Or 361, 352 P2d1083; Fisher v. Rudie Wilhelm, ( 1960) 224 Or 26, 355 P2d

242; Cimarron Ins. Co., Inc. v. Travelers Ins. Co., ( 1960)

224 Or 57, 355 P2d 742; Pruett v. Lininger, ( 1960) 224 Or

614, 356 P2d 547; O' Neal v. Meier & Frank Co., ( 1961) 226

Or 108, 359 P2d 101; Beers v. Chapman, ( 1962) 230 Or 553,

370 P2d 941; Renner v. Kinney, ( 1962) 231 Or 553, 373 P2d668; Dewey v. A. F. Kilaveness & Co., ( 1963) 233 Or 515,

379 P2d 560; Snook v. St. Paul Fire & Marine Ins. Co., ( 1963)

220 F Supp 314; Kemp v. Utah Const. and Min. Co., ( 1963)

225 F Supp 250; Cox v. AI Pierce Lbr. Co., ( 1965) 239 Or

546, 398 P2d 746; Crow v. Junior Bootshops, ( 1965) 241 Or

135, 404 P2d 789; Klerk v. Tektronix, Inc., ( 1966) 244 Or

10, 415 P2d 510; Godell v. Johnson, ( 1966) 244 Or 587, 418

P2d 505; Penrose v. Mitchell Bros. Crane Div., Inc., ( 1967)

246 Or 507, 426 P2d 861; Pooschke v. Union Pac. R. R.,( 1967)

246 Or 633, 426 P2d 866; Kruse v. Coos Head Tbr. Co., ( 1967)

248 Or 294, 432 P2d 1009; Wells v. Evans Prod. Co., ( 1968)

252 Or 17, 446 P2d 108; Johnson v. Field, ( 1969) 253 Or 654, 456 P2d 483; Bass v. Dunthorpe Motor Trans. Co., ( 1971)

258 Or 409, 484 P2d 319; McGrath v. White Motor Corp., 1971) 258 Or 583, 484 P2d 838; Leech v. Georgia -Pac. Corp., 1971) 259 Or 161, 485 P2d 1195.

ATTY. GEN. OPINIONS: Necessity of fault for liability, 1954 -56, p 79.

LAW REVIEW CITATIONS: 35 OLR 6; 39 OLR 75; 39 OLR

80, 81; 40 OLR 291, 293; 41 OLR 30, 226; 45 OLR 40; 45

OLR 43; 46 OLR 333; 1 WLJ 1 - 16, 28-31, 42, 43, 45, 63, 72, 74, 95 -104, 141, 620 -622.

635

SUPERSEDED

654.310

654.310

NOTES OF DECISIONS

See also cases under ORS 654.305 and 654.315 to 654.335.

The use of the word " or" in the first sentence of this

section indicates that for the recovery of damages a several, and not a joint, liability was contemplated. Lawton v. Mor- gan, Fliedner & Boyce, ( 1913) 66 Or 292, 131 P 314, 134 P

1037.

Insuring that a scaffolding will bear four times the maximum weight it is to sustain is a duty of a foreman or otherperson in charge. Moen v. Aitken, ( 1928) 127 Or 246, 271

P 730.

The highest degree of care is not contemplated in the

furnishing of the materials described in subsection ( 1). Mil - denberger v. Cargill, Inc., ( 1960) 220 Or 629, 350 P2d 413.

Manufacturer was not liable to employe of the machine's

owner. Richey v. Sumoge, ( 1967) 273 F Supp 904. Plaintiff, in charge of the work of himself and another


621, 342 P2d 780.

FURTHER CITATIONS: Myers v. Staub, ( 1954) 201 Or 663,

272 P2d 203; Hubbard v. Lamford Lbr. Co., .(1956) 209 Or

145, 304 P2d 943; Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839.

LAW REVIEW CITATIONS: 40 OLR 293; 1 WU 107, 108.

654.315

NOTES OF DECISIONS

See also cases under ORS 654.305, 654.310 and 654.320to 654.335.

Nondelegable, absolute and continuing duties are imposed on masters. Camenzind v. Freeland Furniture Co.,

1918) 89 Or 158, 174 P 139; Moen v. Aitken, ( 1928) 127 Or246, 271 P 730.

A rope selected by the plaintiff while engaged in workingfor himself need not be tested by the master' s foreman. Malloy v. Marshall -Wells Hdw. Co., ( 1918) 90 Or 303, 173

P 267, 175 P 659, 176 P 589.

Precisely the same duty to the same extent is placed uponeach of the persons specifically mentioned in this section, and none can delegate it. Marks v. Bauers, ( 1925) 3 F2d516.

Neither the owners nor the superintendent is made anymore responsible for the construction or operation of a

particular structure than the foreman. Id.

A civil suit against a negligent employe is not authorized

under this Act. Gray v. Hammond Lbr. Co., ( 1925) 113 Or

570, 232 P 637, 233 P 561, 234 P 261.

To see that a scaffold will bear four times the maximum

weight to be sustained by it is a duty of a foreman supervising its construction. Moen v. Aitken, ( 1928) 127 Or 246, 271 P 730.

Nondelegable, absolute and continuing duties are imposed on masters. Fields v. Fields, ( 1958) 213 Or 522, 307

P2d 528, 326 P2d 451.

The burden of proving the foreman's defense rule is withthe defendant. Bartley v. Doherty, ( 1960) 225 Or 15, 351 P2d71, 351 P2d 521.

It is necessary to an affirmative defense under this sectionto show plaintiff was charged with obedience to the Basic

Safety Code and that his violation was the proximate causeof his injury. Skeeters v. Skeeters, ( 1964) 237 Or 204, 389P2d 313, 391 P2d 386. -

Whether plaintiff had authority to hire and fire employes

is relevant to determining whether he was a vice principal. Id.

A foreman injured through a lack of safety appliancesit was his duty to provide, was not entitled to recovertherefor. Marks v. Bauers, ( 1925) 3 172d 516.

The chief engineer of a hotel had a statutory duty to seeto it that an ice crushing machine was not operated without proper guard. If he violated this duty, a cause of actionin his favor for injuries sustained by contact with the machine did not arise. Schmidt v. Multnomah Operating Co., 1936) 155 Or 53, 61 P2d 95.

Employe's familiarity with machine resulting from prioruse did not transfer to him duty imposed by statute onemployer to make machine as safe as practicable. Fields

v. Fields, ( 1958) 213 Or 522, 307 P2d 528, 326 P2d 451. Plaintiff, in charge of the work of himself and another


621, 342 P2d 780.

FURTHER CITATIONS: Richey v. Sumoge, ( 1967) 273 FSupp 904.


NOTES OF DECISIONS

See also cases under ORS 654.305 to 654.315 and 654. 325

to 654.335.

1. In general

This section changes the rule that the character of the

act in the performance of which the injury arises, and notthe rank or class of the negligent employe, is the test

whether a negligent employe is a vice - principal or a fellow

servant. Schulte v. Pac. Paper Co., ( 1913) 67 Or 334, 135

P 527, 136 P 5.

2. LiabilityNo recovery against a superintendent or manager is pro-

vided for by this section; the injured employe may onlyrecover against the employer for the negligence of the

superintendent or manager. Hoag v. Wash. -Ore. Corp., 1915) 75 Or 588, 144 P 574, 147 P 756; Gray v. Hammond

Lbr. Co., ( 1925) 113 Or 570, 232 P 637, 233 P 561, 234 P 261.

Whether the negligence of the owner or of a fellow -

workman causes an injury, the owner is liable by reasonof this and other sections. Reed v. Western Union Tel. Co.,

1914) 70 Or 273, 141 P 161.

Delegation of statutory duties to a foreman will not exonerate employer. Howard v. Foster & Kleiser Co., ( 1959)

217 Or 516, 332 P2d 621, 342 P2d 780.

A foreman was not entitled to recover for injuries result-

ing from his failure to comply with the statute as to safetydevices. Marks v. Bauers, ( 1925) 3 F2d 516.

3. Person in chargeA head sawyer is a vice - principal and not a fellow ser-

vant. Browning v. Smiley - Lampert Lbr. Co., ( 1914) 68 Or

502, 137 P 777.

A subcontractor has charge of the work and this section

casts upon him an agency in behalf of the original contractor who is Gable for injuries to an employe hired by thesubcontractor. Wolsiffer v. Bechill, ( 1915) 76 Or 516, 146 P513, 149 P 533.

A foreman in charge of lumbering operations is the agentof the lumber company by reason of this section. Yovovichv. Falls City Lbr. Co., ( 1915) 76 Or 585, 149 P 941.

Architects, provided by a construction contract to oversee

636

r

J

SUPERSEDED

C the work, are not independent contractors. Harvey v. Cor- bett, ( 1915) 77 Or 51, 150 P 263.

A carpenter is, as a matter of law, not one in charge or

control of the work under this section. Moen v. Aitken,

1928) 127 Or 246, 271 P 730.

A lineman was regarded as a vice - principal under this

section where he permitted an inexperienced boy of 18 toascend poles and tie high - voltage wires. Betts v. Bisher,

1914) 130 CCA 161, 213 Fed 581.

4. Evidence

Evidence, to the effect that the defendant' s foreman toldthe injured employe that if he did not like the job he could

leave, was admissible as tending to show where the plaintiffwas required to work at the time of the injury. Ramaswamyv. Hammond Lbr. Co., ( 1915) 78 Or 407, 152 P 223.

5. Instructions

Instruction that a tree faller killed by a flying limb wasas a matter of law not in charge or control of the work

was properly refused. Robbins v. Irwin, ( 1947) 180 Or 667, 178 P2d 935.

The trial court's use of the exact language of the sectionin place of paraphrase in plaintiffs requested instruction

was not error. Id.

LAW REVIEW CITATIONS: 1 WLJ 119, 121

654.325

NOTES OF DECISIONS

1. In general

2. Construction and effect

3. Relationship to ORS 30.020 ( the Wrongful Death Act) 1) In general

2) Effect on parties plaintiff

3) Effective date of action

4. Employer under Workmen' s Compensation Act5. Relation of employer and employe

6. Who may maintain action7. Pleading8. Damages

See also cases under ORS 654.305 to 654.320, 654.330 and

654.335.

1. In general

Contributory negligence of the deceased merely reducesthe recovery for his death. Kuntz v. Emerson HardwoodCo., ( 1919) 93 Or 565, 184 P 253.

An assignment of a right of action under this Act is not

permitted. Rorvik v. No. Pac. Lbr. Co., ( 1921) 99 Or 58, 190

P 331, 195 P 163. -

No right of action against a negligent employe is auth-

orized by this section. Gray v. Hammond Lbr. Co., ( 1925)

113 Or 570, 232 P 637, 233 P 561, 234 P 261.

If a decedent' s cause of action is barred at the time of

his death, an action under this section cannot be main-

tained; this is true notwithstanding an action brought bythe decedent tardily, which action was terminated withouttrial by reason of the death of the plaintiff. Piukkula v. Pillsbury Astoria Flouring Mills Co., ( 1935) 150 Or 304, 42P2d 921, 44 P2d 162, 99 ALR 244.

The word " children" as used in the statute includes bothadults and minors. Melton v. Southeast Portland Lbr. Co.,

1939) 160 Or 500, 85 P2d 1038.

2. Construction and effect

A new right of action is created by this section, but itis dependent upon the possession by the deceased of a causeof action at the time of his death. Piukkula v. PillsburyAstoria Flouring Mills Co., ( 1935) 150 Or 304, 42 P2d 921,

654.325

44 P2d 162, 99 ALR 244; Hansen v. Hayes, ( 1944) 175 Or358, 154 P2d 202.

This is not a survival statute. Id.

3. Relationship to ORS 30.020 ( the Wrongful Death Act) 1) In general. ORS 30.020 is not repealed by this Act.

Statts v. Twohy Bros. Co., ( 1912) 61 Or 602, 123 P 909;

McFarland v. Ore. Elec. R. Co., ( 1914) 70 Or 27, 138 P 458,

Ann Cas 1916B, 527; Niemi Y. Stanley Smith Lbr. Co., ( 1915)

77 Or 221, 227, 147 P 532, 149 P 1033; Hawkins v. AndersonCrowe, ( 1917) 84 Or 94, 164 P 556.

This section is exclusive of ORS 30.020 while the named

persons survive. Niemi v. Stanley Smith Lbr. Co., ( 1915)

77 Or 221, 227, 147 P 532, 149 P 1033; Hawkins v. Anderson

Crowe, ( 1917) 84 Or 94, 100, 164 P 556.

Construction of this section with ORS 30.020 is required, and so far as possible effect is to be given to the provisions

of each. Niemi v. Stanley Smith Lbr. Co., ( 1915) 77 Or 221,

147 P 532, 149 P 1033.

An election to sue under ORS 30.020 instead of this Act

does not violate any principle of public policy. Thompsonv. Union Fishermen' s Co -op. Packing Co., ( 1926) 118 Or 436,

235 P 694, 246 P 733.

An action under ORS 30.020 differs from one by a beneficiary under this Act in that the former is for the benefitof the estate, and the latter for the exclusive benefit of the

beneficiary named in the Act. Fox v. Ungar, ( 1940) 164 Or226, 98 P2d 717.

2) Effect on parties plaintiff. If any named beneficiaryis living, no other person can recover as otherwise employerwould be subject to more than one action for same wrong. Thompson v. Union Fishermen' s Co -op. Packing Co., ( 1926)

118 Or 436, 235 P 694, 246 P 733; Thompson v. Union Fisher-

men' s Co -op. Packing Co., ( 1929) 128 Or 172, 273 P 953.

Where none of the beneficiaries named survive, a person-

al representative may recover damages under ORS 30.020for the estate of the deceased or, if the deceased was a

child, and his parents did not survive, his guardian maysue. Id.

The personal representative of a deceased employe cov-

ered by this Act may bring an action in that capacity underORS 30.020, or in his capacity as a relative, if such is thecase, under this Act. Thompson v. Union Fishermen' s Coop. Packing Co., ( 1926) 118 Or 436, 235 P 694, 246 P 733; Thomp- son v. Union Fishermen' s Co -op. Packing Co., ( 1929) 128

Or 172, 273 P 953. Contra, Hawkins v. Barber Asphalt PavingCo., ( 1913) 202 Fed 340.

An action under ORS 30.020 could not be brought by awidow and children who may bring an action under thissection. Nordlund v. Lewis & Clark R. Co., ( 1932) 141 Or

83, 15 P2d 980. If anyone of the beneficiaries named in this statute is

living and in a position to bring the action, no actionbrought by the personal representative under ORS 30.020will lie. Fox v. Ungar, ( 1940) 164 Or 226, 98 P2d 717.

3) Effective date of action. An amended complaint filed

by a beneficiary under this Act in a suit originally broughtby the administrator to recover damages for the death ofids intestate did not relate back to the commencement of

the original action. Fox v. Ungar, ( 1940) 164 Or 226, 98 P2d717.

4. Employer under Workmen' s Compensation ActAn employer who is subject to the Workmen' s Compen-

sation Act and has fully complied therewith is not personally liable to a workman who is injured in the course ofhis employment or, in case of his death, to the beneficiaries

mentioned in this Act, or to anyone else. Bigby v. PelicanBay Lbr. Co., ( 1944) 173 Or 682, 147 P2d 199.

5. Relation of employer and employe

Employes only are protected by this Act, and only their

637

SUPERSEDED

654.330

substitutes may prosecute an action for death resultingfrom a violation of the Act. Saylor v. Enterprise Elec. Co., 1923) 106 Or 421, 212 P 477.

Where the evidence showed that deceased was not an

employe of any employer at the time of his death, an actioncannot be maintained. Id.

Where the evidence showed that deceased was not an

employe of any employer at the time of his death, an actiontion with the employer company, the mother of the decedent cannot maintain an action under this Act. Drefs v.

Holman Transfer Co., ( 1929) 130 Or 452, 280 P 505.

6. Who may maintain actionIf the mother of the decedent was surviving, the father

could not maintain an action. McFarland v. Ore. Elec. R. Co., ( 1914) 70 Or 27, 138 P 458, Ann Cas 1916B, 527.

Before the 1919 amendment, the administrator could not

sue under this section. Franciscovich v. Walton, ( 1915) 77

Or 36, 150 P 261.

Before the 1919 amendment, although a women left chil-

dren by a former marriage, her husband had a right ofaction for her death under this section. Crown Willamette

Paper Co. v. Newport, ( 1919) 260 Fed 110, 171 CCA 146.

A nonresident alien may maintain an action under thissection. Garvin v. Western Cooperage Co., ( 1919) 94 Or 487,

184 P 555.

Intermediaries are not permitted to sue under this section;

the action is to be maintained directly by whatever beneficiary is entitled to sue. Wilcox v. Warren Const. Co., ( 1920)

95 Or 125, 186 P 13, 13 ALR 211.

Before the 1919 amendment, the widow had the exclusive

right to sue for death of her husband in her own name;

and where she did not prosecute, her cause of action died

with her, and the husband' s lineal heirs, children by aformer wife, could not maintain the action. Id.

The Workmen' s Compensation Act precludes, if not ex-

pressly, at least by implication, the mother of a deceasedworkman who was not dependent upon his earnings in

whole or in part from maintaining an action for damagesfor his death under this Act. Bigby v. Pelican Bay Lbr. Co.,

1944) 173 Or 682, 147 P2d 199.

A widow and dependent minor children were properlymade parties plaintiff. Williams v. Clemen' s Forest Prod.,

1950) 188 Or 572, 216 P2d 241, 217 P2d 252. OverrulingMelton v. Southeast Portland Lbr. Co., ( 1939) 160 Or 500,

85 P2d 1038.

7. PleadingThe failure of a mother to allege the nonexistence of a

widow or children of her deceased son was cured by afinding that the son was unmarried. Gray v. Hammond Lbr. Co., ( 1925) 113 Or 571, 232 P 637, 233 P 561, 234 P 261.

Where there was no contention that there were actuallypreferred beneficiaries, an objection for failure to allege that

there were none was purely technical. Id.

8. Damages

Contributions of support money by the deceased employeis a proper item of damages in an action by the widowand children and recovery is not limited to the net amountthat the decedent would have saved from his earnings.

Nordlund v. Lewis & Clark R. Co., ( 1932) 141 Or 93, 15 P2d

980.

The amount of recovery under this section is to be measured by the pecuniary loss suffered by the person entitledto maintain the action. Scott v. Brogan, ( 1937) 157 Or 549, 73 P2d 688.

If the surviving spouse sues, the right of action includesthe damages suffered by the heirs. Melton v. SoutheastPortland Lbr. Co., ( 1939) 160 Or 500, 85 P2d 1038.

Damages under this Act are not measured by the " benefitof the estate" rule. Hansen v. Hayes, ( 1944) 175 Or 358, 154

P2d 202. Overruling McClaugherty v. Rogue River Elec. Co., 1914) 73 Or 135, 140 P 64, 144 P 569; Yovovich v. Falls

City Lbr. Co., ( 1915) 76 Or 585, 149 P 941; Kuntz v. EmersonHardwood Co., ( 1919) 93 Or 565, 184 P 253; Garvin v. Wes-

tern Cooperage Co., ( 1919) 94 Or 487, 184 P 555; Rorvik

v. No. Pac. Lbr. Co., ( 1921) 99 Or 58, 190 P 331, 195 P 163.

FURTHER CITATIONS: Hess v. United States, ( 1959) 361US 314, 80 S Ct 341, 4 L Ed 2d 305.

LAW REVIEW CITATIONS: 1 WW 35, 128- 133.

654.330


2. Construction

3. When section applies

4. Negligence of foreman5. Determination of employe' s status

6. Questions for jurySee also cases under ORS 654.305 to 654.325 and 654.335.

1. In general

No suit against a negligent employe is authorized byreason of this section. Lawton v. Morgan, Fliedner & Boyce,

1917) 66 Or 292, 131 P 314, 134 P 1037; Gray v. HammondLbr. Co., ( 1925) 113 Or 570, 232 P 637, 233 P 561, 234 P 261.

This section is remedial. Camenzind v. Freeland FurnitureCo., ( 1918) 89 Or 158, 174 P 139.

Assumption of risk is no defense where the plaintiff per-

forms work in conformity to the orders of the defendant'sforeman who has charge of the work. Bottig v. Polsky, 192 1) 101 Or 530, 201 P 188.

Employers are held to more stringent safety measuresthan those of the common law rule of due care. Howardv. Foster & Kleiser Co., ( 1959) 217 Or 516, 332 P2d 621, 342P2d 780.

The merchant marine Act abolishing the fellow servantrule could not be applied by a stevedore electing to try anaction under this Act. Van Norden v. Chas. R. McCormickLbr. Co., ( 1927) 17 F2d 568.

A directed verdict for employer was properly deniedwhere the defense was a fellow servant' s negligence in the

use of a bolt cutter furnished by the employer. Johnsonv. Ore. -Wash. R. R. & Nay. Co., ( 1928) 126 Or 85, 268 P985.

2. Construction

The word "works" as used in the statute, means an entire

plant; all the real estate, buildings and machinery used inthe particular business. Fitzgerald v. Ore. -Wash. R. & Nay.

Co., ( 1932) 141 Or 1, 16 P2d 27.

This section does not extend the scope of ORS 654.305. Williams v. Clemen' s Forest Products, Inc., ( 1950) 188 Or

572, 216 P2d 241, 217 P2d 252.

A motor car was held " machinery" within this sectionby a jury where injury was caused or contributes to byneglect of any person in control of machinery. Jodoin v. Luckenbach S. S. Co., ( 1928) 125 Or 634, 268 P 51.

3. When section applies

Where the action for injuries comes within the employers' liability law, the common -law doctrine of negligence offellow servants does not apply. Wasiljeff v. Hawley PaperCo., ( 1914) 68 Or 487, 137 P 755; Wheeler v. Nehalem TimberCo., ( 1916) 79 Or 506, 155 P 1188; Moen v. Aitken, ( 1928) 127 Or 246, 271 P 730; Peluck v. Pac. Machine & BlacksmithCo., ( 1930) 134 Or 171, 293 P 417; Hollopeter v. Palm, ( 1930) 134 Or 546, 291 P 380, 294 P 1056; Skeeters v. Skeeters, ( 1964) 237 Or 204, 389 P2d 313, 391 P2d 386.

The words " or other person" do not exclude the defense

of fellow servant in every case of negligence of an employe

638

SUPERSEDED

in charge of any machine used in the employer' s work. VanNorden v. Chas. R. McCormick Lbr. Co., ( 1927) 17 F2d 568.

Only where the injury is caused by one in authority isthe fellow servant defense inapplicable. Id.

Whether a business is connected with interstate com-

merce or not, this section applies. Swayne & Hoyt v. Barsch,

1915) 226 Fed 581, 141 CCA 337.

A plaintiff employed as a dock laborer, in his common -

law action for injuries sustained, was entitled to the protec-

tion of this section. Id.

4. Negligence of foremanEven though the foreman's order is negligent, the plaintiff

conforming therewith is not on that account precluded fromrecovering. Yovovich v. Falls City Lbr. Co., ( 1915) 76' Or

585, 149 P 941; Peluck v. Pac. Machine & Blacksmith Co.,

1930) 134 Or 171, 293 P 417.

Irrespective of any negligence on the part of the superiorservant, the employer is liable for any injury resulting toan employe injured in cutting through a tree in conformitywith the directions of his superior, as was his duty. Yovo- vich v. Falls City Lbr. Co., ( 1915) 76 Or 585, 149 P 941.

5. Determination of employe's status

The court may determine whether an offending employeis a temporary vice - principal or a fellow servant where thereis no dispute as to the facts, or where only one inferencecan legitimately be drawn. Isaacson v. Beaver Logging Co.,

1914) 73 Or 28, 143 P 938. Where it was contradicted that the plaintiff performed

work under the direct, positive command of a superior

servant, to give an instruction that the servant giving theorder was not a fellow servant with the plaintiff is error. Id.

A head sawyer, who did not heed employe's signal, was

within the definition of those whose neglect or incompe-

tence shall not be a defense by reason of this section. Browning v. Smiley - Lampert Lbr. Co., ( 1914) 68 Or 502, 137

P 777.

That the mate of a vessel superintending its discharge, with power to discharge the dock laborers, was a fellowservant of a dock laborer, could not be said, as a matter

of law. Swayne & Hoyt v. Barsch, ( 1915) 226 Fed 581, 141

CCA 337.

6. Questions for juryWhether a fellow servant's negligence caused the injury

was a question for the jury where fellow servant may nothave obeyed employer. Reed v. W. Union Tel. Co., ( 1914)

70 Or 273, 141 P 161.

Evidence was insufficient to go to the jury upon thespecification of negligence of the engineer who was in

charge leaving the power room just prior to an accident. Erickson v. Pac. States Lbr. Co., ( 1927) 18 F2d 513.

Whether a foreman ordered the act causing an employe' sinjury, was a question for the jury under conflicting evidence. Peluck v. Pac. Machine & Blacksmith Co., ( 1930) 134

Or 171, 293P417.

No error was committed by refusal of instruction thatfatal injury to tree faller was not his fault when he actedunder order of superior, where questions as to his negli-

gence and as to whether he acted under superior were

properly submitted to jury. Robbins v. Irwin, ( 1947) 180 Or667, 178 P2d 935.

LAW REVIEW CITATIONS: 33 OLR 90; 1 WLJ 22, 120- 126.

654.335

NOTES OF DECISIONS

1. In general

2. Abolition of defense of contributory negligence

654. 335

3. Fixing the amount of damages4. Pleading and proof5. Instructions

See also cases under ORS 654.305 to 654.330.

1. In general

Only actions specified in ORS 654.305 and 654.310 comewithin the exception to the common -law rule as to contrib-

utory negligence as expressed by this section. Schaedler v. Columbia Contract Co., ( 1913) 67 Or 412, 135 P 536.

The doctrine of comparative negligence by which theperson injured is entitled to recovery only when his negligence is slight and that of the defendant gross in comparison is not applicable to actions under this Act. Filkins v. Portland Lbr. Co., ( 1914) 71 Or 249, 142 P 578.

This section is remedial. Camenzind v. Freeland FurnitureCo., ( 1918) 89 Or 158, 174 P 139.

Employers are held to more stringent safety measuresthan those of the common law rule of due care. Howardv. Foster & Kleiser Co., ( 1959) 217 Or 516, 332 P2d 621, 342P2d 780.

2. Abolition of defense of contributory negligenceIn cases within this Act the defense of contributory neg-

ligence is eliminated, but must be taken into account in

fixing the amount of damages. Wasiljeff v, Hawley PaperCo., ( 1914) 68 Or 487, 137 P 755; Cameron v. Pac. Lime & Gypsum Co., ( 1914) 73 Or 510, 144 P 446, Ann Cas 1916E,

769; Blair v. W. Cedar Co., ( 1915) 75 Or 276, 146 P 480;

Wheeler v. Nehalem Tbr. Co., ( 1916) 79 Or 506, 155 P 1188;

Gunnell v. Van Emon Elevator Co., ( 1916) 81 Or 408, 159

P 971; Poullos v. Grove, ( 1917) 84 Or 106, 164 P 562; Peluck

v. Pac. Machine & Blacksmith Co., ( 1930) 134 Or 171, 293

P 417; Hovedsgaard v. Grand Rapids Store Equip. Corp., 1931) 138 Or 39, 5 P2d 86; Fitzgerald v. Ore. -Wash. R. &

Nay. Co., ( 1932) 141 Or 1, 16 P2d 27; Skeeters v. Skeeters,

1964) 237 Or 204, 389 P2d 313, 391 P2d 386.

In all cases where there has been any negligence on thepart of an employer, the issue of contributory negligencemust be submitted to the jury for comparison. Hartmanv. Ore. Elec. R. Co., ( 1915) 77' Or 310, 149 P 893, 151 P 472.

In cases within this Act the defense of contributory negligence is eliminated, but must be taken into account in

fixing the amount of damages. Mazurek v. Rajnas, ( 1969) 253 Or 555, 456 P2d 83.

Where a plaintiff stevedore was hurt in doing work involving the use of machinery, his own contributory negligence would not completely bar recovery. Kveset v. W.R. Grace & Co., ( 1915) 77 Or 83, 150 P 281.

In an action by a servant injured by a runaway teamwhile hauling lumber, the servant's alleged negligence couldbe considered only in mitigation of damages. Olds v. Olds, 1918) 88 Or 209, 171 P 1046.

Negligence of an elevator operator in occupying a dangerous position in the elevator was no defense; the employer was obligated to construct the elevator so that there

would be no dangerous position thereon. Suey v. BensonHotel Co., ( 1919) 91 Or 395, 179 P 239.

For an employe to change his place in a room was at

most contributory negligence, merely reducing recovery. Kuntz v. Emerson Hardwood Co., ( 1919) 93 Or 565, 184 P

253.

A carpenter' s negligence, unless willful, was properlystated to be no defense in a personal injury action againstan employer. Hollopeter v. Palm, ( 1930) 134 Or 546, 291 P

380, 294 P 1056.

3. Fixing the amount of damagesWhere the party injured was not exercising ordinary care,

a part of the loss must be borne by him, and the remainderis recoverable from the defendant, on the basis of the fault

639

SUPERSEDED

654.410

of each. Filkins v. Portland Lbr. Co., ( 1914) 71 Or 249, 142

P 578.

The jury should fast discover what sum of money wouldafford indemnity for the injury, irrespective of the causeof the hurt, and then if both employer and employe are

guilty of negligence, they must compare the negligence ofeach, and from such relative estimate assess the damages. Sonniksen v. Hood River Gas & Elec. Co., ( 1915) 76 Or 25,

146 P 980.

The apportioning of damages according to the respectivewant of care of the parties is proper under this section.

Raiha v. Coos Bay Coal & Fuel Co., ( 1915) 77 Or 275, 143

P 892, 149 P 940, 151 P 471.

The word " may" in this section means " must "; and it

is the duty of jury to consider contributory negligence. Donaghy v. Ore. -Wash. R. & Nay. Co., ( 1930) 133 Or 663,

288 P 1003, 291 P 1017.

4. Pleading and proofPleading and proof of contributory negligence for the

consideration of the jury in determining the amount ofrecovery, but not as a defense, was proper. Schulte v. Pac. Paper Co., ( 1913) 67 Or 334, 135 P 527, 136 P 5.

An answer pleading that the injury was caused solelyby the negligence of the plaintiff, although not admittinga dereliction upon the part of the employer, was sufficient

to justify instructions by the court on contributory negligence. Tabor v. Coin Mach. Mfg. Co., ( 1917) 85 Or 194, 166

P 529.

Disregard of a warning by an injured employe was properevidence of contributory negligence by him so as to reducedamages. Kuntz v. Emerson Hardwood Co., ( 1919) 93 Or

565, 184 P 253.

The trial court did not commit error in withdrawing thecharge of contributory negligence where defendant failedto support it by substantial evidence. Manasco v. Barclayand Dahl, ( 1950) 189 Or 109, 218 P2d 469.

5. Instructions

Instructions to this section without explaining to the jurythat the word " may" therein should be construed as " must" constitutes error. Donaghy v. Ore. -Wash. R. & Nay. Co.,

1930) 133 Or 663, 288 P 1003, 291 P 1017.

An instruction that no recovery could be had by an employe guilty of contributory negligence was erroneous and

was properly refused. Raiha v. Coos Bay Coal & Fuel Co.,

1915) 77 Or 275, 143 P 892, 149 P 940, 151 P 471; Nelson

v. Brown & McCgbe, ( 1916) 81 Or 472, 159 P 1163; Oldsv. Olds, ( 1918) 88 Or 209, 171• P 1046; Hollopeter v. Palm,

1930) 134 Or 546, 291 P 380, 294 P 1056.

Instructions taken together, correctly stated the law thatthe contributory negligence of the employe, if any, mustbe compared with that of the employer, and considered in

mitigation in assessing damages. Sonniksen v. Hood R. GasElec. Co., ( 1915) 76 Or 25, 146 P 980; Donaghy v. Ore. -

Wash. R. & Nay. Co., ( 1930) 133 Or 663, 288 P 1003, 291

P 1017.

That this Act abrogated the legal principles of contribu-

tory negligence was not an erroneous instruction. Evansv. Portland Ry., Light and Power Co., ( 1913) 66 Or 603, 135

P 206.

Where the jury rendered a verdict for the plaintiff, anerror in instructing the jury as to contributory negligencewas not prejudicial to him. Coleman v. LaGrande, ( 1914)

73 Or 521, 144 P 468.

An instruction that if the accident was solely the plaintiff's fault and not his contributory fault he could not re-

cover was proper. Ramaswamy v. Hammond Lbr. Co., 1915) 78 Or 407, 152 P 223.

An instruction as to reasonable care of employe could

properly be refused where the court had charged in accordance with this section. Dickerson v. E. & W. Lbr. Co.,

1916) 79 Or 281, 155 P 175.

That the jury should not consider contributory negligenceat all was an erroneous instruction. Tabor v. Coin Mach.

Mfg. Co., ( 1917) 85 Or 194, 166 P 529.

A refusal to give instructions as to the plaintiffs sole

negligence was not error where a part of the charge given

covered the same ground. Suey v. Benson Hotel Co., ( 1919)

91 Or 395, 179 P 239.

Where there was no plea, evidence or circumstances of

contributory negligence, the refusal of plaintiffs requestedinstruction on contributory negligence was not error. Stan- field v. Fletcher, ( 1925) 114 Or 531, 236 P 258.

FURTHER CITATIONS: Hess v. United States, ( 1959) 361US 314, 80 S Ct 341, 4 L Ed 2d 305; Ritters v. Beals, ( 1961)

225 Or 504, 358 P2d 1080; Norman v. Cunningham SheepCo., (1963) 233 Or 385, 377 P2d 916; Godell v. Johnson, ( 1966)

244 Or 587, 418 P2d 505; Peterson v. Culp, ( 1970) 255 Or269, 465 P2d 876.


654.410

NOTES OF DECISIONS

A violation of this section constitutes negligence without

regard to the applicability or nonapplicability of the penalclause of this statute. Fitzgerald v. Ore. -Wash. R. & Nay.

Co., ( 1932) 141 Or 1, 16 P2d 27.

The height of an electric bulb above the head of the

stairway, in view of the shortness of the chain, may bea defect of which the employer could have had knowledge

by the exercise of ordinary care. Id.

FURTHER CITATIONS: Barker v. Portland Traction Co.,

1947) 180 Or 586, 173 P2d 288, 178 P2d 706.

654.415

ATTY. GEN. OPINIONS: Statute as applicable to school

district shop, 1924 -26, p 604.

NOTES OF DECISIONS

1. Subsection ( 5)

The word "public" in ORS 654. 305 relates only to criminalliability under the Employers' Liability Act. Turnidge v. Thompson, ( 1918) 89 Or 637, 175 P 281; Saylor v. EnterpriseElec. Co., ( 1923) 106 Or 421, 212 P 477, Drefs v. Holman

Transfer Co., ( 1929) 130 Or 452, 280 P 505; Pacific States

Lbr. Co. v. Bargar, ( 1926) 10 F2d 335.

FURTHER CITATIONS: Shelton v. Paris, ( 1953) 199 Or 365, 261 P2d 856; M & M Wood Working Co. v. State Ind. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082; 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.


640

SUPERSEDED

Chapter 655

Benefits for Injured Trainees and Inmates

Chapter 655 655.505 to 655.550

LAW REVIEW CITATIONS: 45 OLR 43, 48. CASE CITATIONS: Boatwright v. State Ind. Acc. Comm.,

1966) 244 Or 140, 416 P2d 328.


641

SUPERSEDED

Chapter 656

Workmen's Compensation

Chapter 656

NOTES OF DECISIONS

1. In general

2. Constitutionality3. Construction

4. Purpose

5. Maritime law

1. In general

The rights and remedies provided by this Act are exclusive. Bigby v. Pelican Bay Lbr. Co., ( 1944) 173 Or 682, 147

P2d 199; Ellis v. Fallert, ( 1957) 209 Or 406, 307 P2d 283.

Pleadings under this law stand on the same footing asother actions. Coblentz v. State Ind. Acc. Comm., ( 1955)

203 Or 258, 279 P2d 503; Dimitroff v. State Ind. Acc. Comm., 1957) 209 Or 316, 306 P2d 398; Larson v. State Ind. Acc.

Comm., ( 1957) 209 Or 389, 307 P2d 314. Coblentz v. State

Ind. Acc. Comm., supra, distinguished In Larson v. StateInd. Acc. Comm., ( 1957) 209 Or 389, 307 P2d 314.

A special privilege is conferred upon an employer by thisAct thereby releasing him from the common -law liabilityto respond in damages for a personal injury that has beencaused by his negligence. Olds v. Olds, ( 1918) 88 Or 209, 171 P 1046.

The procedure provided by this Act for presenting claimsand taking appeals must be followed. Liimatainen v. Ind. Acc. Comm., ( 1926) 118 Or 260, 262, 246 P 741.

The test of the employe' s right to redress is not whethera right of action can be maintained against the employer;

this Act contemplates compensation for an injury arisingout of circumstances which would not afford an employe

a cause of action. Lamm v. Silver Falls Tbr. Co., ( 1930) 133

Or 468, 277 P 91, 286 P 527, 291 P 375. A more comprehensive objective than the principles

which govern the common -law action of negligence exists

under this law. Hovedsgaard v. Grand Rapids Store Equip- ment Corp., ( 1931) 138 Or 39, 5 P2d 86.

The common law is not abrogated, but rather its wake

is followed, by this law. Williams v. Dale, ( 1932) 139 Or105, 8 P2d 578, 82 ALR 922.

The legislature had the right to append such conditions

as it chose to the privilege of receiving compensation. Rosellv. Ind. Acc. Comm., ( 1939) 164 Or 173, 95 P2d 726.

The law at the time of injury determines a claimant' srights. Id.

A workmen' s compensation proceeding is sui generis. Hinkle v. Ind. Acc. Comm., ( 1940) 163 Or 395, 97 P2d 725.

An employer who is subject to this Act is not personallyliable to a workman who is injured, or in case of death, to the beneficiaries named in this Act or to the beneficiaries

named in the Employers' Liability Act, or to anyone else. Bigby v. Pelican Bay Lbr. Co., ( 1944) 173 Or 682, 147 P2d199.

After expiration of time limit, appeal filed on groundsthat an award under occupational disease law constituted

a denial under workmen' s compensation was properly dismissed. Dodd v. State Ind. Acc. Comm., ( 1957) 211 Or 99,

310 P2d 324, 311 P2d 458, 315 P2d 138.

2. ConstitutionalityThis Act is not. unconstitutional under any provision of

the Oregon or United States Constitution. Evanhoff v. Ind. Acc. Comm., ( 1915) 78 Or 503, 154 P 106.

Admiralty jurisdiction is not interfered with to an extentso as to render this law unconstitutional. West v. Kozer,

1922)* 104 Or 94, 206 P 542.

3. Construction

A liberal construction should be given this law. Donden-

eau v. Ind. Acc. Comm., ( 1926) 119 Or 357, 249 P 820, 50

ALR 1129; Huntley v. Ind. Acc. Comm., ( 1931) 138 Or 184,

6 P2d 209; Goss v. Ind. Acc. Comm., ( 1932) 140 Or 146, 12

P2d 322, 1006; Cain v. Ind. Acc. Comm., ( 1934) 14.9 Or 29,

37 P2d 353, 96 ALR 1072; Zurich General Acc. & LiabilityIns. Co. v. Brunson, ( 1926) 15 F2d 906; Livingston v. StateInd. Acc. Comm., ( 1954) 200 Or 468, 266 P2d 684; Bos v.

State Ind. Acc. Comm., ( 1957) 211 Or 138, 315 P2d 172;

Newell v. Taylor, ( 1958) 212 Or 522, 321 P2d 294.

Technical errors in the administration of this law should

not greatly concern the Supreme Court. Hartley v. Ind. Acc. Comm., ( 1927) 123 Or 310, 261 P 71.

The fundamental purpose and object sought by the enactment of this law should not be lost to sight in construingits provisions. State v. Ind. Acc. Comm., ( 1934) 145 Or 443,

28 P2d 237.

Private policies issued which provide for compensation

in accordance with this law should be given a liberal construction. Zurich General Acc. & Liab. Ins. Co. v. Brunson,

1926) 15 F2d 906.

Court's duty to liberally construe this law does not include authority to alter it. Allen v. State Ind. Acc. Comm.,

1954) 200 Or 521, 265 P2d 1086.

Statute denying workman' s common law right to suemust be strictly construed in his favor. Johnson v. Tbr. Structures, Inc., ( 1955) 203 Or 670, 281 P2d 723.

The words " arising out of and in the course of his employment" in this law should be liberally construed to asto evenly distribute costs of injuries. Ramseth v. Maycock, 1956) 209 Or 66, 304 P2d 415.

4. Purpose

To make every industrial enterprise bear the pecuniaryloss of all accidental injuries to its employes resulting fromrisks to which they are exposed in a substantially greaterdegree than the ordinary public is the purpose of this law. Lamm v. Silver Falls Tbr. Co., ( 1930) 133 Or 468, 277 P 91,

286 P 527, 291 P 375; Hinkle v. Ind. Acc. Comm., ( 1940) 163

Or 395, 97 P2d 725; Bowser v. Ind. Acc. Comm., ( 1947) 182

Or 43, 185 P2d 891; Newell v. Taylor, ( 1958) 212 Or 522, 321 P2d 294.

Minimizing litigation and lessening the burden on thetaxpayer therefrom, are purposes of this law as well as thebenefit to the employer and employe. Williams v. Dale,

1932) 139 Or 105, 8 P2d 578, 82 ALR 922; Bigby v. PelicanBay Lbr. Co., ( 1944) 173 Or 682, 147 P2d 199.

It is the manifest purpose of the Act that the compensa-

tion should be adjusted from time to time as the employe's

642

u

SUPERSEDED

disability increases or diminishes. Chebot v. Ind. Acc. Comm., ( 1923) 106 Or 660, 212 P 792.

The replacement of an unscientific and cumbersome pro-

cedure for determining the right to, and the amount of, compensation for injured workmen by a system whichwould in all cases designate an award, regardless of the

manner of sustaining injuries or becoming incapacitated, which award would be limited in amount but commensurate

in some degree with the disability suffered, is an object ofthis law. Cain v. Ind. Acc. Comm., ( 1934) 149 Or 29, 37 P2d

353, 96 ALR 1072.

The creation of an administrative force through which

injured workmen may receive certain fixed compensationwithout the formalities attendant upon court procedure, is

an object of this law. Miller v. Ind. Acc. Comm., ( 1934) 149

Or 49, 39 P2d 366.

The broad purpose of the Act as expressed in the pream-

ble discloses that, like the Unemployment Compensation

Act, the Act is for the general public welfare. Ind. Acc. Comm. v. Aebi, ( 1945) 177 Or 361, 162 P2d 513, 161 ALR

211.

This law was enacted to correct recognized evils inherent

in litigation against employers by injured employes. Plum- mer v. Donald M. Drake Co., ( 1958) 212 Or 430, 320 P2d

245.

5. Maritime law

The loading of a barge or ship has direct relation tocommerce and navigation and is not a mktter of purely localconcern. An injury sustained by one so employed is notcompensable under the workmen' s compensation law.

Martinson v. Ind. Acc. Comm., ( 1936) 154 Or 423, 60 P2d

972. Contra West v. Kozer, ( 1922) 104 Or 94, 206 P 542; Rickert v. Ind. Acc. Comm., ( 1927) 122 Or 565, 259 P 205,

56 ALR 348; Netherlands Amer. Steam Nay. Co. v. Gal- lagher, ( 1922) 282 Fed 171 and Grant Smith -Porter Co. v. Rohde, ( 1921) 257 US 469, 42 S Ct 157, 66 L Ed 321.

The maritime law is to be administered by the federalcourts unaffected by state compensation Acts. Cassil v. U.S. Emergency Fleet Corp., ( 1923) 289 Fed 774.

The exclusive features of the Oregon Act accepted byemployer and employe abrogate the right to recover dam-

ages in an admiralty court as to local matters. West v. Kozer, ( 1922) 104 Or 94, 206 P 542; Grant Smith -Porter Co.

v. Rohde, ( 1921) 257 U.S. 469, 42 S Ct 157, 66 L Ed 321;

Netherlands Amer. Steam Nay. Co. v. Gallagher, ( 1922) 282

Fed 171.

The fact that the United States required contractors tocome under the provisions of the state workmen's compen-

sation law is evidence that the United States did not acquire

exclusive jurisdiction over the territory in which the workwas performed. Atkinson v. State Tax Comm., ( 1938) 303

US 20, 58 S Ct 419, 82 L Ed 621, affg ( 1937) 156 Or 461, 62 P2d 13, 67 P2d 161.

Where injury sustained while working on a barge innavigable waters within Oregon occurred in the " twilight

zone," this law may be applied and Longshoreman' s Actis not an exclusive remedy. Hahn v. Ross Island Sand & Gravel Co., ( 1959) 358 US 273, 79. S Ct 266, 3 L Ed 2d 292,

rev'g 214 Or 1, 320 P2d 668.

FURTHER CITATIONS: Buckles v. Continental Cas. Co., 1953) 197 Or 128, 251 P2d 476, 252 P2d 184; Shelton v. Paris, 1953) 199 Or 365, 261 P2d 856; I -L Logging Co. v. Manufac-

turers & Wholesalers Indem. Exch., ( 1953) 202 Or 277, 273

P2d 212, 275 P2d 226; Conley v. State Ind. Acc. Comm., 1954) 200 Or 474, 266 P2d 1061; State Ind. Acc. Comm.,

v. Garreau, ( 1954) 200 Or 594, 267 P2d 661; M & M Wood

Working Co. v. State Ind. Acc. Comm., ( 1954) 201 Or 603,

271 P2d 1082; Franklin v. State Ind. Acc. Comm., ( 1954) 202

Or 237, 274 P2d 279; Hurd v. Ill. Bell Tel. Co., ( 1955) 136

F Supp 125, 140; Williamson v. Weyerhaeuser Tbr. Co.,

Ch. 656

1955) 221 F2d 5; Hall v. Copco Pac., Ltd., ( 1955) 224 F2d

884; Bennett v. State Ind. Acc. Comm., ( 1955) 203 Or 275,

279 P2d 655, 279 P2d 886; Schweigert v. Beneficial StandardLife Ins. Co., ( 1955) 204 Or 294, 282 P2d 621; Smith v. Smith,

1955) 205 Or 286, 287 P2d 572; Nordling v. Johnston, ( 1955) 205 Or 315, 283 P2d 994, 287 P2d 420, 48 ALR2d 1369; Gre-

gory v. State Ind. Acc. Comm., ( 1955) 205 Or 643, 288 P2d

1069; Pease v. Roseburg Lbr. Co., ( 1956) 206 Or 658, 294

P2d 346; King v. State Ind. Acc. Comm., ( 1957) 211 Or 40,

309 P2d 159, 315 P2d 148, 318 P2d 272; Manke v. Nehalem

Logging Co., ( 1957) 211 Or 211, 301 P2d 192, 315 P2d 539;

Hensler v. Portland, ( 1957) 212 Or 28, 318 P2d 313; Mikolich

v. State Ind. Acc. Comm., ( 1957) 212 Or 36, 316 P2d 812,

318 P2d 274; Butler v. State Ind. Acc. Comm., ( 1958) 212

Or 330, 318 P2d 303; Hillman v. No. Wasco County PUD, 1958) 213 Or 264, 323 P2d 664; Ballou v. State Ind. Acc.

Comm., ( 1958) 214 Or 123, 328 P2d 137; Long v. SpringfieldLbr. Mills, Inc., (1958) 214 Or 231, 327 P2d 421; Continental

Cas. Co. v. Gen. Acc. Fire & Life Assur. Corp., ( 1959) 175

F Supp 713; Upper Columbia R. Towing Co. v. Glens FallsIns. Co., (1959) 179 F Supp 705; Burnett v. Hernandez, ( 1959) 263 F2d 212; King v. Pan Am. World Airways, ( 1959) 270F2d 355; Tucker v. State Ind. Acc. Comm., ( 1959) 216 Or

74, 337 P2d 979; Welter v. M & M Woodworking Co., ( 1959)

216 Or 266, 338 P2d 651; Claussen v. Ireland, ( 1959) 216 Or289, 338 P2d 676; Orr v. State Ind. Acc. Comm., ( 1959) 217

Or 249, 342 P2d 136; McGuire v. Brown, ( 1959) 217 Or 300, 342 P2d 774; Howard v. Foster & Weiser Co., ( 1959) 217

Or 516, 332 P2d 621, 342 P2d 780; Kennedy v. State Ind. Acc. Comm., ( 1959) 218 Or 432, 345 P2d 801, 86 ALR2d 1032;

Fisher v. Kirk & Son, Inc., ( 1959) 219 Or 402, 347 P2d 851;

Bandy v. Norris, Beggs & Simpson, ( 1960) 222 Or 1, 342 P2d

839, 351 P2d 445; Bakkensen v. John Hancock Mut. Life

Ins. Co., ( 1960) 222 Or 484, 353 P2d 558; Furrer v. State Ind.

Acc. Comm., ( 1960) 223 Or 151, 353 P2d 565; Fisher v. Rudie

Wilhelm Whse., Inc., (1960) 224 Or 26, 355 P2d 242; Cimarron

Ins. Co. v. Travelers Ins. Co., ( 1960) 224 Or 57, 355 P2d 742;

Boykin v. State Ind. Acc. Comm., ( 1960) 224 Or 76, 355 P2d

724; Montgomery v. State Ind. Acc. Comm., ( 1960) 224 Or

380, 356 P2d 524; Blaine v. Ross Lbr. Co., ( 1960) 224 Or 227,

355 P2d 461; Smith v. Jacobsen, ( 1960) 224 Or 627, 356 P2d421; Thomas v. Foglio, ( 1961) 225 Or 540, 358 P2d 1066;

Thompson v. Gen. Ins. Co. of America, ( 1961) 226 Or 205,

359 P2d 1097; Davis v. Weyerhaeuser Co., ( 1962) 231 Or 596,

373 P2d 985; Reynolds v. Halbert, ( 1962) 232 Or 586, 375P2d 245; Snook v. St. Paul Fire & Marine Ins. Co., ( 1963)

220 F Supp 314; Colvin v. Weyerhaeuser Co., ( 1964) 229 F

Supp 1022; Albina Engine and Mach. Works v. O' Leary, 1964) 328 F2d 877; Schnell v. Appling, ( 1964) 238 Or 202,

395 P2d 113; Boatwright v. State Ind. Acc. Comm., ( 1966)

244 Or 140, 416 P2d 328; Evoniuk v. Great Am. Ins. Co.,

1967) 246 Or 75, 424 P2d 216; Safeco Ins. Co. v. Christensen,

1968) 248 Or 550, 436 P2d 270; Larson v. State Comp. Dept., 1969) 1 Or App 329, 462 P2d 694; Burnett v. W. Pac. Ins.

Co., ( 1970) 255 Or 547, 469 P2d 602; Place v. Friesen Lbr.

Co., ( 1970) 2 Or App 6, 463 P2d 596, rev' d, 258 Or 98, 481P2d 617; Hiles v. State Comp. Dept., ( 1970) 2 Or App 506, 470 P2d 165; Williams v. Joyce, ( 1971) 4 Or App 482, 479P2d 513, Sup Ct review denied; Bailey v, Morrison- KnudsenCo., ( 1971) 5 Or App 592, 485 P2d 1254.

ATTY. GEN. OPINIONS: Elected county officials as " workmen," 1948 -50, p 20; retroactivity of the Act, 1948 -50, p 242; effective date of the Act, 1952 -54, p 54; constitutionality ofretroactive benefit increases, 1954 -56, p 77; pay deductioncontracts by employers rejecting the Act, 1954 -56, p 79; coverage of blind workers at Oregon Service Center, 1954-

56, p 157; payment of waitresses' fees and expenses bycommission, 1954 -56, p 222; segregating additional compensation payable to injured workmen among beneficiaries, 1956 -58, p 186; compulsory contribution to fund by justicesand judges, 1960 -62, p 7; sheepshearers as employes, 1960 -62,

643

SUPERSEDED

656.001

p 136; owner - driver of log truck as employe, 1960 -62, p 151; right of county court to compensation check of a publicofficer receiving full salary, 1960 -62, p 204; coverage of statehospital volunteer workers, L960 -62, p 261; summer campprogram participants as workmen, 1962 -64, p 103; disposition of interest earned on State Industrial Accident Fund,

1964 -66, p 31; this Act as affecting taxation, 1964 -66, p 141; constitutionality of amendment governing referendum,

1964 -66, p 155; presumption of constitutionality of enactedamendment, 196466, p 205; State Industrial Accident Com- mission as- a corporation, 1966 -68, p 264; Attorney Generalas legal counsel for business matters under this law, 1966 -68, p 449; respective jurisdictions of board and department, 1966 -68, p 610.

LAW REVIEW CITATIONS: 12 OLR 109; 31 OLR 28; 45

OLR 40-64; 1 WLJ 17.

656.001 to 656.794

NOTES OF DECISIONS

This series extends benefits to persons previously regarded as independent contractors. Berry v. State Ind. Acc. Comm., ( 1964) 238 Or 39, 393 P2d 184.

This law should be liberally construed. Waibel v. StateComp. Dept., ( 1970) 3 Or App 38, 471 P2d 826.

FURTHER CITATIONS: Thomas v. Foglio, ( 1962) 231 Or

187, 371 P2d 693; Boling v. Nork, ( 1962) 232 Or 461, 375 P2d548; Philpott v. State Ind. Acc. Comm., ( 1963) 234 Or 37,

379 P2d 1010; Manning v. State Ind. Acc. Comm., ( 1963)

234 Or 207, 380 P2d 989; Childers v. Schaecher Lbr. Co.,

1963) 234 Or 230, 380 P2d 993; Wimer v. Miller, ( 1963) 235

Or 25, 383 P2d 1005; Memmott v. State Ind. Acc. Comm.,

1963) 235 Or 360, 385 P2d 188; Hadeed v. Willamette Hi- Grade Concrete Co., ( 1964) 238 Or 513, 395 P2d 553; Mason

v. Sutherlin Mach. Works, Inc., ( 1965) 240 Or 51, 399 P2d

1016; Shoemaker v. Johnson, ( 1965) 241 Or 511, 407 P2d 257;

Didier v. State Ind. Acc. Comm., ( 1966) 243 Or 460, 414 P2d

325; Syler v. State Ind. Acc. Comm., ( 1966) 244 Or 541, 419

P2d 411; Long v. State Ind. Acc. Comm., ( 1967) 246 Or 187,

424 P2d 236; Williamson v. Western-Pac. Dredging Corp., 1969) 304 F Supp 509; Brennan v. Schmidt Bros. Farms, 1970) 3 Or App 46, 471 P2d 819.

ATTY. GEN. OPINIONS: Funding of vocational rehabilitation, 1958 -60, p 30; fixing wage for compensation not incash, 1962 -64, p 111; crediting interest on invested funds, 1964 -66, p 31; department or board jurisdiction over rehabilitation of workmen injured prior to 1966, 1966 -68, p 610.

LAW REVIEW CITATIONS. 40 OLR 292.

656.002

NOTES OF DECISIONS

1. In general

1) Under former similar statute

2. Beneficiaries


3. Child


4. Claim

5. Compensable injury1) Arising out of and in the course of employment2) Pleading and proof

6. Compensable injury under former similar statute1) In general

2) Arising out of and in the course of employment, generally

a) Causal connection of injury to employmentb) Outside the scope of usual duties

c) Outside regular working hoursd) Going to and from worke) Personal acts of employe

3) Injury by accident4) Diseases, infections and poisoning5) Preexisting and acquired diseases of employe6) Pleading and proof7) Questions of law and fact

7. Dependent


8. Employer


9. Workman


1. In general

1) Under former similar statute. The word " employment" used in the workmen's compensation law, was construedin its popular significance. Lamm v. Silver Falls Timber

Co., ( 1930) 133 Or 468, 277 P 91, 286 P 527, 291 P 375.

2. Beneficiaries

L) Under former similar statute. It was a question of

fact for the trial court whether a deceased workman' s wife

deserted him within the meaning of the statute. Stark v. Ind. Acc. Comm., ( 1922) 103 Or 80, 204 P 151.

Surviving relatives within the class named in the statuteto whose living deceased employe contributed, and whorelied partially or wholly on him for support, were beneficiaries. Paul v. Ind. Acc. Comm., ( 1928) 127 Or 599, 272 P267, 273 P 337.

The terms " widow" and " surviving spouse" were giventheir usual, ordinary meaning, and included a woman whomarried a workman after he received fatal injuries. Rosell

v. Ind. Acc. Comm., ( 1939) 163 Or 173, 95 P2d 726.

To constitute desertion, absence of a wife from her hus-

band had to be against his will, wish and consent. Vaderv. Ind. Acc. Comm., ( 1940) 163 Or 492, 98 P2d 714.

3. Child

Dependency is determined as of the date of the accident. Housley v. Everts' Commercial Trans., Inc., (1970) 4 Or App80, 475 P2d 977, Sup Ct review denied.

The question of whether or not claimants are dependent

is one of fact. Id.

1) Under former similar statute. Children born subse-

quent to an injury were not included within sections providing for increased monthly payments where the injuredworkman had children. State v. Ind. Acc. Comm., ( 1925)

115 Or 484, 237 P 680.

4. Claim

Employers filing of an incomplete form reporting workman' s injury was not a claim under this section. Printz v. State Comp. Dept., ( 1969) 253 Or 148, 453 P2d 665.

5. Compensable Injury1) Arising out of and in the course of employment. An

injury sustained on a highway is in the course of employment if the highway must necessarily be used to leave theemployer' s premises and the workmen are exposed to haz-

ards of the highway to a greater extent than the commonpublic. Montgomery v. State Ind. Acc. Comm., ( 1960) 224

Or 380, 356 P2d 524; Willis v. State Acc. Ins. Fund, ( 1970)

3 Or App 565, 475 P2d 986. Accident must be a material contributing cause of injured

workman' s condition. Lemons v. State Comp. Dept., ( 1970)

2 Or App 128, 467 P2d 128. In a complex case, the causal connection between the

accident and the injury must-be shown by expert medicaltestimony. Id.

If the happening of an accident delays the diagnosis of

644

is

SUPERSEDED

C a preexisting disease with the result that the disease is nottreated as promptly as it otherwise would have been, theinjured workman is entitled to compensation for the physi-

cal consequences to him of the delay in treatment for thedisease. Waibel v. State Comp. Dept., ( 1970) 3 Or App 38, 471 P2d 826.

A compensable injury occurs when an accidental injuryaccelerates or aggravates a preexisting condition, causing

disability or death. Sowell v. Workmen' s Comp. Bd., ( 1970)

2 Or App 545, 470 P2d 953. Aggravation by industrial accident of a pre-existing-con-

dition is compensable. Watson v. Georgia -Pac. Corp., ( 1970) 5 Or App 353, 478 P2d 431.

Medical causation is present if the work - related stresses

or exertion were a material contributing factor in producingthe heart attack. Youngren v. State Ace. Ins. Fund, ( 1971)

92 Or App Adv Sh 1769, 487 P2d 107, Sup Ct review denied. Plaintiff suffered an accidental injury when his heart

condition was aggravated as a result of unusual exertion

in the course of his employment. Kinney v. State Ind. Ace. Comm., ( 1967) 245 Or 543, 423 P2d 186; Lorentzen v. State

Comp. Dept., ( 1968) 251 Or 92, 444 P2d 946.

Evidence supported determination that injury arose outof and in the course of employment. Adams v. State Comp. Dept., ( 1968) 249 Or 530, 439 P2d 628; Satterfield v. State

Comp. Dept., ( 1970) 1 Or App 524, 465 P2d 239; Willis v. State Ace. Ins. Fund, ( 1970) 3 Or App 565, 475 P2d 986.

The work activity was not a material contributing factorin producing the injury. Grandell v. Roseburg Lbr. Co., 1968) 251 Or 88, 444 P2d 944; Mayes v. State Comp. Dept., 1969) 1 Or App 234, 461 P2d 841; Youngren v. State Ace.

Ins. Fund, ( 1971) 92 Or App Adv Sh 1769, 487 P2d 107, SupCt review denied.

An employe who was injured off the employer's premises

during a paid coffee break suffered an injury arising outof and in the course of employment. Jordan v. Western Elec. Co., ( 1970) 1 Or App 441, 463 P2d 598.

Where a trip serves both a business and a personal purpose an injury during the course thereof may arise out ofand in the course of employment if someone sometime

would have had to make the trip to carry out the businessmission. Rosencrantz v. Ins. Serv. Co., ( 1970) 2 Or App 225, 467 P2d 664.

2) Pleading and proof. In a heart case, the test for determining medical causation is whether stress' or exertionconnected with decedent' s job was a material contributingfactor of the fatal heart attack. Coday v. Willamette Tug

Barge, ( 1968) 250 Or 39, 440 P2d 224; Mayes v. State

Comp. Dept., ( 1969) 1 Or App 234, 461 P2d 841. In a heart disease case, it is not necessary that claimant

show he exerted unusual strain in carrying out his job, butclaimant's usual exertion in his employment is enough to

establish the necessary legal causal connection. Sahnow v. Fireman' s Fund•Ins. Co., ( 1970) 3 Or App 164, 470 P2d 378, Sup Ct review allowed; Svatos v. Pac. N.W. Bell Tel. Co.,

1970) 4 Or App 396, 478 P2d 648, Sup Ct review denied. In determining if an employe with previously weakened

heart suffers compensable injury, the test is whether theemployment contribution takes the form of an exertion

greater than that of his nonemployment life. Fagaly y. StateAce. Ins. Fund, ( 1970) 3 Or App 270, 471 P2d 441, Sup Ctreview denied; State v. Schulman, ( 1971) 92 Or App AdvSh 1505, 485 P2d 1252, Sup Ct review denied. But see Ander- son v. State Ace. Ins. Fund, ( 1971) 5 Or App 580, 485 P2d1236.

A claimant must prove by a preponderance of the evidence that he or his decedent sustained a compensable

injury. Swanson v. Westport Lbr. Co., ( 1971) 4 Or App 417, 479 P2d 1005; Cardwell v. State Ace. Ins. Fund, ( 1971) 92

Or App Adv Sh 1649, 486 P2d 587, Sup Ct review denied. Evidence was sufficient to show medical and legal causa-

tion for a claim based on fatal heart attack. Fagaly v. State

656.002

Ace. Ins. Fund, ( 1970) 3 Or App 270, 471 P2d 441, Sup Ctreview denied.

6. Compensable injury under. former simllar statute1) In general. A claim for increased compensation was

of the same dignity as the right to receive compensationin the first instance, by reason of the statute. Chebot v. Ind. Ace. Comm., (1923) 106 Or 660, 212 P 792.

Recovery from his employer subject to the law was notallowed an employe, unless the employe brought himself

within one of the exceptions to the law. Bigby v. PelicanBay Lbr. Co., ( 1944) 173 Or 682, 147 P2d 199.

The words " in lieu of all claims" precluded not only theinjured workman or the named beneficiaries but everyone

else from bringing an action for damages against the employer who had complied with the law. Id.

The state was an " employer" within the meaning of thestatute. McLean v. Ind. Ace. Comm., ( 1950) 189 Or 405, 221

P2d 566.

Any workman who undesignedly and unexpectedly suffered an injury, without reference to whether the cause ofthe injury itself was accidental, was included within thestatute. Olson v. State Ind. Ace. Comm., ( 1960) 222 Or 407,

352 P2d 1096.

Workman' s beneficiaries were allowed recovery for deathresulting from coronary occlusion upon showing workmanwas performing even slight activity. Id.

2) Arising out of and In the course of employment, generally. A conjunctive use was given the words " arisingout of and in the course of employment" in the statute and

both conditions had to be satisfied before compensation

could be allowed. Blair v. Ind. Ace. Comm., ( 1930) 133 Or

450, 288 P 204; Larsen v. Ind. Ace. Comm., ( 1931) 135 Or

137, 295 P 195; Collins v. Troy Laundry Co., ( 1931) 135 Or

580, 297 P 334.

A broad and liberal construction was given the words

arising out of and in the course of his employment." Bradyv. Ore. Lbr. Co., ( 1926) 117 Or 188, 243 P 96, 45 ALR 812.

The doing of something for the direct benefit of theemployer, at the employe's place of duty and during working hours, were not necessary elements in order to entitlean injured employe to compensation. Lamm v. Silver Falls

Tbr. Co., ( 1930) 133 Or 468, 277 P 91, 286 P 527, 291 P 375.

Where the injury was sustained upon the premises of theemployer and was a rational consequence of some hazard

connected with the employment, it arose out of and incourse of employment. Id.

The common law definitions of the phrase " an accident

arising in the scope of the employment" were not givencontrolling effect in determining whether the injuries werecompensable. Id.

The negligence or wrongful act of an employer was not

essential to the right of an injured workman under the

statute, but rather his right was based wholly upon the factof employment. McDonough v. Nat. Hosp. Assn., ( 1930) 134Or 451, 294 P 351.

The words " out of" were construed to point to the origin

or cause of the accident, whereas the words " in the course

of pointed to the time, place and circumstances under

which the accident took place; the former were descriptive

of the character or quality of the accident, while the latterrelated to the circumstances under which an accident of

that character or quality took place. Larsen v. Ind. Ace. Comm., ( 1931) 135 Or 137, 295 P 195.

The intendment of the workmen' s compensation law was

less restrictive than the common -law definition of the scope

of employment. Hovedsgaard v. Grand Rapids Store Equip. Corp., (1931) 138 Or 39, 5 P2d 86.

An employe injured by a coemploye " out of and in thecourse of employment" had no common -law action against

the coemploye but had to pursue her remedy for workmen's

645

SUPERSEDED

656.002

compensation. Kowcun v. Bybee, ( 1947) 182 Or 271, 186 P2d

790.

Jury finding that injuries did not arise out of and incourse of employment was affirmed where employe was

injured in accident while returning from dealers' meetingand was not being paid for his time, was not required toattend and would not otherwise have been working. Ram - seth v. Maycock, ( 1956) 209 Or 66, 304 P2d 415.

Use of boat for transportation to job which required useof a boat was performance of service for employer and

accidental death en route arose out of and in the course

of employment. King v. State Ind. Acc. Comm., ( 1957) 211

Or 40, 309 P2d 159, 315 P2d 148, 318 P2d 282. Distinguished

in Philpott v. State Ind. Acc. Comm., ( 1963) 234 Or 37, 379

P2d 1010.

a) Causal connection of injury to employment. For apersonal injury to arise out of and in the course of theemployment, there had to be some connection between the

injury and the employment other than the mere fact thatthe employment brought the injured party to the place ofinjury and there had to be- a causal connection betweenthe employment and the injury which had its origin in arisk connected with the employment, and flowed from that

source as a rational and natural consequence. Blair v. Ind. Acc. Comm, ( 1930) 133 Or 450, 288 P 204.

Before an accident could be said to arise out of the em-

ployment, the injury had to be, directly traceable to thenature of the work or to some risk to which the employer's

business exposed the employe; the risk had to be reasonablyincidental to the employment. Larsen v. Ind. Acc. Comm.,

1931) 135 Or 137, 295 P 195.

The fact that the cancerous condition of the employe

injured during logging operations contributed in measureto his death did not defeat a claim for compensation bythe widow, as a causal connection was shown. Baker v.

Ind. Acc. Comm., ( 1929) 128 Or 369, 274 P 905.

An abrasion of the heel of a chainman from the heavyboots worn was an injury arising out of his employment. Huntley v. Ind. Acc. Comm., ( 1931) 138 Or 184, 6 P2d 209.

b) Outside the scope of usual duties. An employe directed

by his manager to transport horses belonging to the employe's wife, to be hired by the manager's company, wasinjured in the course of his employment when struck byan automobile while extricating the horses from an overturned truck in which they were being transported. Reyn- olds v. Ind. Acc. Comm., ( 1932) 141 Or 197, 16 P2d 1105.

A state highway fence crew foreman's death by accidentwhile riding in a subordinate' s automobile to the districtengineer' s office with weekly report arose out of and inthe course of employment. Munson v. Ind. Acc. Comm.,

1933) 142 Or 252, 20 P2d 229.

c) Outside regular working hours. An injury to an employe struck by a car driven by a coemploye as she walkedto her car after work, taking place on the parking lot provided by the company, arose " out of and in the course ofemployment," entitling the employe to compensation. Kowcun v. Bybee, ( 1947) 182 Or 271, 186 P2d 790.

An injury received by an employe, while seated for hisnoon lunch, was received in the course of his employment.

Zurich Gen. Acc. & Liab. Ins. Co. v. Brunson, ( 1926) 15 F2d

906.

Where an employe, clearing land on a mountain, whileseated on the mountain side to eat his noon lunch, acciden-

tally cut his leg with a knife in attempting to cut a twig, and in replacing his boot after the injury lost his balanceand fell into a fire, his injuries were received in the courseof his employment. Id.

d) Going to and from work. The mere fact that aworkman was going to or returning from his place of employment at the time of the injury did not render the injurycompensable. Hopkins v. Ind. Acc. Comm., ( 1938) 160 Or

95, 83 P2d 487.

A logger injured by freezing while going from a campclosed for the season, was not within the compensation law.

Brady v. Ore. Lbr. Co., ( 1926) 117 Or 188, 243 p 96, 45 ALR812.

Where a conveyance was furnished by the employer asan incident of the contract of employment, an employe

injured while being conveyed to or from his work thereinwas generally entitled to compensation. Lamm v. SilverFalls Tbr. Co., ( 1930) 133 Or 468, 277 P 91, 286 P 527, 291P 375.

An injury upon a road leading to a plant which thecontract of employment contemplated the workmen should

use was generally regarded to arise in the course of employment; that it was a public road was immaterial, provided the demands of employment exposed the injured manto hazards in a greater degree than the common public.

Id.

Although an employe was not to commence work until

the next morning, an injury received by him on the employer' s logging train while returning to camp after several dayslayoff, arose in the course of employment. Id.

The fact that no remittances to the Industrial Accident

Fund for the time consumed by the employe in travelingwere made by the employer would not bar an employe'scompensation for an injury while traveling to work. Id.

Where after spending a couple of days in a city on personal business an employe was injured while returning toa logging camp upon a gasoline speeder operated by hiscompany, the injury arose in the course of employment. Varrelman v. Flora Logging Co., ( 1930) 133 Or 541, 277 P97, 286 P 541, 290 P 751.

An injury while riding in a fellow employe' s automobile, occurring shortly before work in an attempt to park theautomobile on a platform not belonging to the employer, did not arise out of or in course of employment, where theduties of the employe did not require him to go upon theplatform as part of his work Larsen v. Ind. Acc. Comm., 1931) 135 Or 137, 295 P 195.

An injury from falling over an obstruction created by theemployer on the sidewalk, while leaving the employer'sbuilding, did not arise ' but of and in the course of employment." Collins v. Troy Laundry Co., ( 1931) 135 Or 580, 297

P 334.

Because he was accompanied by his foreman, who wascarrying a weekly work report to his superior at the timeof the accident, injuries to a state highway employe whileon his way home from work did not arise out of and inthe course of his employment. March v. Ind. Acc. Comm.,

1933) 142 Or 246, 20 P2d 227.

Where another employe was transporting a fellow employe home from work in the former's truck, evidence did

not show as a matter of law that the injury sustained bythe latter arose in the course of employment. Younger v. Gallagher, ( 1933) 145 Or 63, 26 P2d 783.

An employe was entitled to compensation for injuries

incurred while going to or from work on travel time paidfor by the employer. Livingston v. State Ind. Acc. Comm., 1954) 200 Or 468, 266 P2d 684.

Plaintiff, injured when struck by defendant' s auto onemployer's premises while plaintiff was on way to workand defendant on way to change clothes, was entitled tocompensation but no recovery against the defendant. Stoutv. Derringer, ( 1959) 216 Or 1, 337 P2d 357.

An injury did not arise out of and in the course of employment when it occurred as plaintiff, a contract hauler,

left home in. his truck to drive to employer's landing. Phil - pott v. State Ind. Acc. Comm., ( 1963) 234 Or 37, 379 P2d

1010.

A trip to and from the claimant' s home was not in thecourse of employment unless a business purpose led to

the trip or a business activity was actually being carried

646

C

l u

SUPERSEDED

on. White v. State Ind. Acc. Comm., ( 1964) 236 Or 444, 389

P2d 310.

e) Personal acts of employe. Necessary incidents of lifedid not suspend the employment relation. Zurich Gen. Acc.

Liab. Ins. Co. v. Brunson, ( 1926) 15 172d 906.

An injury to an employe at play was compensable as anaccident arising out of and in the course of employment. Stark v. Ind. Acc. Comm., ( 1922) 103 Or 80, 204 P 151.

An injury in play with an air hose during working hourswas an accidental injury caused by a violent external meansand arose out of and in the course of employment. Id.

3) Injury by accident. The word " accident," as used in

the statute, was taken in its popular and ordinary senseand denoted or included any unexpected personal injuryresulting to the workman in the course of his employmentfrom any unlooked for mishap or occurrence. Blair v. Ind. Acc. Comm., ( 1930) 133 Or 450, 288 P 204.

That the results were accidental was not sufficient; Ore-

gon was committed to the doctrine that it was necessarythat the injury be caused by accidental means. Demagalskiv. Ind. Acc. Comm., ( 1935) 151 Or 251, 47 P2d 947.

Violent or external means as the cause of the accident

was essential. Ramsey v. Ind. Acc. Comm., ( 1938) 159 Or

43, 77 P2d 1109.

If an employe was actually frozen while engaged in performance of his contract of service with employer, such

freezing was deemed an " accident," within the law. Bradyv. Ore. Lbr. Co., ( 1926) 117 Or 188, 243 P 96, 45 ALR 812.

Where deceased was performing usual duties in usualmanner during which no mischance, slip or mishap occurredin doing of the acts themselves and which did not bringhim in contact with any external object or force, a resultinginjury was not sustained by accident. Demagalski v. Ind. Acc. Comm., ( 1935) 151 Or 251, 47 P2d 947.

4) Diseases, infections and poisoning. A finding thatpneumonia resulted from bruises on the employe' s leg received in the course of employment was sustained by theevidence. Robertson v. Ind. Acc. Comm., ( 1925) 114 Or 394,

235 P 684.

Typhoid fever, causing death, contracted from drinkingwater from a river while constructing a bridge, there beingno evidence that the water was furnished to decedent for

drinking purposes or that he was obliged to drink the samewhile engaged in work upon the bridge, was not a com-

pensable accidental injury. Blair v. Ind. Acc. Comm., ( 1930)

133 Or 450, 288 P 204.

Poison -oak poisoning arising out of and in the courseof employment was compensable. Banister v. Ind. Acc. Comm., ( 1933) 142 Or 97, 19 P2d 403.

A rash caused by arsenic spray used by orchardist wasan occupational disease. Ryan v. Ind. Acc. Comm., ( 1936)

154 Or 563, 61 P2d 426.

5) Preexisting and acquired diseases of employe. Whether directly causing it, lighting up, aggravating, oraccelerating a diseased condition, the resulting disabilityor death was chargeable to the accident. Armstrong v. Ind. Acc. Comm., ( 1934) 146 Or 569, 31 P2d 186.

Where a preexisting heart disease was aggravated andaccelerated by an accidental injury and proximately causeddisability or death, compensation was allowable. Id.

A cerebral hemorrhage caused by the rapid activity necessary to catch pheasants, as required by the job of thedeceased, acting concurrently with a diseased condition, was not an accidental injury. Demagalski v. Ind. Acc. Comm., ( 1935) 151 Or 251, 47 P2d 947.

Articular rheumatism although to some degree precipi-

tated by the workman's occupation was not an injury sustained through accident caused by violent or externalmeans. Ramsey v. Ind. Acc. Comm., ( 1938) 159 Or 43, 77

P2d 1109.

6) Pleading and proof. Plaintiff had to prove that the

656.002

injury arose out of and in the course of his employment. Younger v. Gallagher, ( 1933) 145 Or 63, 26 P2d 783.

That he was an employe and not an independent con-

tractor had to be shown by the one seeking compensation. Vient v. Ind. Acc. Comm., ( 1927) 123 Or 334, 262 P 250.

7) Questions of law and fact. Whether an injury aroseout of and in the course of employment was a mixed ques-

tion of law and fact. Stark v. Ind. Acc. Comm., ( 1922) 103

Or 80, 204 P 151.

7. Dependent

1) Under former similar statute. The wife and children

of a marriage celebrated after the occurrence of the injurywere not dependents. Casaday v. Ind. Acc. Comm., ( 1926)

116 Or 656, 242 P 598.

The time as of which to determine who were dependentswas the date of the fatal accident. Paul v. Ind. Acc. Comm., 1928) 127 Or 599, 273 P 267, 273 P 337.

It was a question of fact whether or not claimants weredependents" within this section. Id.

Dependency in fact upon the contributions of the deceased employe in order to live in comfort according tomanner of living of people of their condition in life wasnecessary to make relatives " dependents" within the statute. Id.

That dependents could exist without the deceased' s earn-

ings did not prevent a recovery as dependents. Id. The cost of maintenance of the person contributing had

to be exceeded by his contribution to make it a contributionto the support of the family within the statute. Id.

Sums as investments or speculations given by a son toa family were not contributions to the support of the familywithin the statute. Id.

Where paying a family' s indebtedness was the sole purpose of a contribution by an unmarried son, the family wasnot " dependent" upon the son, although such debts might

have rendered it necessary for the family to depend uponhim for support. Id.

Instructions for determining whether or not claimantswere dependents of the decedent within the law had to be

given to the jury. Id. The workmen's compensation law precluded the mother

of a deceased workman who was not dependent upon his

earnings in whole or in part from maintaining an actionfor damages for his death under the employers' liability law. Bigby v. Pelican Bay Lbr. Co., ( 1944) 173 Or 682, 147 P2d

199.

S. Employer

1) Under former similar statute. It was not necessarythat the person having the right to control exercise thatright in every particular. Whitlock v. State Ind. Acc. Comm., 1962) 233 Or 166, 377 P2d 148; Bauer v. Richardson, ( 1970)

3 Or App 578, 475 P2d 995. The state was an " employer" within the meaning of the

statute. McLean v. Ind. Acc. Comm., ( 1950) 189 Or 405, 221

P2d 566.

The true test for an " employer" under the statute was

his right to control an employe. Hams v. Ind. Acc. Comm., 1951) 191 Or 254, 230 P2d 175.

Payment of wages was not decisive in determining theexistence or identity of an " employer." Id.

The true nature of the contract as to right of control,

where not expressed, had to be ascertained by the application of many secondary tests. Butts v. Ind. Acc. Comm.,

1951) 193 Or 417, 239 P2d 238. Employers " subject to The Workmen' s Compensation

Act" can only mean those who have elected coverage underthe Act. Cariston v. Greenstein, ( 1970) 256 Or 145, 471 P2d806.

647

SUPERSEDED

656. 004

9. Workman

1) Under former similar statute. Whether one of a crew

of four ,men operating a small sawmill was an employe ofthe mill owners within the law was a question for jury. Farrin v. Ind. Ace. Comm., ( 1922) 104 Or 452, 205 P 984.

One performing under a contract to do grading work ona railroad was held an " independent contractor" and not

a " workman" Anderson v. Ind. Ace. Comm., ( 1923) 107 Or

304, 215 P 582.

A painter under contract was held a " workman" and not

an " independent contractor." Streby v. Ind. Ace. Comm., 1923) 107 Or 314, 215 P 586.

One delivering crushed rock under contract was an independent contractor. Landberg v. Ind. Ace. Comm., ( 1923)

107 Or 498, 215 P 594.

A finding that a claimant doing a general blacksmithingbusiness was a workman while repairing a stone - crushercould not be disturbed under the evidence. Van Koten v.

Ind. Ace. Comm., ( 1924) 110 Or 574, 223 P 945.

A holder of an employment card from an employment

agency was not an employe but an invitee. Wells v. ClarkWilson Lbr. Co., ( 1925) 114 Or 297, 235 P 283.

The burden of proof was on one seeking compensationto prove that he was an employe. Vient v. Ind. Ace. Comm.,

1927) 123 Or 334, 262 P 250.

For one assisting in the transportation of horses to behired by his company to have been an employe of thatcompany at the time, he must have been working subjectto the complete direction and control of the company. Reynolds v. Ind. Ace. Comm., ( 1932) 141 Or 197, 16 P2d

1105.

There had to be a contract of hire in order that an injurybe compensable, one who gratuitously performed work wasnot an employe within the law. Smith v. State Ind. Ace.

Comm., ( 1933) 144 Or 480, 23 P2d 904, 25 P2d 1119. Distin-

guished In Whitlock v. State Ind. Ace. Comm., ( 1962) 233

Or 166, 377 P2d 148.

An injury to a lodge member who was engaged, withoutcompensation, in the construction of a building for thelodge was not compensable. Id.

A log hauler who furnished his own truck and who waspaid stated prices per thousand, but who performed nospecific piece of work, who hauled loads selected and loaded

by the company to destinations designated for him, whoworked exclusively for the company and who could quitor be discharged without legal liability on either party, wasan employe and not an independent contractor. Bowser v.

Ind. Ace. Comm., ( 1947) 182 Or 42, 185 P2d 891.

A well drill operator who shared profits with the owner

and had complete control over the operation was not a

workman within the statute. Fenton v. State Ind. Ace. Comm., ( 1953) 199 Or 668, 264 P2d 1037.

A minor employed without a work permit was covered

by Workmen's Compensation Act, however, his estate couldnot recover from employer but was limited to benefits

provided by the Act. Manke v. Nehalem Logging Co., ( 1957) 211 Or 211, 301 P2d 192, 315 P2d 539.

Payment of remuneration for the employe' s services did

not necessarily need to be made to the employe. Whitlockv. State Ind. Ace. Comm., ( 1962) 233 Or 166, 377 P2d 148.

The test is the right to direct or control, not the exercise

of the right. Bauer v. Richardson, ( 1970) 3 Or App 578, 475P2d 995.

FURTHER CITATIONS: Warner v. Synnes, ( 1925) 114 Or

451, 230 P 362, 235 P 305, 44 ALR 904; Nixon v. HawleyPulp & Paper Co., ( 1935) 149 Or 526, 41 P2d 807; Davis v.

Ind. Ace. Comm., ( 1937) 156 Or 393, 64 P2d 1330, 66 P2d

279, 68 P2d 118; Cox v. Ind. Ace. Comm., ( 1942) 168 Or 508,

121 P2d 919, 123 P2d 800; Allen v. State Ind. Ace. Comm.,

1954) 200 Or 521, 265 P2d 1086; State Ind. Ace. Comm. v.

Garreau, ( 1954) 200 Or 594, 267 P2d 661; Burrows v. State

Ind. Ace. Comm., ( 1957) 209 Or 352, 306 P2d 395; Ellis v.

Fallert, ( 1957) 209 Or 406, 307 P2d 283; Ballou v. State Ind. Ace. Comm., ( 1958) 214 Or 123, 328 P2d 137; Zurich Ins.

Co. v. Sigoumey, ( 1960) 278 F2d 826; White v. State Ind. Ace. Comm., ( 1961) 227 Or 306, 362 P2d 302; Davis v.

Weyerhaeuser Co., (1962) 231 Or 596, 373 P2d 985; Memmottv. State Ind. Ace. Comm., ( 1963) 235 Or 360, 385 P2d 188;

Lowe v. Socony Mobil Oil Co., ( 1963) 222 F Supp 624; Mar- ston v. State Comp. Dept., ( 1969) 252 Or 640, 452 P2d 311;

Leech v. Georgia -Pac. Corp., ( 1969) 254 Or 351, 458 P2d 438, 463 P2d 359; Beaudry v. Winchester Plywood Co., ( 1970)

255 Or 503, 469 P2d 25; Barr v. State Comp. Dept., ( 1970)

1 Or App 432, 463 P2d 871; Granato v. Portland, ( 1971) 5Or App 570, 485 P2d 1115; Leech v. Georgia -Pac. Corp.,

1971) 259 Or 161, 485 P2d 1195.

ATTY. GEN. OPINIONS: Illegitimate child as beneficiary, 1930 -32, p 28; definitions of "employ," " employe," " employ-

er," and " workman," 1936 -38, p 94; divorce of mother andstepfather as disqualifying stepchildren from receivingaward, 1938 -40, p 216; status of person working out finefor city ordinance violation, 1938 -40, p 295; when timberowner who employs others is an " employer," 1940 -42, p 124; injury to employe transported to and from home by employer as arising within employment, 1942 -44, p 473; extrawages paid to an employe based on ,a percentage of the

profits of the employer as wages, 1944 -46, p 107; status ofcarpenters working for a school district, 1944 -46, p 295; county clerks, treasurers, judges, commissioners and asses- sors as workmen, 1948 -50, p 20; segregating additionalcompensation payable to injured workman among beneficiaries, 1956 -58, p 186; compulsory or voluntary contributions by judges of state courts, 1960 -62, p 7; justices andjudges as workmen, 1960 -62, p 7; status of sheep shearersunder the Act, 1960 -62, p 136; public officer receiving disability compensation and statutory salary, 1960 -62, p 203; coverage of volunteer worker, 1960 -62, p 262; persons whobuck and snag logs under contract with state as employes, 1960 -62, p 234; participants in summer camp program, 1962 -64, p 103; rating wage for compensation not in cash, 1962 -64, p I11; school district as employer, 1962 -64, p 255.


OLR 35, 85, 91; 45 OLR 43, 44, 57; 48 OLR 116; 1 WLJ

620 -622; 2 WLJ 9, 2426, 75 -81, 82 -85, 90, 93 -95, 6 WLJ 621- 626.

656.004

NOTES OF DECISIONS

A withdrawal from interference by the courts of all questions relating to workmen's compensation, so far as practicable, subject to the right of appeal, was intended by thislaw. Chebot v. Ind. Ace. Comm., ( 1923) 106 Or 660, 212 P792.

Industrial enterprises are considered hazardous occupations. Bennett v. State Ind. Ace. Comm., ( 1955) 203 Or 275, 279 P2d 655, 279 P2d 886.

The purpose of this Act is to define the rights and liabilities of employers and their employes who have sustainedinjuries in the course of their employment. Winter v. Miller,

1963) 235 Or 25, 383 P2d 1005.

The degree of certainty brought by the Act into this phaseof industrial relations was intended to benefit the publicas a whole by reducing the volume of litigation and thusdiminish the cost to the taxpayer. Id.

FURTHER CITATIONS: Plummer v. Donald M. Drake Co., 1958) 212 Or 430, 320 P2d 245; Shoemaker v. Johnson, ( 1965)

241 Or 511, 407 P2d 257.

648

is

J1J

SUPERSEDED

ATTY. GEN. OPINIONS: As discharging certain socio- economic functions of the state, 1962 -64, p 72.


65 &016

NOTES OF DECISIONS

In a case involving successive injuries and carriers, if thesecond accident is the primary cause of the second injuryand claim, the carrier at the time of the second accident

is liable. Cutright v. Am. Ship Dismantler, (1971) 92 Or AppAdv Sh 1687, 486 P2d 591.

FURTHER CITATIONS: Granato v. Portland, ( 1971) 5 Or

App 570, 485 P2d 1115.

65 &018

NOTES OF DECISIONS

1. In general

Employers not covered as workmen under ORS 656. 128

are not subject to the " exclusive remedy" provisions of thissection. Reynolds v. Harbert, ( 1962) 232 Or 461, 375 P2d

548. Distinguished in Leech v. Georgia -Pac. Corp., ( 1971)

259 Or 161, 485 P2d 1195.

The Workmen's Compensation Act is in lieu of all claims,

not merely claims by named beneficiaries, under the Act. Leech v. Georgia -Pac. Corp., (1971) 259 Or 161, 485 P2d 1195.


The words " in lieu of all claims" preclude not only theinjured workman or the named beneficiaries but anyone

else from bringing an action for damages against the employer who has complied with the law. Ellis v. Fallert, (1957)

209 Or 406, 307 P2d 283. Contra, Biddle v. Edward Hines

Lbr. Co., ( 1962) 219 F Supp 69. A minor- employed without a work permit was covered

by Workmen's Compensation Act and his estate could notrecover from employer but was limited to benefits provided

by the Act. Manke v. Nehalem Logging Co., ( 1957) 211 Or

211, 301 P2d 192, 315 P2d 539.

Plaintiff, who had received an award from the State

Industrial Accident Commission, could not bring actionagainst employer on theory that it was not shown plaintiffwas employed by an employer subject to the Workmen' sCompensation Act Bandy v. Norris. Beggs and Simpson. 1959) 222 Or 1, 342. P2d 839. Distinguished in Johnson v.

Dave's Auto Center, Inc., ( 1970) 257 Or 34, 476 P2d 190.

Once the finding as to employe- employer relationship ismade by the tribunal entrusted with that duty, the decisionis final and conclusive until set aside. Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839.

FURTHER CITATIONS: Peterson v. Culp, (1970) 255 Or 569, 465 P2d 876; Granato v. Portland, ( 1971) 5. Or App 570, 485P2d 1115.


656.020

CASE CITATIONS: Peterson v. Culp, ( 1970) 255 Or 269, 465P2d 876.

658.023

CASE CITATIONS: Pre -1965 Act: Bennett v: State Ind. Acc. Comm., ( 1955) 203 Or 275, 279 P2d 655, 279 P2d 886; Bos

v. State Ind. Acc. Comm., ( 1957) 211 Or 138, 315 P2d 172;

Butler v. State Ind. Acc. Comm., ( 1957) 212 Or 330, 318 P2d

303; Hahn v. Ross Island Sand & Gravel Co., ( 1959) 358

656.027

US 272, 79 S Ct 266, 3 L Ed 2d 292; Nadeau v. Power Plant

Engr. Co., ( 1959) 216 Or 12, 337 P2d 313; Manning v. StateInd. Acc. Comm., ( 1963) 234 Or 207, 380 P2d 989; Memmott

v. State Ind. Acc. Comm., ( 1963) 235 Or 360, 385 P2d 188;

Lowe v. Socony Mobil Oil Co., ( 1963) 222 F Supp 624; Colvinv. Weyerhaeuser Co., ( 1964) 229 F Supp 1022; Westfall v. Tilley, ( 1970) 4 Or App 9, 476 P2d 797.

ATTY. GEN. OPINIONS: Compulsory or voluntary contributions by judges of state courts, 1960 -62, p 27; right toreceive both sick leave and workmen's compensation,

1962 -64, p 255.

LAW REVIEW CITATIONS: 37 OLR 86, 87; 46 OLR 343; 1 WLJ 1 - 144; 2 WLJ 27.

656.027

NOTES OF DECISIONS

1. In general


1) In general

2) Particular employments

3) Particular workmen

1. In general

Under subsection (4), benefits of the Act are not available

if the workman is a seaman. Williamson v. Western -Pac.

Dredging Corp., ( 1969) 304 F Supp 509. Claimant was a covered employe on January 7, 1967.

Brennan v. Schmidt Bros. Farms, ( 1970) 3 Or App 46, 471P2d 819.

Claimant's employment was " casual" but was " in thecourse of the trade, business or profession of his employer."

Bauer v. Richardson„ ( 1970) 3 Or App 578, 475 P2d 995.


1) In general. Suit against his employer was barred toa workman unless he brought himself within an exception

to the law. Lull v. Hansen- Hammond Co., ( 1928) 126 Or

450, 270.P 402.

There had to be a contract of hire and the relation of

master and servant for the workmen' s compensation law

to apply; one who gratuitously performed work was notan employe. within law. Smith .v. Ind. Acc. Comm., ( 1933)

144 Or 480. 23 P2d 904, 25 P2d 1119.

The state was an " employer' within the meaning of thestatute. McLean v. Ind. Acc. Comm., ( 1950) 189 Or 405, 221

P2d 566.

The statute was not applicable when the " principal pur-

pose" of the contract between plaintiff and the companywas not the " performance of labor' but rather the haulingof logs. Butts v. Ind. Acc. Comm., ( 1951) 193 Or 417, 239

P2d 238.

Employers not covered as workmen under ORS 656. 128

were not subject to the " exclusive remedy" provisions offormer ORS 656. 152. Reynolds v. Harbert, ( 1962) 232 Or 461,

375 P2d 548.

The intent of the 1957 amendment was to extend the

benefits of the Act to persons previously regarded as independent contractors. Berry v. State Ind. Acc. Comm., ( 1964)

238 Or 39, 393 P2d 184.

2) Particular employments. A lather not employed bythe contractor and having no, contract of hire was held anindependent contractor." Vient v. Ind. Acc. Comm., ( 1927)

123 Or 334, 262 P 250.

Where farmer engaged neighbor' s son, who had access

to fathers truck, to haul pulp wood to mill at so muchper cord, and hauler employed farmer's son to help, thehauler was an independent contractor, and his helper was

an employe of the hauler and not of the helpers father.

649

SUPERSEDED

656.031

Cox v. Ind. Acc. Comm., ( 1942) 168 Or 508, 121 P2d 919,

123 P2d 800.

A workman devoting 95 percent of time in hazardousoccupation and 5 percent in nonhazardous occupations,

both for the same employer, and who was injured in courseof nonhazardous occupation, was within coverage of

Workmen' s Compensation Law. Bos v. State Ind. Acc.

Comm., ( 1957) 211 Or 138, 315 P2d 172.

3) Particular workmen. Injuries sustained by an engineeremployed on a dredge in work having no relation to navigation, although done on a navigable river, were governed

by the law, and were not within the exclusive admiraltyjurisdiction. Mark v. Portland Gravel Co., ( 1929) 130 Or 11,

278 P 986.

A motor truck driver with a permit as a motor carrierwas a common carrier and hence an independent contractor

rather than a private employe where there was no showingthat he had a special agreement not within his duties as

common carrier. Brothers v. Ind. Acc. Comm., ( 1932) 139

Or 658, 12 P2d 302.

An employe paid by the state to work on a federal government reservation under license to the state was consid-

ered a workman subject to the statute. McLean v. Ind. Acc.

Comm., ( 1950) 189 Or 405, 221 P2d 566.

An officer of a corporation who came within the defini-

tion of a workman did not receive benefits when he failedto file an election to become entitled to compensation as

a workman. Allen v. State Ind. Acc. Comm., ( 1954) 200 Or

521, 265 P2d 1086.


by Workmen' s Compensation Act and his estate could notrecover from employer but was limited to benefits provided


211, 301 P2d 192, 315 P2d 539.

A contract logging truck operator was an employe of thelogger for purposes of the Act. Blaine v. Ross Lbr. Co.,

1960) 224 Or 227, 355 P2d 461.

FURTHER CITATIONS: Shea v. Ind. Acc. Comm., ( 1926)

118 Or 642, 247 P 770; Rickert v. Ind. Acc. Comm., ( 1927)

122 Or 565, 259 P 205, 56 ALR 348; Davis v. Ind. Acc. Comm.,

1937) 156 Or 393, 64 P2d 1330, 66 P2d 279, 68 P2d 118; Didierv. State Ind. Acc. Comm., ( 1966) 243 Or 460, 414 P2d 325.

ATTY. GEN. OPINIONS: Definitions of terms employ, employe, employer, and workman, 1936 -38, p 94; when timberowner who employs others is an " employer," 1940 -42, p 124; coverage of workers in Oregon Industries for the Blind

under workmen's compensation, 1954 -56, p 157; status ofsheep shearers under the Act, 1960 -62, p 136; coverage ofan owner-driver of a logging truck as a workman, 1960 -62, p 151; application to contractors felling snags, 1960 -62, p234.

LAW REVIEW CITATIONS: 30 OLR 269; 37 OLR 86; 1 WLJ

115; 5 WLJ 674 -677.

656.031

ATTY. GEN. OPINIONS: Coverage of state hospital volun-

teer workers, 1960 -62, p 261.


656.033

ATTY. GEN. OPINIONS: Applicability to trainees of OregonState School for the Deaf, 1966 -68, p 449.

656.044

ATTY. GEN. OPINIONS: Eligibility of boommen and rafters

who only build log rafts and have nothing to do with thetransportation to come under the law, 1944 -46, p -140.

656.052

CASE CITATIONS: Lucas v. State Ind. Acc. Comm., ( 1960)

222 Or 420, 353 P2d 223; Oregon Farm Bureau v. Thompson, 1963) 235 Or 162, 378 P2d 568.


656.054

CASE CITATIONS: Bell v. Ind. Acc. Comm., ( 1937) 157 Or

653, 74 P2d 55; Ind. Acc. Comm. v. Goode, ( 1940) 165 Or

237, 106 P2d 296; Oregon Farm Bureau v. Thompson, ( 1963)

235 Or 162, 194, 378 P2d 563, 384 P2d 182.


656.056

CASE CITATIONS: Hollopeter v. Palm, ( 1930) 134 Or 546,

291 P 380, 294 P 1056; Elliott v. Standard Oil Co. of Calif., 1927) 18 F2d 292.

Ia+ ;1li - T -1

NOTES OF DECISIONS

An injury outside the state is not compensable unlessthe employe was hired to perform work within the state

and was only temporarily absent. House v. Ind. Acc. Comm., ( 1941) 167 Or 257, 117 P2d fill.

To be entitled to the protection of the Oregon law, anemploye must have acquired that status within Oregon; where he was hired to serve in California, he was an " employe" in that state. Id.

When a claimant is injured in another state he must

allege and prove facts necessary to show that he was notsubject to the Workmen's Compensation Law of that state

but is not required to plead the laws of that state. Coblentz

v. State Ind. Acc. Comm., ( 1955) 203 Or 258, 279 P2d 503.

Where deceased was hired in Oregon by an Oregon company to manage a California branch, and was injured inthe course of his employment with the California office,

his injury was not compensable under the Oregon law, although the accident occurred in Oregon. House v. Ind.

Acc. Comm., ( 1964) 167 Or 257, 117 P2d 611.

FURTHER CITATIONS: Williamson v. Weyerhaeuser Tor.

Co., ( 1955) 221 F2d 5; Nadeau v. Power Plant Engr. Co.,

1959) 216 Or 12, 337 P2d 313; Davis v. Morrison - Knudsen

Co., ( 1968) 289 F Supp 835; Williamson v. Western-Pac. Dredging Corp., ( 1969) 304 F Supp 509; Place v. Friesen Lbr. Co., ( 1970) 2 Or App 6, 463 P2d 596, rev'd, 258 Or 98, 481P2d 617.

656. 128

NOTES OF DECISIONS

An officer of a corporation within the meaning of thisstatute should at least have some financial interest in the

company and have a voice in its management. Carson v. Ind. Acc. Comm., ( 1936) 152 Or 455, 54 P2d 109.

An employe who permits his name to be used in the

organization of the corporation in order to comply withthe law and who has no financial interest or voice in deter-

mining the policy of the company is not precluded fromreceiving benefits under the statute as an employe. Id.

Although he is a workman within the statutory definition, an officer of a corporation is not entitled to benefits if he

fails to file an election as required by this section. Allen

650

r

SUPERSEDED

r

uv. State Ind. Acc. Comm., ( 1954) 200 Or 521, 265 P2d 1086.

Employers not covered as workmen under this section

are not subject to the " exclusive remedy" provisions of theworkmen' s compensation law. Reynolds v. Harbert, ( 1962)

232 Or 461, 375 P2d 548.

FURTHER CITATIONS: Nordling v. Johnston, ( 1955) 205Or 315, 283 P2d 994, 287 P2d 420; Berry v. State Ind. Acc. Comm., ( 1964) 238 Or 39, 393 P2d 184; Didier v. State Ind.

Acc. Comm., ( 1966) 243 Or 460, 414 P2d 325; Fagaly v. StateAcc. Ins. Fund, ( 1970) 3 Or App 270, 471 P2d 441, Sup Ctreview denied.

ATTY. GEN. OPINIONS: Fact that no workmen were em-

ployed at time of injury as affecting right of employerelecting to come under law to benefit, 1924 -26, p 74; electedcounty officials as " workmen," 1948 -50, p 20; persons whobuck and snag logs under contract with state as employes, 1960 -62, p 234.

656. 132

NOTES OF DECISIONS


by Workmen's Compensation Act and his estate could notrecover from employer but was limited to benefits provided


211, 301 P2d 192, 315 P2d 539.

FURTHER CITATIONS: King v. Union Oil Co., ( 1933) 144

Or 655, 24 P2d 345, 25 P2d 1055.

NOTES OF DECISIONS

1. In general

2. Constitutionality3. Third persons

4. Premises

5. Pickup and delivery6. Proof

See also cases under ORS 656.002, 656.202 and 656.578.

I. In general

Injury" and " workman" should be read to mean aninjury to a workman of a covered employer. Carlston v. Greenstein, ( 1970) 256 Or 145, 471 P2d 806.

2. ConstitutionalityThis section was not considered a violation of Ore. Const.

Art. I, § 10, providing that there shall be a remedy at lawfor injury to person. Atkinson v. Fairview Dairy Farms. 1950) 190 Or 1, 222 P2d 732.

This section did not violate Ore. Const. Art. I, § 20, pro-

viding for equality of privileges and immunities. Plummerv. Drake, (1958) 212 Or 430, 320 P2d 245.

3. Third persons

The defendant or his employe and plaintiffs employer

must actively join in a physical way in carrying on component parts of the particular work which produces the injury: Johnson v. Timber Structures, Inc., ( 1955) 203 Or 670, 281

P2d 723; Fisher v. Rudie Wilhelm Whse. Co., ( 1960) 224 Or

26, 355 P2d 242; Pruett v. Lininger, ( 1960) 224 Or 614, 356

P2d 547; Thomas V. Foglio, ( 1961) 225 Or 540, 358 P2d 1066.

A third -party action is authorized when both employersare covered by workmen' s compensation, unless the twoemployers are engaged in a common enterprise. Pruett v. Lininger, ( 1960) 224 Or 614, 356 P2d 547; Hadeed v. Willam-

ette Hi -Grade Concrete Co., ( 1964) 238 Or 513, 395 P2d 553; Penrose v. Mitchell Bros. Crane Div., Inc., ( 1967) 246 Or

507, 426 P2d 861. Penrose v. Mitchell Bros. Crane Div., Inc.,

656. 154

supra, distinguished In Bass v. Dunthorpe Motor Trans. Co., 1971) 258 Or 409, 484 P2d 319.

This section is a bar to recovery only if plaintiffs employer and the third party have both elected to accept thebenefits of the Act and pay contributions. Blaine v. RossLbr. Co., ( 1960) 244 Or 227, 355 P2d 461; Carlston v. Green-

stein, ( 1970) 256 Or 145, 471 P2d 806; Guggisberg v. Croxton, 1970) 257 Or 52, 476 P2d 182.

This section bars action against third -party employersand their workmen when the third -party employer has jointsupervision and control over the premises. Shoemaker v.

Johnson, ( 1965) 241 Or 511, 407 P2d 257; Cornelison v. Sea - bold, ( 1969) 254 Or 401, 460 P2d 1009.

Compensation for any subsequent injury sustained dueto the malpractice or negligence of the physician while the

injured workman is being treated for the injury first sustained is required to be awarded by the commission [ nowboard] during the time it has jurisdiction over the matter. McDonough v. National Hosp. Assn., ( 1930) 134 Or 451, 294

P 351.

A person hired by a county, working for a county andunder the exclusive direction of a county is not in the sameemploy as one working for the Oregon State College underits exclusive direction and control. Walter v. Turtle, ( 1934)

146 Or 1, 29 P2d 517.

The test of a common enterprise is in what the workmen

were doing at the time of the accident. Fisher v. RudieWilhelm Whse. Co., ( 1960) 224 Or 26, 355 P2d 242.

An employer may be in " charge of work even thoughhe is in charge of an activity which forms only a componentpart of a common enterprise. Thomas v. Foglio, ( 1961) 225

Or 540, 358 P2d 1066.

One who merely leases equipment used in the activityout of which plaintiffs injury occurred is not an employerwithin the meaning of Employers' Liability Law unless hewas participating in the activity. out of which the injuryarose. Id.

Acceptance of benefits under the Act amounts to an

election not to proceed against a third party. Wimer v. Miller, (1963) 235 Or 25, 383 P2d 1005.

A physician attending an injured workman is in the position of a third party under this Act. Id.

When separate employers are in a situation contemplated

by this section, a cause of action against any employer asa third party so situated does not exist regardless of whennegligence occurs that causes the injury on the premisesunder joint supervision and control. Mason v. Sutherlin

Mach. Works, Inc., ( 1965) 240 Or 51, 399 P2d 1016.

For an action to be barred under subsection ( 1), defendant

must show ( 1) that he was an employer subject to the Act;

2) that he or his workmen causing injury had joint supervision and control with the injured workmen's employer

of the premises on which the injury occurred; and ( 3) thathe and the injured workman's employer were engaged inthe furtherance of a common enterprise or in the accom-

plishment of the same or related purposes in operation. Bass

v. Dunthorpe Motor Trans. Co., ( 1971) 258 Or 409, 484 P2d319.

Joint supervision and control" describes a situation

where both employers have control of premises-in the sensethat they have some control of activities which occur there, without regard to the fact that a particular act which causes

injury may be within the exclusive control of the employesof only one of them. Id.

A steamship company stevedore could not maintain anaction against a lumber company for injuries' sustained bythe negligence of an employe- of the latter where the two

companies, having the same stockholders and officers, wereengaged in the furtherance of a common enterprise." In-

wall v. Transpacific Lbr. Co., ( 1940) 165 Or 560, 108 P2d

522.

There was " joint supervision" when the injured employe' s

651

SUPERSEDED

656. 156

duties included the handling of milk in an establishmentowned by a third person. Atkinson v. Fairview Dairy Farms, 1950) 190 Or 1, 222 P2d 732.

When the evidence merely indicated that the plaintiffsemployer was repairing a ship while the defendant wasloading the same vessel, the premises over which the employers had joint supervision was limited to the ship. Kos - mecki v. Portland Stevedoring Co., ( 1950) 190" Or 85, 223

P2d 1035.

The company owning and operating a delivery truck didnot have joint supervision and control of premises with the

owner of the premises in which the truck was makingdeliveries. Johnson v. Tbr. Structures, Inc., ( 1955) 203 Or

670, 281 P2d 723. Distinguished in Fisher v. Rudie WilhelmWhse. Co., ( 1960) 224 Or 26, 355 P2d 242.

Where workman was a boat builder launching a boat atcity dock, action was allowed against city for negligenceof city, where his employer was not engaged in furtheranceof a common enterprise with the city or with the accomplishment of the same or related purposes. Hensler v. Port- land, ( 1957) 212 Or 28, 318 P2d 313.

Log truck driver whose employer was supplying lumbercompany with logs was under joint supervision of his employer and lumber company. Long v. Springfield Lbr. Mills, Inc., ( 1958) 214 Or 231, 327 P2d 421.

There was joint supervision and control over the premises

when plaintiff, employe of lumber company, was injuredwhile helping defendant' s employe load logs on defendant'struck to be taken to lumber company's mill. Claussen v. Ireland, ( 1959) 216 Or 289, 338 P2d 676.

Plaintiff, injured by defendant' s employe, could not bringa third -party action since both employers were engaged inthe common enterprise of getting logs to mills from thetimber area. McGuire v. Brown, ( 1959) 217 Or 300, 342 P2d774.

While unloading steel trusses at a construction job withemployes of the manufacturer of the steel, employes of the

warehouse company delivering the steel 'were engaged ina common enterprise. Fisher v. Rudie Wilhelm Whse. Co.,

1960) 224 Or 26, 355 P2d 242.

The phrase " an employer subject to ORS 656.002 to656.590 fnow ORS 656.001 to 656.794]" did not include anemployer engaged in a hazardous occupation who has re-

jected the benefits of the Act. Blaine v. Ross Lbr. Co., ( 1960)

224 Or 227, 355 P2d 461. The injured employe while engaged with the person

causing the injuries in the performance of component partsof an undertaking on premises occupied by the workmenof both employers was engaged in a common enterprise.

Pruett v. Lininger, ( 1960) 224 Or 614, 356 P2d 547.

4. Premises

Plaintiff stevedore loading cargo from warehouse of defendant with latter's employes was injured on " premises

over which plaintiffs employer and defendant had jointsupervision and control and were engaged in the furtherance of a common enterprise." Hecker v. Crown Mills,

1961) 229 Or 8, 365 P2d 840.

Joint control of the premises was not precluded where

the accident occurred on the improved portion of a public

highway. Layton v. Leep Logging, Inc., ( 1967) 247 Or 580,

430 P2d 1008. There was joint supervision and control over the premises

where the injury occurred. Cogburn v. Roberts Supply Co., 1970) 256 Or 582, 475 P2d 67.

S. Pickup and deliverySubsection ( 3) does not cover logging operations at a

woods landing or mill pond as they are commonly conducted. Boling v. Nork, ( 1962) 232 Or 461, 375 P2d 548; Childersv. Schaecher Lbr. Co., ( 1963) 234 Or 230, 380 P2d 993; Ha-

deed v. Willamette Hi -Grade Concrete Co., ( 1964) 238 Or

513, 395 P2d 553; Patnode v. Carver Elec. & Sign Supplies

Co., ( 1969) 253 Or 89, 453 P2d 675; Gorham v. Swanson,

1969) 253 Or 133, 453 P2d 670.

Subsection ( 3) codifies the rule that ordinary pickup - and- delivery situations do not bring the premises underjoint supervision or control of any employer other than theone upon whose premises the pickup or delivery is beingmade. Boling v. Nork, (1962) 232 Or 461, 375 P2d 548; Greenv. Market Sup. Co., ( 1971) 257 Or 451, 479 P2d 736.

6. Proof

An employer has the burden of proving his identity asa third person who had joint supervision over the place

of injury along with the injured party's employer. Kosmeckiv. Portland Stevedoring Co., ( 1950) 190 Or 85, 223 P2d 1035.

The burden was on defendant lumber company to provethat the wharf upon which an injury to a steamship company employe occurred was under the " joint supervision" of the two companies. Inwall v. Transpacific Lbr. Co., ( 1940)

165 Or 560, 108 P2d 522.

FURTHER CITATIONS: Newell v. Taylor, (1958) 212 Or 522, 321 P2d 294; Stout v. Derringer, ( 1959) 216 Or 1, 337 P2d

357; Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839; Nelson v. Bartley, ( 1960) 222 Or 361, 352 P2d1083; Beers v. Chapman, ( 1962) 230 Or 553, 370 P2d 941;

Bassick v. Portland Gen. Elec. Co., ( 1967) 246 Or 498, 426

P2d 450; St. Paul Fire and Marine Ins. Co. v. United StatesNat Bank, ( 1968) 251 Or 377, 446 P2d 103; Johnson v. Dave' sAuto Center, Inc., ( 1970) 257 Or 34, 476 P2d 190; Leech v.

Georgia -Pac. Corp., ( 1971) 259 Or 161, 485 P2d 1195.

LAW REVIEW CITATIONS: 39 OLR 80, 81, 132, 186 -193;

40 OLR 292; 46 OLR 333 -343; 47 OLR 364; 48 OLR 116; 1WLJ 72, 74; 2 WLJ 52, 54, 55.

656. 156

NOTES OF DECISIONS

1. Injury caused by employerDeliberate intention" implies that the employer must

have determined to injure the employe; mere carelessnessor negligence, however gross, is not sufficient. Jenkins v.

Carman Mfg. Co., ( 1916) 79 Or 448, 155 P 703; Heikkila v.

Ewen Transfer Co., ( 1931) 135 Or 631, 297 P 373; Caline

v. Maede, ( 1964) 239 Or 239, 396 P2d 694.

That the defendant employer singled the plaintiff out with

the express purpose of injuring him need not be provedby the injured employe under this section where the actof the defendant was unlawful and deliberately committedby him with the intention of inflicting injury. Weis v. Allen,

1934) 147 Or 670, 35 P2d 478. Punitive damages are recoverable in a proper case in an

action by an employe against his employer under this statute. Id.

No limit to the amount of recovery on the part of theinjured employe is imposed by this statute, but it createsan additional fund for the payment of a part of the damagesfor injuries sustained. Id.

No election is required by the employe as to whether topursue his remedy under the compensation law or sue atcommon law; he is assured the compensation to which heis entitled under the law, and in addition is granted the

right to avail himself of his common -law remedy. Id. ' A third person having " joint supervision" of the place

of injury along with the injured man's employer, is not anemployer within the meaning of this section. Atkinson v. Fairview Dairy Farms, ( 1950) 190 Or 1, 222 P2d 732.

The use of a motor truck with defective brakes in defiance

of statute, and another truck in the lead to serve as a brake

for the hind truck, although deliberately intended, does notshow a deliberate intention to injure the employe so as to

652

r u

u

SUPERSEDED

authorize an action under this section. Heikkila v. Ewen

Transfer Co., ( 1931) 135 Or 631, 297 P 373.

2. Self - inflicted injury of workmanAlthough the deceased employe commenced the sport

with an air hose during working hours which resulted inhis death, the employer was liable for his death. Stark v.

Ind. Acc. Comm., ( 1922) 103 Or 80, 204 P 151.


NOTES OF DECISIONS

1. Compensation

2. Beneficiaries and dependents

3. Right of deceased employe' s estate to collect compensation

4. Injury by accident1) Elements

2) Time

3) Evidence

4) Particular injuries

5. Under pre- 1965 Act, hazardous occupations


1. Compensation

Compensation is fixed as of the date of the injury. Statev. Ind. Acc. Comm., ( 1925) 115 Or 484, 237 P 680.

Before the 1921 amendment, children born subsequent to

an injury were not included in the estimate of compensationof an injured workman. Id.

Where there has been an overpayment, there is no reason

why the commission may not adjust later payments tocomply with the rights of the workman under the Act. Stateex rel. Britt v. State Ind. Acc. Comm., ( 1964) 238 Or 130,

393 P2d 649.

The burden of proof of employment injury is on theclaimant. Blisserd v. State Ind. Acc. Fund, ( 1971) 92 Or AppAdv Sh 1786, 486 P2d 312. "

2. Beneficiaries and dependents

Dependents are determined as of the date of the injury. State v. Ind. Acc. Comm., ( 1925) 115 Or 484, 237 P 680.

It is only in case the injury results in death that theinjured workman's beneficiaries or dependents receive

compensation. Casaday v. Ind. Acc. Comm., ( 1926) 116 Or

656, 242 P 598.

3. Right of deceased employe's estate to collect compensation

An employe' s personal representative may recover unpaidinstalments accruing before his death. Heuchert v. Ind. Acc. Comm., ( 1942) 168 Or 74, 121 P2d 453.

If an employe dies from a cause dissociated from the

injury, his personal representative may recover only instalments accruing during his life: Id.

4. Injury by accident1) Elements. In determining whether the physical harm

sustained by an employe was the consequence of the accident or the injury, the controlling question is the continuityof the chain of causation and the absence of any interveningindependent agency. Baker v. Ind. Acc. Comm., ( 1929) 128

Or 369, 274 P 905.

An injury is not sustained by " accident" where an unusual or unexpected result occurs upon the doing of 'anintentional act, and there is no mischance, slip, or mishapin the doing of the act itself. Gottfried v. Ind. Acc. Comm.,

1942) 168 Or 65, 120 P2d 970.

2) 19me. An accident is an event the time of which can

656.202

be definitely fixed. Chalfant v. Arens, ( 1941) 167 Or 649, 120 P2d 219.

An application for compensation specifying that the accident occurred after he had left work and several miles away, although not conclusive, fortified the conclusion that no

reasonably definite time could be specified as of which anaccident occurred in the course of his employment. Id.

3) Evidence. There must be substantial evidence of injuryby accident which arose out of and in the course of employment and which must have been caused by violent orexternal means. Chalfant v. Arens, ( 1941) 167 Or 649, 120

P2d 219.

Declarations of a decedent concerning the cause of aninjury which later caused his death were not admissibleto establish a workmen' s compensation claim. Pratt v. State

Ind. Acc. Comm., ( 1954) 201 Or 658, 271 P2d 659. Distin-

guished in King v. State Ind. Acc. Comm., ( 1957) 211 Or

40, 309 P2d 159, 315 P2d 148, 318 P2d 282.

4) Particular injuries. An injury to an eye by irritationfrom heat, smoke and overexertion while fighting fire, wascompensable as an accident, it being immaterial that theinjured employe could not fix the exact date of the injury. Dondeneau v. Ind. Acc. Comm., ( 1926) 119 Or 357, 249 P

820, 50 ALR 1129.

An abrasion on the heel of a chainman, with blood poi-

soning subsequently developing, was an injury by accidentcaused by violent and external means. Huntley v. Ind. Acc. Comm., ( 1931) 138 Or 184, 6 P2d 209.

Although the rupture of a cancer was the immediate

cause of death, where there is some competent evidence

that the lifting of sacks of nuts was the proximate causeof the death, death was caused by external means. Etfordv. Ind. Acc. Comm., ( 1932) 141 Or 284, 17 P2d 568.

Injury was not caused by accidental means where plaintiffs intentional act resulted in an unusual or unexpected

result but there was no mischance, slip, or mishap in doingthe act. Chalfant v. Arens, ( 1941) 167 Or 649, 120 P2d 219.

Where plaintiff in firing a boiler deliberately looked atthe fire, the resulting impairment of his vision was notcaused by accidental means and was not compensable. Id.

Where an employe of a baking company stooped over. quickly to pick up a bun that had fallen off the tray andhurt his back in so doing, the injury was not sustained byaccident" and was not compensable. Gottfried v. Ind. Acc.

Comm., ( 1942) 168 Or 65, 120 P2d 970.

Injury occurring during working hours as plaintiff removed springs from wrecked car to install on his truck. where he was employed to haul gravel in his own truckfrom stock piles to road under repair, did not arise out of

and in the course of his employment. Stuhr v. Ind. Acc.

Comm., ( 1949) 186 Or 629, 208 P2d 450.

Workman' s beneficiaries were allowed recovery for deathresulting from coronary occlusion upon showing workmanwas performing even slight activity. Olson v. State Ind. Acc. Comm., ( 1960) 222 Or 407, 352 P2d 1096.

Employe injured after worst while crossing public thoroughfare partially controlled by employer was entitledto compensation. Montgomery v. State Ind. Acc. Comm.,

1960) 224 Or 380, 356 P2d 524.

5. Under pre -1965 Act, hazardous occupations

The work was not hazardous unless it was being performed in conjunction with a hazardous occupation then

being engaged in by the employer. Bennett v. State Ind. Acc. Comm., ( 1955) 203 Or 275, 279 P2d 655, 279 P2d 886;

Manning v. State Ind. Acc. Comm., ( 1963) 234 Or 207, 380

P2d 989; Oregon Farm Bureau v. Thompson, ( 1963) 235 Or

162, 378 P2d 563; Memmott v. State Ind. Acc. Comm., ( 1963)

235 Or 360, 385 P2d 188. Oregon Farm Bureau v. Thompson,

supra, distinguished in Memmott v. State Ind. Acc. Comm.,

1963) 235 Or 360, 385 P2d 188, and Richert v. State Ind.

Acc. Comm., ( 1965) 240 Or 381, 401 P2d 701.

653

SUPERSEDED

656.204

A service station employe was not. engaged in a hazard-

ous occupation. State Ind. Acc. Comm. v. Ganeau, ( 1954) 200 Or 594, 267 P2d 661.

Work on a residence was not hazardous. Bennett v. StateInd. Acc. Comm., ( 1955) 203 Or 275, 279 P2d 655, 279 P2d

886.

A workman devoting 95 percent of time in hazardousoccupation and 5 percent in nonhazardous occupations,

both for the same employer, and who was injured in course

of nonhazardous occupation, was within coverage of

Workmen's Compensation Law. Bos v. State Ind. Acc. Comm., ( 1957) 211 Or 138, 315 P2d 172.

Occupation" meant the employer' s trade or business. Memmott v. State Ind. Acc. Comm., ( 1963) 235 Or 360, 385

P2d 188.

A tavern was not a hazardous occupation and the prepa-

ration and sale of snacks to supplement beer sales did not

convert the operation of a tavern to that of a restaurant,

which was a hazardous occupation. Babb v. Lewis, ( 1966)

244 Or 537, 419 P2d 423.

FURTHER CITATIONS: Burrows v. State Ind. Acc. Comm., 1957) 209 Or 352, 306 P2d 395; Butler v. State Ind. Acc.

Comm., ( 1957) 212 Or 330, 318 P2d 303; Kehoe v. State Ind.

Acc. Comm., ( 1958) 214 Or 629, 332 P2d 91; Bandy v. Norris. Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839, 351. P2d

445; Zurich Ins. Co. v. Sigourney, ( 1960) 278 F2d 826; Rittersv. Beals, ( 1961) 225 Or 504, 358 P2d 1080; Davis v. Weyer- haeuser Co., ( 1962) 231 Or 596, 373 P2d 985; Bush v. C.J.

Montag & Sons, Inc., (1967) 246 Or 391, 425 P2d 527; Clayton

v. State Comp. Dept., ( 1969) 253 Or 397, 454 P2d 628.

ATTY. GEN. OPINIONS: A workman who terminates hisemployment, leaves the premises of the employer in his

private car and is struck by a train off the premises of theemployer as injured " by accident arising out of and in thecourse of his employment," 1944 -46, p 82; physician- legisla - tor employed to examine injured workmen, 1952 -54, p 124; effective date of benefits under 1965 Act, 1964 -66, p 228.

LAW REVIEW CITATIONS: 15 OLR 81; 1 WU 28, 42; 2

WLJ 24 -36, 3747, 6 WLJ 621 -626.

656.204

NOTES OF DECISIONS

Under a former similar statute, where commission failed

to show that there was no divorce or other dissolution ofa former marriage, recited in the stipulation of facts to exist

in Finland, the second wife was entitled to compensation

as a widow of the deceased workman. Alto v. Ind. Acc.

Comm., ( 1926) 118 Or 231, 246 P 359.

Under a former similar statute, the word " widow" in-

cluded one who married a workman after a fatal injury. Rosell v. Ind. Acc. Comm., ( 1939) 164 Or 173, 95 P2d 726.

A relationship •recognized as a marriage in another statewhere it was consummated will be recognized in Oregon

even though such relationship would not be a marriage ifthe same facts had been relied upon to create a marriagein Oregon. Boykin v. State Ind. Acc. Comm., ( 1960) 224 Or

76, 355 P2d 724. Adult invalid child who survives workman is not entitled

to the allowance under this section where there is no sur-

viving widow. Leech v. Georgia -Pac. Corp., ( 1969) 254 Or

351, 458 P2d 438.

Where workman dies with wife and 28 year old invalid

child surviving him, widow is not entitled to additionalallowance for such dependent child. Id.

Legislature intended that a child under 18 years of age

should not receive under this section any payments in hisown right where a surviving widow is an eligible beneficiary. Id.

The omission of some dependents as beneficiaries did not

appear arbitrary and the classification of beneficiaries wasconstitutional under the privileges and immunities provi-

sion, Ore. Const. Art. 1 § 20 and U.S. Const., Am. 14. Leech

v. Georgia -Pac. Corp., ( 1971) 259 Or 161, 485 P2d 1195.

FURTHER CITATIONS: Fenton v. State Ind. Acc. Comm.,

1953) 199 Or 668, 264 P2d 1037; State v. Schulman, ( 1971)

92 Or App Adv Sh 1505, 485 P2d 1252, Sup Ct review denied.

ATTY. GEN. OPINIONS: Reduction of award upon divorce,

1922 -24, p 31; what constitutes support within statute, 1922 -24, p 239; eligibility of married girls under 18 receivingcompensation, 1930 -32, p 411; amount of compensation fordependent children of deceased workman when mother dies

after her remarriage, 1938 -40, p 431; rights of widow andminor children to receive benefits after adoption of children

by others, 193840, p 436; retroactivity of the Act, 1948 -50, p 242.


656.206

NOTES OF DECISIONS

Where any useful vision remains, the disability is partialand an award for total disability is not authorized. Chebotv. State Ind. Acc. Comm., ( 1923) 106 Or 660, 212 P 792;

Borman v. State Comp. Dept., (1969) 1 Or App 136, 459 P2d885.

The upper limit of recovery for loss of use of an extremityis the award provided in the schedule for the loss of the

same limb by separation. Jones v. State Comp. Dept., (1968) 250 Or 177, 441 P2d 242; Trent v. State Comp. Dept., ( 1970)

2 Or App 76, 466 P2d 622. An employe that is so injured that he can perform no

service other than those which are so limited in quality, dependability, or quantity that a reasonably stable marketfor them does not exist, may well be classified as totallydisabled. Cooper v. Publishers Paper Co., ( 1970) 3 Or App415, 474 P2d 27; Swanson v. Westport Lbr. Co., ( 1971) 4

Or App 417, 479 P2d 1005. Under a former similar statute, the total loss of sight of

one eye and the loss of 50 percent of the vision of the other

authorized an award as for partial disability only, not fortotal disability. Chebot v. Ind. Acc. Comm., ( 1923) 106 Or

660, 212 P 792.

Under a former similar statute, a wife and children of

a marriage of the claimant celebrated after injury were notdependents within the statute. Casaday v. Ind. Acc. Comm.,

1926) 116 Or 656, 242 P 598.

When an injury comes within a certain Fused scheduleof compensation, the commission [ now board] has no dis-

cretion to exercise about awarding the compensation andcan attach no conditions thereto. Hoffineister v. Ind. Acc. Comm., ( 1945) 176 Or 216, 156 P2d 834.

Useful vision" means vision which is useful in a gainful

occupation. Borman v. State Comp. Dept., ( 1969) 1 Or App136, 459 P2d 885.

To defeat a claim of permanent disability if evidence ofdegree of obvious physical impairment, coupled with other

factors such as claimant' s mental capacity, education, training or age, place claimant prima facie in the odd -lotcategory, the burden is on the employer to show that somekind of suitable work is regularly and continuously available to claimant. Swanson v. Westport Lbr. Co., ( 1971) 4

Or App 417, 479 P2d 1005. In considering what is a suitable occupation, it must have

been intended that factors, other than physical impairment, should be taken into consideration. Surratt v. Gunderson

Bros. Engr. Corp. ( dictum), ( 1971) 259 Or 65, 485 P2d 410,

modifying 3 Or App 228, 471 P2d 817.

654

r1

SUPERSEDED

The preponderance of evidence supported a finding ofpermanent total, not partial, disability. Pykonen v. StateAcc. Ins. Fund, ( 1970) 3 Or App 74, 471 P2d 855; Mumpowerv. State Acc. Ins. Fund, ( 1970) 4 Or App 357, 478 P2d 425, Sup Ct review denied.

FURTHER CITATIONS: Dimitroff v. State Ind. Acc.

Comm., ( 1957) 209 Or 316, 306 P2d 398; Tooley v. State Ind. Acc. Comm., ( 1965) 239 Or 466, 398 P2d 184; Dalton v. CapeArago Lbr. Co., ( 1970) 4 Or App 249, 478 P2d 433.

ATTY. GEN. OPINIONS: Divorce of mother and stepfather

as disqualifying stepchildren, 1938 -40, p 216; segregation ofadditional compensation payable to injured workman

among beneficiaries, 1956 -58, p 186.


56.208

NOTES OF DECISIONS

Widow may obtain benefits even though commissionnow board] has not made order during life of deceased

workman adjudging him permanently totally disabled. Mi- kolich v. State Ind. Acc. Comm., ( 1957) 212 Or 36, 316 P2d

812, 318 P2d 274.

The right to benefits does not survive without at least

an award of such benefits being made. Fertig v. State Comp. Dept., ( 1969) 254 Or 136, 455 P2d 180, 458 P2d 444.

FURTHER CITATIONS: Olson v. State Ind. Acc. Comm., 1960) 222 Or 407, 352 P2d 10%; Boykin v. State Ind. Acc.

Comm., (1960) 224 Or 76, 355 P2d 724; Fertig v. State Comp. Dept., ( 1969) 254 Or 136, 455 P2d 180, 458 P2d 444; Majors

v. State Acc. Ins. Fund, ( 1970) 3 Or App 505, 475 P2d 439.

ATTY. GEN. OPINIONS: Stepchildren as entitled to receivepayments despite divorce of mother and stepfather, 1938 -40,

p 216; widow of a deceased workman, though marriedsubsequent to the time of the injury_, as entitled to benefitpayments, 1944 -46, p 196.


656.210

NOTES OF DECISIONS

The legislature' s intent was to consider the welfare of

wife and child as well as the injured workman in awardingcompensation. Ellis v. Fallert, ( 1957) 209 Or 406, 307 P2d283.

An award for temporary total disability was proper wherethe treatment prescribed by the commission' s [ now board' s] physician was light exercise and work, although claimant

was able to work a few hours at a time at light work. Vaderv. Ind. Acc. Comm., ( 1940) 163 Or 492, 98 P2d 714.

An allegation that temporary total disability would befor a designated period was properly construed as a mereopinion where the claimant' s condition was not stationary. Id.


Comm., ( 1957) 209 Or 316, 306 P2d 398; Tooley v. State Ind. Acc. Comm., ( 1965) 239 Or 466; 398 P2d 184; Fertig v. StateComp. Dept., ( 1969) 254 Or 136, 455 P2d 180, 458 P2d 444;

Surratt v. Gunderson Bros. Engr. Corp., ( 1971) 259 Or 65,

485 P2d 410.

ATTY. GEN. OPINIONS: Basis upon which compensation

shall be paid to person working but one day each week, 1930 -32, p 495; segregation of additional compensation payable to injured workman among beneficiaries, 1956 -58, p

656.214

186; payment recoverable for first three days, effective date

of benefits under 1965 Act, 1964 -66, p 228.


656.212

CASE CITATIONS: Tooley v. State Ind. Acc. Comm., ( 1965)

239 Or 466, 398 P2d 184; Ryf v. Hoffman Constr. Co., ( 1969)

254 Or 624, 459 P2d 991; Surratt v. Gunderson Bros. Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410.

ATTY. GEN. OPINIONS: Segregation of additional com-

pensation payable to injured workman among beneficiaries, 1956 -58, p 186.


656.214

NOTES OF DECISIONS

1. In general

2. Scheduled disabilities1) Foot

2) Loss of sight

3) Loss of digits

3. Unscheduled disabilities

1. In general

No compensation is allowable for pain, suffering or ner- vousness in and of themselves, but the disabling effects ofsuch may be considered in determining the disabling effectof a particular injury. Wilson v. Ind. Acc. Comm., ( 1950)

189 Or 114, 219 P2d 138; Walker v. State Comp. Dept., (1967) 248 Or 195, 432 P2d 1018. But see Surratt v. Gunderson Bros.

Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410, modifying 3 OrApp 228, 471 P2d 817.

Two awards should be made in the situation where an

injury to an unscheduled portion of the body results indisability to both unscheduled and scheduled portions. Fos- ter v. State Acc. Ins. Fund, ( 1971) 259 Or 86, 485 P2d 407,

modifying 4 Or App 50, 474 P2d 20, 476 P2d 933. The award for disability to a scheduled member should

not be duplicated in the award for an unscheduled disability. Surratt v. Gunderson Bros. Engr. Corp., ( 1971) 259 Or 65,

485 P2d 410, modifying 3 Or App 228, 471 P2d 817. Compensation is paid for disability, not injury. Foster v.

State Acc. Ins. Fund, ( 1970) 4 Or App 50, 474 P2d 20, 476P2d 933, modified, 259 Or 86, 485 P2d 407.

2. Scheduled disabilities

Impairment of earning capacity cannot be considered indetermining awards for specific scheduled permanent partial disabilities. Kajundzich v. State Ind. Acc. Comm., ( 1940)

164 Or 510, 512, 102 P2d 924; Surratt v. Gunderson Bros.

Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410, modifying 3 OrApp 228, 471 P2d 817.

Disability for loss of use of a scheduled member is limitedto that set forth in the schedule. Jones v. State Comp. Dept., 1968) 250 Or 177, 178, 441 P2d 242; Surratt v. Gunderson

Bros. Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410, modifying3 Or App 228, 471 P2d 817.

1) Foot. Injury to claimant' s foot resulting in disabilityto his leg justified an award based on loss of the functionof the leg. Kajundzich v. Ind. Acc. Comm., ( 1940) 164 Or

510, 102 P2d 924.

2) Loss of sight A total loss of sight of one eye and. the loss of 50 percent of the vision of the other eye auth-

orized an award as for partial disability only. Chebot v. Ind. Acc. Comm., ( 1923) 106 Or 660, 212 P 792.

Where claimant had useful vision in his eye and the juryfound a loss of the entire sight of the eye, although testi-

655

SUPERSEDED

656.216

mony indicated the eye, was blind only for industrial use, claimant was entitled to 100 percent recovery. Wilson v. Ind. Ace. Comm., ( 1950) 189 Or 114, 219 P2d 138.

In proving loss of vision, it is necessary to produce expertmedical testimony concerning the extent of the loss. Onv. State Ind. Ace. Comm., ( 1959) 217 Or 249, 342 P2d 136.

3) Loss of digits. Where injury to a thumb results inno unusual complications, compensation for an injury tothe hand is improper. Graham v. Ind. Ace. Comm., ( 1940)

164 Or 626, 102 P2d 927.

Under paragraph (b), loss of "all five digits" is equivalent

to what was under former law the loss of a hand. Grudle

v. State Ace. Ins. Fund, ( 1970) 4 Or App 326, 479 132d 250. Under subsection ( 3), the loss of use allowance for loss

of effective opposition does not include consequential dis-

ability to the hand. Id. Where fewer than five digits on one hand are injured

compensation can be awarded only in accordance withparagraphs ( j) and ( k). Id.

3. Unscheduled disabilitiesThe shoulder is separate from the arm and if injured,

claimant is entitled to award for unscheduled disability. Audas v. Galaxie, Inc., ( 1970) 2 Or App 520, 467 P2d 654, Sup Ct review denied; Hannan v. Good Samaritan Hosp., 1970) 4 Or App 178, 471 P2d 831, 476 P2d 931, Sup Ct review

denied; Foster v. State Ace. Ins. Fund, ( 1970) 4 Or App 50, 474 P2d 20, 476 P2d 933, modified, 259 Or 86, 485 P2d 407.

Loss of earnings is a factor to be considered in awardingpermanent partial disability for an unscheduled injury. Audas v. Galaxie, Inc., ( 1970) 2 Or App 520, 467 P2d 654, Sup Ct review denied; Hannan v. Good Samaritan Hosp.,

1970) 4 Or App 178, 471 P2d 831, 476 P2d 931, Sup Ct reviewdenied.

Loss of earning capacity is a proper test in determiningclaimant' s unscheduled disability. Surratt v. GundersonBros. Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410, modifying3 Or App 228, 471 P2d 817; Hawes v. State Ace. Ins. Fund,

1971) 92 Or App Adv Sh 1830, 486 P2d 1294. To defeat a claim of permanent disability if evidence of

degree of obvious physical impairment, coupled with other

factors such as claimant's mental capacity, education, training or age, place claimant prima facie in the odd -lotcategory, the burden is on the employer to show that somekind of suitable work is regularly and continuously available to claimant. Swanson v. Westport Lbr. Co., ( 1971) 4

Or App 417, 479 P2d 1005; Bailey v. Morrison - Knudsen Co., 1971) 5 Or App 59, 485 P2d 1254. The limitation affixed to unscheduled injuries applies only

to the particular injury which results from a particularaccident_ Green v. Ind. Ace. Comm., ( 1952) 197 Or 160, 251

P2d 437, 252 P2d 545.

The fact that a workman' s second injury involved thesame part of his body as that injured in the first accidenthas no bearing upon his right to compensation for thepermanent injury actually suffered as the result of thesecond accident. Id.

In determining the extent of an unscheduled permanentpartial disability, claimant is a competent witness as to thepain he suffered and his impaired ability to perform physicallabor. Martin v. Douglas County Lbr. Co., ( 1970) 4 Or App69, 476 P2d 940.

The legislature, by the 1967 amendment, intended thatthere be but one award where the injury is to an unscheduled member resulting in disability' to a scheduled and anunscheduled member. Foster v. State Ace. Ins. Fund, ( 1970)

259 Or 86, 485 P2d 407, modifying 4 Or App 50, 474 P2d20, 476 P2d 933.

FURTHER CITATIONS: Dimitroff v. State Ind. Ace.

Comm., ( 1957) 209 Or 316, 306 P2d 398; McClenny v. StateInd. Ace. Comm., ( 1963) 236 Or 383, 388 P2d 117; Tooley

v. State Ind: Ace. Comm., ( 1965) 239 Or 466, 398 P2d 184;

Nessetrodt v. State Comp. Dept., ( 1967) 248 Or 452, 435 P2d

315; Borman v. State Comp. Dept., ( 1969) 1 Or App 136, 459 P2d 885; Fertig v. State Comp. Dept., ( 1969) 254 Or 136,

455 P2d 180, 458 P2d 444; Beagle v. Rudie Wilhelm Whse.

Co., (1970) 2 Or App 533, 470 P2d 386; Lisoski v. The Embers, 1970) 2 Or App 60, 465 P2d 888; Trent v. State Comp. Dept., 1970) 2 Or App 76, 466 P2d 622.

ATTY. GEN. OPINIONS: Industrial blindness as complete

loss of sight for compensation purposes, notwithstandingthe retention of some visual efficiency, 1942 -44, p 434.

LAW REVIEW CITATIONS: 39 OLR 26; 2 WU 3, 5, 13,

14, 15, 68.

656.216

CASE CITATIONS: Fertig v. State Comp. Dept., ( 1969) 254

Or 136, 455 P2d 180, 458 P2d 444; Bivens v. WeyerhaeuserCo., ( 1971) 92 Or App Adv Sh 1772, 487 P2d 119; Wilsonv. Gilchrist Tbr. Co., ( 1971) 92 Or App Adv Sh 1779, 487P2d 104.

656.218

NOTES OF DECISIONS

The right to benefits does not survive without at least

an award of such benefits being made. Fertig v. State Comp. Dept., ( 1969) 254 Or 136, 455 P2d 180, 458 P2d 444; Majors

v. State Ace. Ins. Fund, ( 1970) 3 Or App 505, 475 P2d 437.

FURTHER CITATIONS: Cox v. Ind. Ace. Comm., ( 1942)

168 Or 508, 121 P2d 919, 123 P2d 800.

ATTY. GEN. OPINIONS: Widow of deceased workman as

entitled to both a fatal award and balance of permanent

partial disability award, 1930 -32, p 419.


656.220

NOTES OF DECISIONS

The statute limiting the compensation for hernia, whenoperated upon, to payment for temporary disability doesnot preclude recovery for other injuries received at the timethe hernia was caused. Plowman v. Ind. Ace. Comm., ( 1933)

144 Or 138, 23 P2d 910.

A workman should not be precluded from recoveringadditional compensation, if after diagnosis and an operation

for hernia he is not relieved and he discovers that, in addition to hernia, he has, in fact, sustained injuries for which

he had not been compensated. Id.

Where compensation in the full sum specified by thissection was awarded, in a claim based on hernia alone, the

commission [ now board] did not err in awarding nothingfor other injuries and classifying claimant' s condition astemporary total disability. McDermott v. Ind. Ace. Comm., 1923) 107 Or 526, 215 P 591. -

Plaintiff was entitled to recover for preexisting hernia andstroke which jury could have found as a proximate causeof the hernia operation. Tucker v. State Ind. Ace. Comm.,

1959) 216 Or 74, 337 P2d 979.

ATTY. GEN. OPINIONS: Performance of operation as con-

dition precedent to receiving compensation for hernia, 1926 -28, p 488.


656

SUPERSEDED

656.222

1. In general

The commission' s [ now board's] . jurisdiction continues

during a disability, the proximate cause of which may reasonably be traced to the injury. McDonough v. Nat. Hosp. Assn., ( 1930) 134 Or 451, 294 P 351.

Before the 1935"amendment, only those injuries for whichthe workman was still receiving compensation, or for whichlump sum payment had been made which, if divided intomonthly instalments, would still be in process of paymentto him at the time of further injuries, were covered by thestatute. Cain v. Ind. Acc. Comm., ( 1934) 149 Or 29, 37 P2d

353, 96 ALR 1072.

2. Computation of compensation

Inclusion of compensation for additional injuries caused

by the malpractice of a physician was required when compensation was awarded. McDonough v. Nat. Hosp. Assn., 1930) 134 Or 451, 294 P 351.

Before the 1935 amendment, a further injury to the samepart of his body previously involved, which increased thedegree of existing permanent partial disability for whichthe employe was receiving compensation in monthly instalments, required adjustment of his future compensation

with regard to the combined effects of his injuries. Cain

v. Ind. Acc. Comm., ( 1934) 149 Or 29, 37 P2d 353, 96 ALR

1072.

Before the 1935 amendment, a workman who' repeatedlysuffered the same type of injuries did not receive anygreater compensation because of the recurrence of the in-

jury to the same part of his body than was warranted bythe discernible additional degree of disability brought aboutby the specific injury for which he sought compensation. Id.

It is not the legislative intention, by this section, to limitan injured workman suffering unscheduled permanent partial disabilities in more than one accident to a maximum

combined recovery equivalent to the maximum recoveryprovided in OCLA 102 -1760 [ ORS 656.214( 4)] for unsched-

uled permanent partial disabilities in one accident. Greenv. Ind. Acc. Comm., ( 1952) 197 Or 160, 251 P2d 437, 252

P2d 545.

The fact that a workman' s second injury involved thesame part of his body as that injured in the first accidenthas no bearing upon his right to compensation for thepermanent injury actually suffered as the result of thesecond accident Id.

This section requires that in case of successive permanent

partial disabilities involving a member of the body namedin the schedule, the amount paid under the former awards

must be deducted from the last award. Nesselrodt v. State

Comp. Dept., ( 1967) 248 Or 452, 435 P2d 315.

FURTHER CITATIONS: Degidio v. Ind. Acc. Comm., ( 1922)

105 Or 642, 207 P 176; Hannan v. Good Samaritan Hosp., 1970) 4 Or App 178, 471 P2d 831, 476 P2d 931, Sup Ct review

denied.

656.226

NOTES OF DECISIONS

To identify recipient of death benefits, the status of awoman as the " surviving wife" is controlled by referenceto this section rather than the domestic relations law. Al-

bina Engine and Mach. Works v. O' Leary, ( 1964) 328 F2d877:

LAW REVIEW CITATIONS: 12 OLR 238; 23 OLR 90; 2 WLJ91.

656.245

656.228

CASE CITATIONS: Ellis v. Fallert, ( 1957) 209 Or 406, 307

P2d 283.

ATTY. GEN. OPINIONS: Segregating additional compensation payable to injured workman among beneficiaries, 1956 -58, p 186.

656.230

NOTES OF DECISIONS

Lump sum payment" means a payment before it becomes due under monthly payments. Verban v. Ind. Acc. Comm., ( 1942) 168 Or 394, 123 P2d 988.

FURTHER CITATIONS: Carr v. Ind. Acc. Comm., ( 1936)

153 Or 517, 57 P2d 1278; Lucas v: State Ind. Acc. Comm.,

1960) 222 Or 420, 353 P2d 223.

ATTY. GEN. OPINIONS: Lump sum payment of deathbenefits to nonresident widow, 1940 -42, p 245.

656.232

ATTY. GEN. OPINIONS: Award to an illegitimate child

residing in Sweden, 1930.32, p 513; cancellation clause asapplied to payments to Italian nationals, 1950 -52, p 11.

NOTES OF DECISIONS

The promisee in a note could not enjoin revocation of

and compel compliance with a power of attorney which

was given by the promisor as security, and which directedthe Industrial Accident Commission to send the promisee

checks due the promisor upon an allowed claim under the

workmen' s compensation law, since the power, if not cou-

pled with an interest, was revoked by the promisor, and, if coupled with an interest, was an equitable assignment

void under the statute. Scott v. Hall, ( 1945) 177 Or 403, 163

P2d 517.

Claim for overpayment was not subject matter in the

hands of the trustee in bankruptcy. State ex rel. Britt v. State Ind. Acc. Comm., ( 1964) 238 Or 130, 393 P2d 217.

The stipulation was not a release. Schulz v. State Comp. Dept., ( 1968) 252 Or 211, 448 P2d 551.

NOTES OF DECISIONS

Award though based on agreement could be remanded

to consider an increase. Schulz v. State Comp. Dept., ( 1968)

252 Or 211, 448 P2d 551.


Comm., ( 1957) 209 Or 316, 306 P2d 398; Johnson v.. Dave' s

Auto Center, Inc., (1970) 257 Or 34, 476 P2d 190.

NOTES OF DECISIONS

1. Under former similar statuteA conclusion of law that the court was not limited to

the scale established by the commission under the statutein making an allowance for surgical and medical serviceswas clearly erroneous. Miller v. Ind. Acc. Comm., ( 1917)

84 Or 507, 159 P 1150, 165 P 576.

No appeal was provided from the action of the commis-

sion in designating a physician and hospital for an injuredworkman. Smith v. Ind. Acc. Comm., ( 1922) 104 Or 640, 208

P 746.

657

SUPERSEDED

656.248

A judgment awarding compensation for permanent partial disability during the period of temporary total disabilityor the healing period did not conform to the statute wherethe extent of permanent disability was incapable of anyreasonably definite ascertainment. Helton v. Ind. Acc. Comm., ( 1933) 142 Or 49, 18 132d 831.

It was presumed that after each injury suffered by aworkman the commission in awarding him compensationendeavored to restore him, as far as possible, to the desired

condition. Cain v. Ind. Acc. Comm., ( 1934) 149 Or 29, 37

P2d 353, 96 ALR 1072.

An injured workman was not entitled to medical treat-

ment that was palliative and not curative after his physical

condition became stationary. Tooley v. State Ind. Acc. Comm., ( 1965) 239 Or 466, 398 P2d 184.


Comm., ( 1957) 209 Or 316, 306 132d 398.

ATTY. GEN. OPINIONS: Right of doctors in Clackamas

County to organize for the purpose of entering into contractfor treatment of accidents and sickness, for which workmen

pay through deductions from their wages, 1936 -38, p 518; authority to contract for vocational rehabilitation services, 1958 -60, p 30; vocational rehabilitation services by StateIndustrial Accident Commission, 1958 -60, p 30; charge forcost of care in state tuberculosis hospital, 1962 -64, p 72.


656.248

ATTY. GEN. OPINIONS: Authority to contract for vocational rehabilitation services, 1958 -60, p 30.

656.262

NOTES OF DECISIONS

The right to recover a penalty is as much a proceduralright as the collection of an attorney fee. Larson v. StateComp: Dept., ( 1969) 1 Or App 329, 462 P2d 694.

FURTHER CITATIONS: Shupe v. State Comp. Dept., (1967) 248 Or 129, 432. P2d 793; Chetney v. Western Foundry Co.,

1970) 255 Or 165, 464 P2d 833; Norton v. State Comp. Dept., 1968) 252 Or 75, 448 P2d 382; Printz v. State Comp. Dept., 1969) 253 Or 148, 453 P2d 665; Logan v. Boise Cascade

Corp., ( 1971) 5 Or App 636, 485 P2d 441, Sup Ct reviewdenied.

656.265



1) In general

2) Letter as an application

3) Others' reports as applications

4) Filing claim late in nonfatal cases5) Filing claim in fatal cases

L In general

Employer has burden of proving that he was prejudicedby the late filing of the notice. Satterfield v. State Comp. Dept., ( 1970) 1 Or App 524, 465 P2d 239.

Claimant has the burden of establishing good cause forfailure to file within the statutory time. Wilson v. State Acc. Ins. Fund, ( 1970) 3 Or App 573, 475 P2d 992.

Whether plaintiff had good cause for failure to file within

the statutory time is a factual question the answer to whichdepends upon the circumstances of each case. Id.

When read with ORS 656.262( 7), paragraph ( 4) ( b) onlybars the employer from denying the claim on the groundit had been untimely filed. Logan v. Boise Cascade Corp.,



1) In general. Neither the method of paying wages northe fact that no payroll was kept was a bar to compensation

under the workmen' s compensation law. Farrin v. Ind. Acc. Comm., ( 1922) 104 Or 452, 205 P 984.

Whosoever claimed under the law had to bring himselfwithin its terms as to filing the application required by thestatute. Rohde v. Ind. Acc. Comm., ( 1923) 108 Or 426, 217

P 627.

A waiver of an employe' s application for an allowance

was not within the power of the commission. Id.

No jurisdiction to allow a claim for compensation was

conferred on the commission by the filing of the reportrequired by the statute. Id.

Admission in evidence, as a self - disserving admission, ofan employer's report was not permitted. Wise v. Ind. Acc. Comm., ( 1934) 148 Or 461, 35 P2d 242.

The statutory time could not be waived by either thecommission_ or the courts. Rosell v. Ind. Acc. Comm., ( 1939)

164 Or 173, 95 P2d 726.

2) Letter as an application. A letter might be a sufficientapplication if it contained the requisite matter. Grunnettv. Ind. Acc. Comm., ( 1923) 108 Or 178, 215 P 881.

3) Others' reports as applications. The employe' s own

application for compensation was the sole process by whichan injured employe could move the commission for anallowance; the reports by the physician and employer conferred no jurisdiction. Rohde v. Ind. Acc. Comm., ( 1923)

108 Or 426, 217 P 627.

The commission' s acknowledgment of receipt of an un-

authorized application on behalf of an employe by his employer did not validate the application where the acknowl-

edgment made no intimation as to the validity of the claim. Id.

The commission was not estopped from challenging thesufficiency of an unauthorized application by the employerby taking such application into custody and marking itFiled." Id.

Ratification, after the time limited for filing an application, of the employer' s unauthorized application was

ineffective. Id.

A letter from the claimant' s attorney referring to anapplication by the employer did not confer jurisdiction, where the letter did not indicate approval of the employer'sact. Id.

4) Filing claim late in nonfatal cases. The statute, inauthorizing the commission to permit the filing of a claimafter three months " upon a sufficient showing," contem-

plated an investigation of the case before acting upon theapplication. Wooldridge v. Arens, ( 1940) 164 Or 410, 98 P2d1, 102 P2d 717. Distinguished in Kehoe v. State Ind. Acc. Comm., ( 1958) 214 Or 629, 332 P2d 91.

By filing a claim after three months from the accidentdate the claimant did not thereby become entitled to havehis claim heard on the merits; the commission had to beaccorded the right to determine whether the claimant had

made a sufficient showing to be entitled to a hearing onthe merits. Landauer v. Ind. Acc. Comm., ( 1944) 175 Or 418,

154 P2d 189.

Claim had to be filed within three months after accident,

or if injured party's condition did not then indicate thatinjury was compensable, a showing under oath was made, including not only injured's own duly verified statement, but an affidavit, or at least a certificate, by a qualifiedphysician from which a finding would be warranted thatthere was a causal connection between the accident and

the subsequent development of the injury. Id.

658

C

I / 1

J

SUPERSEDED

Where the facts constituted a " sufficient showing" forfailure to make a claim within three months in a non -fatalcase, the commission' s discretion was ended and it could

not refuse an application within the one -year period. Tice


The commission did not take jurisdiction of a claim bygranting a rehearing on the question of whether it hadtaken jurisdiction of the claim. Wooldridge v. Arens, ( 1940)

164 Or 410, 98 P2d 1, 102 P2d 717.

Proof that claimant was ignorant of a fractured hip because of doctors' diagnoses of other ills, was a sufficient

showing for failure to file within three months. Tice v. Ind. Acc. Comm., ( 1948) 183 Or 593, 195 P2d 188.

When plaintiff filed a claim after three months but within

one year and the claim was dismissed on its merits, the

trial court correctly withdrew from the consideration of thejury the question of whether the commission abused itsdiscretion in denying plaintiff's claim because of late filing. Kehoe v. State Ind. Acc. Comm., ( 1958) 214 Or 629, 332 P2d

91.

When claim was rejected on its merits, the commission

could not thereafter raise the bar of late filing. Montgomeryv. State Ind. Acc. Comm., ( 1960) 224 Or 380, 356 P2d 524.

Under provisions of a policy conforming it to Workmen' sCompensation Act, duty to file claim within one year restedwith employe. Booth v. Nirshel, ( 1965) 239 Or 634, 399 P2d

364.

A sufficient showing for the delayed filing was made. Johnson v. State Comp. Dept., ( 1969) 252 Or 279, 449 P2d

145.

5) Filing clahn In fatal cases. Claim for death filed morethan one year after fatal injury could not be entertained. Dragicevic v. Ind. Acc. Comm., ( 1924) 112 Or 569, 230 P

354.

Applications had to be filed within one year from the

date of the accident rather than the date of the death. Rosellv. Ind. Acc. Comm., ( 1939) 164 Or 173, 95 P2d 726.

FURTHER CITATIONS: Mikolich v. State Ind. Acc. Comm.,

1957) 212 Or 36, 316 P2d 812, 318 P2d 274; Johnson v. State

Comp. Dept., ( 1967) 246 Or 449, 425 P2d 496; Printz v. State

Comp. Dept., ( 1969) 253 Or 148, 453 P2d 665.

ATTY. GEN. OPINIONS: Deceased's half- brother filingclaim in behalf of himself and all other dependents, with

or without power of attorney, 1920 -22, p 461.


656.268

CASE CITATIONS: Pykonen v. State Acc. Ins. Fund, ( 1970)

3 Or App 74, 471 P2d 855; Dalton v. Cape Arago Lbr. Co., 1970) 4 Or App 249, 478 P2d 433; Bivens v. Weyerhaeuser

Co., ( 1971) 92 Or App Adv Sh 1772, 487 P2d 119.

656.271

NOTES OF DECISIONS

1. In general


1) In general

2) Payment of medical services as an award3) Aggravated injuries4) Application

5) Time limit on filing application

1. In generalUnder subsection ( 1), the test is whether the written

opinion supports the claim by setting forth facts which, iftrue, would constitute reasonable grounds for the claim.

656.271

Larson v. State Comp. Dept., ( 1968) 251 Or 478, 445 P2d486.

Aggravation by industrial accident of a pre - existing condition is compensable. Watson v. Georgia -Pac. Corp., ( 1970)

5 Or App 353, 478 P2d 431, 484 P2d 1115.


1) In general. The duty to award increased compensationcontained no elements of discretion not associated with the

duty to award compensation in the first instance. Chebotv. Ind. Acc. Comm., (1923) 106 Or 660, 212 P 792.

The purpose of a formal application for an increase of

compensation was not to give jurisdiction but to fix the

time from which compensation at the new rate shouldbegin. Id.

A new proceeding was not initiated by the applicationfor an increased compensation. Id.

An application for increased compensation because of

aggravation was distinct from a petition for rehearing. White v. Ind. Acc. Comm., ( 1940) 163 Or 476, 96 P2d 772,

98 P2d 955.

The claimant for additional compensation had to prove

that his disability became worse subsequent to the lastaward of compensation. Hisey v. Ind. Acc. Comm., ( 1940)

163 Or 696, 99 P2d 475.

2) Payment of medical services as an award. Allowingpayment of medical services was not an award of compen-

sation within the meaning of the statute. Gerber v. Ind. Acc. Comm, ( 1940) 164 Or 353, 101 P2d 416; Lindeman v.

Ind. Acc. Comm., ( 1948) 183 Or 245, 192 P2d 732. Distin-

guished In Billings v. State Ind. Acc. Comm., ( 1960) 225 Or

52, 357 P2d 276.

3) Aggravated injuries. Aggravation referred to the prog- ress of workman' s condition resulting from the specificinjury for which compensation had been made. Keefer v. Ind. Acc. Comm, ( 1943) 171 Or 405, 135 P2d 806.

Compensation for subsequent injury due to the malpractice of the physician must be awarded by the commissionwhile it has jurisdiction over the matter. McDonough v. Nat. Hosp. Assn., ( 1930) 134 Or 451, 294 P 351.

4) Applikation. Letters to and by the commission anda report of the medical examiner of the commission were

not an application for an increase of compensation, nor a

final decision from which an appeal was authorized. Degidiov. Ind. Acc. Comm., ( 1922) 105 Or 642, 207 P 176.

The statements furnished by a claimant to the commission before its award for hernia were sufficient to sustainclaimant' s subsequent claim for additional compensation for

injury to sacroiliac joints. Plowman v. Ind. Acc. Comm., 1933) 144 Or 138, 23 P2d 910.

A petition of an employe showed an aggravation in such

disability and the degree thereof as required by the statutewhere the sufficiency of the petition was questioned onlyby a motion for judgment on the pleading, by objectionto the introduction of evidence and by a motion for nonsuit. Stacey v. Ind. Acc. Comm., ( 1933) 145 Or 195, 26 P2d 1092.

Formal complaints or requests in legal and technical

language were not required. Miller v. Ind. Acc. Comm., 1934) 149 Or 49, 39 P2d 366.

A letter might be a sufficient application if it containedthe requisite matter. Id.

A letter of inquiry was not an application for additionalcompensation. Jacoby v. Ind. Acc. Comm., ( 1940) 165 Or

230, 106 P2d 294.

5) Time limit on filing application. The time for filingan application began to run from the date of the first awardof compensation, not from the date of the increased com-

pensation awarded on a rehearing. Billings v. State Ind. Acc. Comm., ( 1960) 225 Or 52, 357 P2d 276; Marsh v. State Ind.

Acc. Comm., ( 1963) 235 Or 297, 383 P2d 999; Hamrick v. State Ind. Acc. Comm., (1967) 246 Or 229, 424 P2d 894.

The 1957 amendment to ORS 656.278 preserved the ap-

659

SUPERSEDED

656.278

pealability of orders made on motion of the commission

during the time in which a workman could have appliedfor relief as a matter of right. Pate v. State Ind. Acc. Comm., 1964) 238 Or 499, 395 P2d 438.

FURTHER CITATIONS: State v. Ind. Acc. Comm., ( 1925)

115 Or 484, 237 P 680; Goss v. Ind. Acc. Comm., ( 1932) 140

Or 146, 12 P2d 322, 1006; Allen v. Ind. Acc. Comm., ( 1932)

140 Or 449, 8 P2d 1088; Colvin v. Ind. Acc. Comm., ( 1953)

197 Or 401, 253 P2d 910; Dimitroff v. State Ind. Acc. Comm., 1957) 209 Or 316, 306 P2d 398; Dodd v. State Ind. Acc.

Comm., ( 1957) 211 Or. 99, 310 P2d 324, 311 P2d 458, 315 P2d138; Buell v. State Ind. Acc. Comm., ( 1964) 238 Or 492, 395

P2d 442; Neet v. State Comp. Dept., ( 1966) 244 Or 331, 417

P2d 996; Hinch v. State Comp. Dept., ( 1970) 4 Or App 76, 475 132d 976, Sup Ct review denied; Comet] v. Stimson Lbr. Co., ( 1970) 257 Or 215, 477 P2d 898; Lawton v. State Acc.

Ins. Fund, ( 1971) 5 Or App 539, 485 P2d 1104.

ATTY, GEN. OPINIONS: The Soldiers' and Sailors' Civil

Relief Act as tolling the period of limitation set by thissection during which one serving in the Armed Forces mayfile an application for increased compensation for aggrava-

tion, 1944 -46, p 421.

LAW REVIEW CITATIONS: 23 OLR 202; 1 WLJ 189, 190;

2 WLJ 66 -74, 86-89.

656.278


1) Under former similar statute2. Jurisdiction to alter awards

3. Appeal

1. In general

Submission to arbitration of a question pending beforethe commission is not authorized, but after an appeal tothe circuit court such submission is proper. Holst v. Ind. Acc. Comm., ( 1926) 117 Or 370, 244 P 319.

A litigant's failure to comply with this section was fatalto his claim. Turner v. State Ind. Acc. Comm., ( 1965) 240

Or 247, 401 P2d 8.

1) Under former similar statute. A letter by a claim agentof the commission as to the action of the commission upon

an application of an injured workman was not admissible

in evidence as a copy of any order, decision or award ofthe commission. Miller v. Ind. Acc. Comm., ( 1934) 149 Or

49, 39 P2d 366.

Proceedings before the commission had to be in writing. Garner v. Ind. Acc. Comm., ( 1939) 162 Or 256, 92 P2d 193.

Consideration of all facts including those arising sincemaking the order, decision or award involved, was requiredon rehearing, and the commission had to enter such orderas the facts and law warranted. Id.

Authority to deny the application and confirm its previous decision or award if in its opinion it had previouslyfully considered all the matters raised by the applicationwas possessed by the commission. Id.

The statute did not provide for a second petition for

rehearing and the time to appeal was not extended by asecond petition for rehearing. Gerber v. Ind. Acc. Comm.,

1940) 164 Or 353, 101 P2d 416. Overruling Hutchins v. Ind. Acc. Comm., ( 1940) 163 Or 419, 97 P2d 944.

Previous maximum permanent partial disability awarddid not affect a workman' s right to compensation for per=

manent injury to the same part of his body in a secondaccident. Green v. State Ind.• Acc. Comm., ( 1953) 197 Or

160, 251 P2d 437, 252 P2d 545.

2. Jurisdiction to alter awards

So long as a compensable disability traceable to the injury continues, the commission [ now board] has jurisdictionover the case. Chebot v. Ind. Acc. Comm., ( 1923) 106 Or

660, 212 P 792.

Quasi - judicial powers of the commission [ now board] are

indicated by the provision for continuing power and jurisdiction. Graves v. Ind. Acc. Comm., ( 1924) 112 Or 143, 223

P 248.

The object of granting continuing jurisdiction was tomake clear that jurisdiction extended beyond the period

within which the claimant had a right to invokb it. Verban


The continuing jurisdiction conferred upon commissionnow board] does not authorize it to change awards where

there has been no change in the physical condition of the

claimant. Hoffineister v. State Ind. Acc. Comm., ( 1945) 176

Or 216, 156 132d 834. But see Holmes v. State Ind. Acc. Comm., ( 1961) 227 Or 562, 362 P2d 371, 363 P2d 563.

A ruling by an administrative quasi- judicial body whichis subject by statute to review in the circuit court cannotbe preserved from review through invoking the doctrineof res judicata. Holmes v. State Ind. Acc. Comm., ( 1961)

227 Or 562, 362 P2d 371, 363 P2d 563.

Commission [ now board] may not act capriciously butonly if " such action is justified." Id.

3. Appeal

This provision grants the right of appeal from any orderof the commission [now board] which terminates or diminishes its former award, where not made on its own motion.

Garner v. Ind. Acc. Comm., ( 1939) 162 Or 256, 92 P2d 193.

When an order intended to be final has been made, a

workman who has not within 60 days thereafter filed a

written petition for a rehearing cannot question a recitalin an order thereafter made to the effect that such subse-

quent order was made by the commission [ now board] onits own motion. Id.

Orders on the commission' s [ now board's] own motion

made in the exercise of its continuing jurisdiction wouldnot be appealable. Verban v. Ind. Acc. Comm., ( 1942) 168

Or 394, 123 P2d 988. Orders within the period in which plaintiff might have

petitioned for rehearing are not made in the exercise of thecommission' s [ now board's] continuing jurisdiction, nor onits own motion, and are appealable even though plaintiff

did not petition for a rehearing. Id. Where an order was made pursuant to an application for

additional compensation and not on the commission' s own

motion, a subsequent terminating order sua sponte was anappealable order. Hinkle v. Ind. Acc. Comm., ( 1940) 163 Or

395, 97 P2d 725.

An order decreasing the award on the commission' s owninitiative was appealable where a final order had been made

and the commission within 60 days had increased the award

without a petition for rehearing. Verban v. Ind. Acc. Comm., 1942) 168 Or 394, 123 P2d 988.

It would have been error for the trial court to allow an

amendment, sought by the commission, which would havepermitted the jury to reduce the award which the commission made in its order from which plaintiff appealed. Ken-

nedy v. State Ind. Acc. Comm., ( 1959) 218 Or 432, 345 P2d

801, 86 ALR2d 1032.

The 1957 amendment to this section preserves the appeal-

ability of orders made on motion of the commission duringthe time in which a workman could have applied for reliefas a matter of right. Pate v. State Ind. Acc. Comm., ( 1964)

238 Or 499, 395 P2d 438.

FURTHER CITATIONS: White v. Ind. Acc. Comm., ( 1940)

163 Or 476, 96 P2d 772, 98 P2d 955; Simmons v. Ind. Acc. Comm., ( 1942) 168 Or 256, 122 P2d 793; Burrows v. State

660

J

SUPERSEDED

J

1 1

Ind. Acc. Comm., ( 1957) 207 Or 352, 306 P2d 395; Dimitroff

v. State Ind. Acc. Comm., ( 1957) 209 Or. 316, 306 P2d 398;

Dodd v. State Ind. Acc. Comm., ( 1957) 211 Or 99, 310 P2d

324, 311 P2d 458, 315 P2d 138; Bandy v. Norris, Beggs andSimpson, ( 1959) 222 Or 1, 342 P2d 839; White v. State Ind.

Acc. Comm., ( 1961) 227 Or 306, 362 P2d 302; Buell v. State

Ind. Acc. Comm., ( 1964) 238 Or 492, 395 P2d 442; Shore v.

St. Paul Fire & Marine Ins. Co., ( 1965) 242 F Supp 164; Neetv. State Comp. Dept., ( 1966) 244 Or 331, 417 P2d 996; Barr

v. State Comp. Dept., ( 1970) 1 Or App 432, 463 P2d 871; Williamson v. State Acc. Ins. Fund, ( 1971) 92 Or App AdvSh 1775, 487 P2d 110.

LAW REVIEW CITATIONS: 13 OLR 256; 1 WLJ 187 -190,

192; 2 WLJ 69, 71, 86-89.

C* fqP?:k

NOTES OF DECISIONS

Memorandum containing quotes from medical texts froma doctor who had not examined claimant was properlyreceived by hearing officer. Lucke v. State Comp. Dept., 1969) 254 Or 439, 461 P2d 269.

FURTHER CITATIONS: Romero v. State Comp. Dept., 1968) 250 Or 368, 440 P2d 866; Peterson v. State Comp.

Dept., ( 1970) 257 Or 369, 477 P2d 216; Watson v. Georgia -

Pac. Corp., ( 1971) 5 Or App 353, 478 P2d 431, 484 P2d 1115.

ATTY. GEN. OPINIONS: Appearance at hearing by non - lawyer representative, ( 1968) Vol 34, p 91.

656.289

NOTES OF DECISIONS

There was no dispute over compensability of a claim, onlythe extent of the disability. Schulz v. State Comp. Dept., 1968) 252 Or 211, 448 P2d 551.

A compromise settlement under subsection ( 4) did not

bar subsequent proceedings by claimant as a matter ofelection of remedies, estoppel or res judicata. Johnson v.

Dave's Auto Center, Inc., ( 1970) 257 Or 34, 476 132d 190.

656.295

NOTES OF DECISIONS

Testimony taken erroneously by the circuit court couldnot be considered on appeal and case was remanded for

remand to the hearing officer for taking of additional testimony. Sahnow v. Fireman' s Fund Ins. Co., ( 1970) 3 Or App164, 470 P2d 378, Sup Ct review allowed

The board is limited to a review of the record. McManusv. State Acc. Ins. Fund., ( 1970) 3 Or App 373, 474 P2d 31.

FURTHER CITATIONS: Romero v. State Comp. Dept., 1968) 250 Or 368, 44 P2d 866; Larson v. State Comp. Dept., 1968) 251 Or 478, 445 P2d 486; Schulz v. State Comp. Dept., 1968) 252 Or 211, 448 P2d 551; Cunningham v. State Comp.

Dept., (1969) 1 Or App 127, 459 P2d 892; Barr v. State Comp. Dept., ( 1970) 1 Or App 432, 463 P2d 871; Audas v. Galaxie, Inc., (1970) 2 Or App 520, 467 P2d 654, Sup Ct review denied; Mansfield v. Caplener Bros., ( 1970) 3 Or App 448, 474 P2d785; Peterson v. State Comp. Dept., ( 1970) 257 Or 369, 477

P2d 216; Place v. Friesen Lbr. Co., ( 1971) 258 Or 98, 481P2d 617.

656.298

NOTES OF DECISIONS

1. In general


1) In general

656.298

2) Constitutionality3) Compliance with statute

4) Appealable orders

5) Time for appeal

1. In general

This section requires a de novo review on the record.

Coday v. Willamette Tug & Barge Co., ( 1968) 250 Or 39,

440 P2d 224; Hannan v. Good Samaritan Hosp., ( 1970) 4

Or App 178, 471 P2d 831, 476 P2d 931, Sup Ct review denied; McManus v. State Acc. Ins. Fund, ( 1970) 3 Or App 373, 474P2d 31.

Statutory costs are recoverable in circuit court reviewsof workmen's compensation cases. Cunningham v. State

Comp. Dept., ( 1969) 1 Or App 127, 459 P2d 892; McManusv. State Acc. Ins. Fund, ( 1970) 3 Or App 373, 474 P2d 31.

Reviewing court must decide in each case to what extentit will be persuaded by the administrative findings. Stateex rel. Cady v. Allen, ( 1969) 254 Or 467, 460 P2d 1017;

Hannan v. Good Samaritan Hosp., ( 1970) 4 Or App 178, 471P2d 831, 476 P2d 931, Sup Ct review denied; Blisserd v. StateInd. Acc. Fund, ( 1971) 92 Or App Adv Sh 1786, 486 P2d 312.

It is proper for the reviewing court to take into accountthe administrative agency' s expertise; it is not proper toconsider special talents or knowledge of any individualofficer. State ex rel. Cady v. Allen, ( 1969) 254 Or 467, 460P2d 1017; Hannan v. Good Samaritan Hosp., ( 1970) 4 Or

App 178, 471 P2d 831, 476 P2d 931, Sup Ct review deniedIn so far as the resolution of an issue turns upon the

credibility of witnesses the court should give weight to thefindings of the hearing officer who saw and heard thosewitnesses. Hannan v. Good Samaritan Hosp., ( 1970) 4 Or

App 178, 471 P2d 831, 476 P2d 931, Sup Ct review denied; Wilson v. Gilchrist Tbr. Co., ( 1971) 92 Or App Adv Sh 1779, 487 P2d 104.

It was error for circuit court to receive additional evi-

dence which was obtainable at the time of the hearing. Beagle v. Rudie Wilhelm Whse. Co., ( 1970) 2 Or App 533, 463 P2d 875, 470 P2d 386; Sahnow v. Fireman's Fund Ins. Co., ( 1970) 3 Or App 164, 470 P2d 378, Sup Ct review allowed.

Review of the board's decisions under this section is a

review of the decision of a tribunal, and on such review,

the court may award costs and disbursements under ORS20.020 and 20. 120. Cunningham v. State Comp. Dept., (1969) 1 Or App 127, 459 P2d 892.

Order of Workmen' s Compensation Board remanding areport of the medical board to a hearing officer was notan appealable order. Bart v. State Comp. Dept., ( 1970) 1

Or App 432, 463 P2d 871. The word " order" as used in subsection ( 1) refers to final

orders which adjudicate a right or impose a duty on a party. Id.

In so far as the issues presented to the court can be

measured by objective criteria it should give little or noweight to the administrative findings. Hannan v. Good

Samaritan Hosp., ( 1970) 4 Or App 178, 471 P2d 831, 476 P2d931, Sup Ct review denied.

Further evidence taking under subsection ( 6) permitstaking only evidence that was not available at the hearing. Mansfield v. Caplener Bros., ( 1970) 3 Or App 448, 474 P2d785.

Subsection ( 1) is a venue statute, not jurisdictional. Place

v. Friesen Lbr. Co., ( 1971) 258 Or 98, 481 P2d 617, rev'g2 Or App 6, 463 P2d 596. Contra, Cunningham v. StateComp. Dept., (1969) 1 Or App 127, 459 P2d 892.


1) In general. When the jurisdiction of the court had

attached, the commission had no more control over the

controversy than any other litigant in court. Maroulas v. Ind. Acc. Comm., ( 1926) 117 Or 406, 244 P 317.

661

SUPERSEDED

656.298

The term " appeal" was not used in the restricted sense

of an appeal from an inferior court to a superior court, but

in the sense of calling upon a competent court for determination of the claim. Roles Shingle Co. v. Bergerson, ( 1933)

142 Or 131, 19 P2d 94; Conley v. State Ind. Acc. Comm., 1954) 200 Or 474, 266 P2d 1061; Burkholder v. State Ind.

Acc. Comm., ( 1965) 242 Or 276, 409 132d 342. The right to the aid of a constitutional court was not

waived by accepting the remedy provided by the workmen' scompensation law. Roles Shingle Co. v. Bergerson, ( 1933)

142 Or 131, 19 P2d 94.

The jurisdiction of the commission to adjust from time

to time the monthly compensation based on changes in thecondition of the injured workman continued in spite of an

appeal by the workman and recovery of a judgment therein. State v. Ind. Acc. Comm., ( 1934) 145 Or 443, 28 P2d 237.

The lack of the appointment of a guardian ad litem in

a workmen' s compensation proceeding was a mere irregu- larity in procedure of which the employe could not complainafter judgment had been duly and regularly entered on averdict duly and properly found. Round v. Ind. Acc. Comm.,

1936) 154 Or 400, 60 P2d 601.

When a judgment had been entered and further appeals

to the court were desired from subsequently entered ordersof the commission, the appealing party had to again complywith the statutory requisites to perfect an appeal. Simmonsv. Ind. Acc. Comm., ( 1942) 168 Or 256, 122 P2d 793.

Instruction that plaintiff in Workmen' s Compensation

Act case had no burden of proof was contrary to law andprejudicial to defendant. Dimitroff v. State Ind. Acc.

Comm., ( 1957) 209 Or 316, 306 P2d 398.

On an appeal to the courts, claimant was limited to same

theory of case as presented to commission. Burrows v. StateInd. Acc. Comm., ( 1957) 209 Or 352, 306 P2d 395.

Successful plaintiff was only allowed the amount recom- mended by the minimum fee schedule of the Oregon StateBar for professional services rendered on appeal, in the

absence of unusual circumstances. Kehoe v. State Ind. Acc.

Comm., ( 1958) 214 Or 629, 332 P2d 91.

Appealable orders include those entered in a claim opened

on the commission' s own motion. Buell v. State Ind. Acc.

Comm., ( 1964) 238 Or 492, 395 P2d 442.

The appeal was properly dismissed when the claim waspending, having been reopened on motion of the commission. Pate v. State Ind. Acc. Comm., ( 1964) 238 Or 499, 395P2d 438.

Action by employe against employer - insured who hadrejected the Workmen's Compensation Act was not re-

movable to federal court when employe was entitled to

recover that which he could have received under the Act. Colvin v. Weyerhaeuser Co., ( 1964) 229 F Supp 1022.

2) Constitutionality. The peculiar procedure provided foron appeals did not render the statute invalid. Butterfieldv. Ind. Acc. Comm., ( 1924) 111 Or 149, 223 P 941, 226 P

216.

The statute as it existed prior to the 1925 amendment

was not unconstitutional under Ore. Const. Art. VII(A), §1,

vesting judicial power. Roles Shingle Co. v. Bergerson, 1933) 142 Or 131, 19 P2d 94.

3) Compliance with statute. Strict compliance with therequirements of the law was essential to the jurisdiction

of the appellate court. Demitro v. Ind. Acc. Comm., ( 1924)

110 Or 110, 223 P 238; Graves v. Ind. Acc. Comm., ( 1924)

112 Or 143, 223 P 248; Jackson v. Ind. Acc. Comm., ( 1925)

114 Or 373, 235 P 302; Gerber v. Ind. Acc. Comm., ( 1940)

164 Or 353, 101 P2d 416.

In a proceeding for additional compensation, strict compliance with the statute was essential to appellate jurisdic-

tion. Graves v. Ind. Acc. Comm., ( 1924) 112 Or 143, 223 P

248.

4) Appealable orders. A final decision upon an appli-

cation for an increase of compensation was a prerequisite

to appeal. Degidio v. Ind. Acc. Comm., ( 1922) 105 Or 642,

207 P 176.

A letter reciting proceedings in a compensation case wasnot an appealable decision. Iwanicki v. Ind. Acc. Comm., 1922) 104 Or 650, 205 P 990, 29 ALR 682.

The designation of a physician and hospital for injured

workmen by the commission, was within its discretion andits decision thereto was not appealable. Smith v. Ind. Acc. Comm., ( 1922) 104 Or 640, 208 P 746.

If a proceeding for allowance, rearrangement or termination of compensation involved a final action of the commission, an appeal would lie. Chebot v. Ind. Acc. Comm., ( 1923)

106 Or 660, 212 P 792.

A decision that no claim had been presented was a final

action of the commission. Rohde v. Ind. Acc. Comm., ( 1923)

108 Or 426, 217 P 627.

The use of the word " considered" in letters from the

commission to a claimant's attorney indicated that the

tribunal had heard and judicially determined matters submitted to it. Meaney v. Ind. Acc. Comm., ( 1925) 113 Or 371,

227 P 305, 232 P 789. Distinguished In Reed v. Hunter, (1935) 150 Or 524, 46 P2d 595.

A letter by the claims agent of the commission to theattorney of the claimant to the effect that the membersof the commission had reviewed the evidence pertainingto the claim and had found no grounds for reopening thesame, was not an appealable order. Reed v. Hunter, ( 1935)

150 Or 524, 46 P2d 595.

An order diminishing the additional award which thecommission had previously made sua sponte was not appealable. Garner v. Ind. Acc. Comm., ( 1939) 162 Or 256, 92

P2d 193.

5) Time for appeal. An appeal from an order denyingthe rehearing of a compensation claim was too late wherea copy of the order denying the rehearing was filed onSeptember 28, and the notice of appeal and the complaint

were filed by the claimant on October 29, service in bothcases being made by mail. Sevich v. Ind. Acc. Comm., ( 1933)

142 Or 563, 20 P2d 1085.

In computing the time within which an appeal could beprosecuted, the day following the entry of the final orderwas to be excluded. Payne v. Ind. Acc. Comm., ( 1935) 150Or 520, 46 P2d 581.

An appeal was taken in time, in view of ORS 16. 790,

where a copy of the notice of appeal was properly depositedin a post office on the day preceding the last day for takingan appeal and the next day the mail left the place of deposit. Id.

FURTHER CITATIONS: Miller v. Ind. Acc. Comm., ( 1917)

84 Or 507, 159 P 1150, 165 P 576; Raney v. Ind. Acc. Comm., 1917) 85 Or 199, 166 P 523; Grant v. Ind. Acc. Comm., ( 1921)

102 Or 26, 201 P 438; Landberg v. Ind. Acc. Comm., ( 1923)

107 Or 498, 215 P 594; McDermott v. Ind. Acc. Comm., ( 1923)

107 Or 526, 215 P 591; Meaney v. Ind. Acc. Comm., ( 1925)

113 Or 371, 227 P 305, 232 P 789; Bratt v. Ind. Acc. Comm.,

1925) 114 Or 644, 236 P 478; West v. Ind Acc. Comm., (1925) 115 Or 404, 237 P 980; Holst v. Ind. Acc. Comm., ( 1926) 117

Or 370, 244 P 319; Maroulas v. Ind. Acc Comm., ( 1926) 117

Or 406, 244 P 317; Bergerson v. Ind. Acc. Comm., ( 1927)

121 Or 314, 253 P 1052; Paul v. Ind. Acc. Comm., ( 1928)

127 Or 599, 272 P 267, 273 P 337; Monahan v. Ind. Acc. Comm., ( 1932) 139 Or 417, 10 P2d 605; Brothers v. Ind. Acc.

Comm., ( 1932) 139 Or 658, 12 P2d 302; Cicrich v. Ind. Acc. Comm., ( 1933) 143 Or 627, 23 P2d 534; Helton v. Ind. Acc.

Comm., ( 1933) 142 Or 49, 18 P2d 831; Hilger v. Ind. Acc. Comm., ( 1938) 158 Or 591, 76 P2d 972; White v. Ind. Acc. Comm., ( 1939) 163 Or 476, 96 P2d 772, 98 P2d 955; Wool- dridge v. Arens, ( 1940) 164 Or 410, 98 P2d 1, 102 P2d 717;

Dickison v. Ind. Acc. Comm., ( 1940) 165 Or 306, 107 P2d

104; Heuchert v. Ind. Acc. Comm., ( 1942) 168 Or 74, 121

P2d 453; Tice v. Ind. Acc. Comm., ( 1948) 183 Or 593, 195

662

C

SUPERSEDED

132d 188; Larson v. State Ind. Acc. Comm., ( 1957) 209 Or

389, 307 P2d 314; Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342 P2d 839; White v. State Ind. Acc. Comm.,

1961) 227 Or 306, 362 P2d 302; Holmes v. State Ind. Acc. Comm., ( 1961) 227 Or 562, 362 P2d 371, 363 P2d 563; Crouchv. State Ind. Acc. Comm., ( 1965) 239 Or 442, 398 P2d 197;

Turner v. State Ind. Acc. Comm., ( 1965) 240 Or 247, 401

P2d 8; Shore v. St. Paul Fire & Marine Ins. Co., ( 1965) 242

F Supp 164; Munger v. State Ind. Acc. Comm., ( 1966) 243

Or 419, 414 P2d 328; Boatwright v. State Ind. Acc. Comm.,

1966) 244 Or 140, 416 P2d 328; Neet v. State Comp. Dept., 1966) 244 Or 331, 417 P2d 996; Neeley v. State Comp. Dept., 1967) 246 Or 522, 426 P2d 460; Harp v. State Comp. Dept., 1967) 247 Or 129, 427 P2d 981; Romero v. State Comp.

Dept., ( 1968) 250 Or 368, 440 P2d 866; Lorentzen v. State

Comp. Dept., ( 1968) 251 Or 92, 444 P2d 946; Lucke v. State

Comp. Dept., ( 1969) 254 Or 439, 461 P2d 269; Mayes v. State

Comp. Dept., ( 1969) 1 Or App 234, 461 P2d 841; Wardenv. No. Plains Lbr. Co., ( 1970) 2 Or App 82, 466 P2d 620; Audas v. Galaxie, Inc., ( 1970) 2 Or App 520, 467 P2d 654, Sup Ct review denied.

LAW REVIEW CITATIONS: 12 OLR 249; 1 WLJ 161, 190, 200.

656.301

NOTES OF DECISIONS

1. In general

2. Compliance with statute

3. Commission as party4. Scope of review


1. In general

An undertaking on appeal need not be filed by the commission [now State Accident Insurance Fund] on its appeal. Miller v. Ind. Acc. Comm., ( 1917) 84 Or 507, 159 P 1150,

165 P 576; Enneberg v. Ind. Acc. Comm., ( 1918) 88 Or 436,

167 P 310, 171 P 765.

When a judgment has been entered and further appeals

to the court are desired from subsequently entered ordersof the commission [ now fund], the appealing party shouldagain comply with statutory requisites to perfect an appeal. Simmons 'v. Ind. Acc. Comm., ( 1942) 168 Or 256, 122 P2d

793.

A claimant, injured prior to 1966, electing to proceedunder the new Act, is entitled to attorney fees under thissection. Larson v. State Comp. Dept., ( 1968) 251 Or 478,

445 P2d 486.

Appellate court may remand a particular case or disposeof it. Beagle v. Rudie Wilhelm Whse. Co., ( 1970) 2 Or App533, 463 P2d 875, 470 P2d 386.

Claimant is entitled to attorney fees in occupational disease cases appealed under this section. Beaudry v. Win- chester Plywood Co., ( 1970) 255 Or 503, 469 P2d 25.

2. Compliance with statute

Strict compliance with the requirements of the law is

essential to the jurisdiction of the appellate court. Butter- field v. Ind. Acc. Comm., ( 1924) 111 Or 149, 223 P 941, 226P 216.

3. Commission as partyThe same right to appeal as in other cases is given the

commission, and where the commission is one of the appel-

lants the Supreme Court has jurisdiction. Dragicevic v. Ind. Acc. Comm., ( 1924) 112 Or 569, 230 P 354.

The commission is a party to litigation arising under thislaw, and the Attorney General may appeal in its name.

656. 301

Butterfield v. Ind. Acc. Comm., ( 1924) 111 Or 149, 223 P

941, 226 P 216.

When jurisdiction of the court has attached, the commis-

sion has no more control over the controversy than anyother litigant in court. Maroulas v. Ind. Acc. Comm., ( 1926)

117 Or 406, 244 P 317.

4. Scope of review

The appellate court examines the record de novo as triers

of fact. Coday v. Willamette Tug & Barge Co., ( 1968) 250

Or 39, 440 P2d 224; Ryf v. Hoffman Constr. Co., ( 1969) 254

Or 624, 459 P2d 991; Lucke v. State Comp. Dept., ( 1969)

254 Or 439, 461 P2d 269; Melius v. Boise Cascade Corp., 1970) 2 Or App 206, 466 P2d 624; Warden v. No. Plains

Lbr. Co., ( 1970) 2 Or App 82, 466 P2d 620; Hannan v. GoodSamaritan Hosp., ( 1970) 4 Or App 178, 471 P2d 831, 476 P2d931, Sup Ct review denied.

It is proper for the Supreme Court to consider the expert-

ise of a government agency as a whole, whether an administrative body or a trial court. Ryf v. Hoffman Constr. Co., 1969) 254 Or 624, 459 P2d 991; Lucke v. State Comp. Dept., 1969) 254 Or 439, 461 P2d 269; State ex rel. Cady v. Allen, 1969) 254 Or 467, 460 P2d 1017; Melius v. Boise Cascade

Corp., ( 1970) 2 Or App 206, 466 P2d 624. In an appeal under this law, the appellate court gives

weight to the findings of the hearing officer on the matterof credibility of witnesses. Moore v. U. S. Plywood Corp.,

1969) 1 Or App 343, 462 P2d 453; Satterfield v. State Comp. Dept., ( 1970) 1 Or App 524, 465 P2d 239; Lisoski v. TheEmbers, ( 1970) 2 Or App 60, 465 P2d 888; Melius v. BoiseCascade Corp., ( 1970) 2 Or App 206, 466 P2d 624; Baileyv. Morrison- Knudsen Co., ( 1971) 5 Or App 592, 485 P2d 1254.

The appellate court properly may and does give respectfulconsideration to the findings of the circuit court but is not

in any way bound by those findings. Hannan v. Good Sa- maritan Hosp., ( 1970) 4 Or App 178, 471 P2d 831, 476 P2d931, Sup Ct review denied; Surratt v. Gunderson Bros. Engr. Corp., ( 1971) 259 Or 65, 485 P2d 410, modifying 3 Or App228, 471 P2d 817.

When the situation calls for the appellate court to giveweight to the findings of the individual who saw and heardthe witnesses or to defer to administrative expertise based

on repetitive performance of specialized functions, it mustlook back, not to the findings of the circuit court, but to

administrative findings. Hannan v. Good Samaritan Hosp., 1970), 4 Or App 178, 471 P2d 831, 476 P2d 931, Sup Ct review

denied.

When the record is such that after reviewing it the courtcannot say with any degree of conviction what the properresult should be, the court defers to the administrative

agency and affirms the result reached by it. Surratt v. Gunderson Bros. Engr. Corp., ( 1970) 3 Or App 228, 471 P2d817, modified, 259 Or 65, 485 P2d 410.

FURTHER CITATIONS: Grant v. Ind. Acc. Comm., ( 1921)

102 Or 26, 201 P 438; Stark v. Ind. Acc. Comm., ( 1922) 103

Or 80, 204 P 151; Farrin v. Ind. Acc. Comm., ( 1922) 104 Or

452, 205 P 984; Hart v. Ind. Acc. Comm., ( 1934) 148 Or 692,

38 P2d 698; King v. State Ind. Acc. Comm., ( 1957) 211 Or

40, 309 P2d 159, 315 P2d 148, 318 P2d 272; Mikolich v. State

Ind. Acc. Comm., ( 1957) 212 Or 36, 316 P2d 812, 318 P2d274; Burkholder v. State Ind. Acc. Comm., ( 1965) 242 Or

276, 409 P2d 342; Uris v. State Comp. Dept., ( 1967) 247 Or

420, 430 P2d 861; Cunningham v. State Comp. Dept., ( 1969)

1 Or App 127, 459 P2d 892; Borman v. State Comp. Dept., 1969) 1 Or App 136, 459 P2d 885; Audas• v. Galaxie, Inc., 1970) 2 Or App 520, 467 P2d 654, Sup Ct review denied;

Sahnow v. Fireman' s Fund Ins. Co., ( 1970) 3 Or App 164, 470 P2d 378, Sup Ct review allowed; Peterson v. State Comp. Dept., ( 1970) 257 Or 369, 477 P2d 216.

663

SUPERSEDED

656.307

656.307

NOTES OF DECISIONS

As soon as the determination is made that the claimant

suffered a compensable injury in covered employment, afterproviding for prompt commencement of compensationpayments by initial designation of an employer, the boardthen shall proceed to determine who the true employer or

employers are and how much of the burden each shall bear.

Oremus v. Oregonian Publ. Co., ( 1970) 3 Or App 92, 470P2d 162, Sup Ct review denied.

656.310

NOTES OF DECISIONS

Memorandum containing quotes from medical texts froma doctor who had not examined claimant was properlyreceived by hearing officer. Lucke v. State Comp. Dept., 1969) 254 Or 439, 461 P2d 269.

656.313

CASE CITATIONS: Leech v. Georgia -Pac. Corp., ( 1969) 254

Or 351, 458 P2d 438, 460 P2d 359; Larson v. State Comp. Dept., ( 1969) 1 Or App 329, 462 P2d 694; Watson v. Geor- gia -Pac. Corp., ( 1971) 5 Or App 353, 478 P2d 431, 484 P2d1115.

656.319

NOTES OF DECISIONS

To harmonize the notice provisions of subsection ( 6) of

ORS 656.262 and paragraph ( a), subsection ( 2) of this section, " notified" is construed to mean when notice is de-

posited in the mail. Norton v. State Comp. Dept., ( 1968)

252 Or 75, 448 P2d 382.

FURTHER CITATIONS: Boatwright v. State Ind. Acc.

Comm., ( 1966) 244 Or 140, 416 P2d 328; Printz v. State Comp. Dept., ( 1969) 253 Or 148, 453 P2d 665.

656.325

NOTES OF DECISIONS

The words " reasonably essential" are used in a relativesense, and the right to compensation is suspended onlywhere an injured employe refuses to submit to an operation

to which an ordinary reasonable man would submit if simi- larly situated. Grant v. Ind. Acc. Comm., ( 1921) 102 Or 26,

201 P 438.

FURTHER CITATIONS: Pykonen v. State Acc. Ins. Fund,

1970) 3 Or App 74, 471 P2d 855; Dalton v. Cape Arago Lbr. Co., ( 1970) 4 Or App 249, 478 P2d 433.


656.382

NOTES OF DECISIONSSubsection ( 2) applies to occupational disease cases.

Beaudry v. Winchester Plywood Co., ( 1970) 255 Or 503, 469P2d 25.

Where claimant rather than the employer or the boardinitiates the appeal to circuit court, there is no provision

allowing claimant attorney fees if he prevails. Bailey v. Morrison- Knudsen Co., ( 1971) 5 Or App 592, 485 P2d 1254.

FURTHER CITATIONS: Shupe v. State Comp. Dept., (1967) 248 Or 129, 432 P2d 793; Norton v. State Comp. Dept., ( 1968)

252 Or 75, 448 P2d 382; Larson v. State Comp. Dept., ( 1969)

I Or App 329, 462 P2d 694; Watson v. Georgia -Pac. Corp., 1971) 5 Or App 353, 478 P2d 431, 484 P2d 1115.

656.384

NOTES OF DECISIONS

This section does not give a third party the right to appealfrom a trial court' s denial of his challenge under OCLA102 -1729 [ ORS 656.324] of a plaintiffs right of action. Ahern

v. Settergren, ( 1947) 180 Or 287, 176 P2d 645. The findings of the trial court as to the amount of the

attorney fee will not be set aside on appeal unless notsupported by any substantial evidence. Parker v. State Ind. Acc. Comm., ( 1965) 242 Or 78, 408 P2d 94.

The Oregon State Bar fee schedule is advisory only andnot binding on the courts. Id.

An appeal was authorized from finding of lower courtthat evidence was insufficient to sustain allegations of

answer filed by commission and dismissing answer withprejudice. Manke v. Nehalem Logging Co., ( 1956) 211 Or

211, 301 P2d 192, 315 P2d 539.

FURTHER CITATIONS: Ramseth v. Maycock, ( 1956) 209

Or 66, 304 P2d 415; Ellis v. Fallert, ( 1957) 209 Or 406, 307P2d 283.

656.388

NOTES OF DECISIONS

The right to an attorney fee under subsection ( 1) is dependent on establishing the right to compensation after anoriginal rejection of the claim. Peterson v. State Comp. Dept., ( 1970) 257 Or 369, 477 P2d 216, rev' g 2 Or App 412, 467 P2d 976; Grudle v. State Acc. Ins. Fund, ( 1970) 4 Or

App 326, 479 P2d 250. The commission rather than the court shall determine

the amount to be allowed a claimant for attorney's fees. Franklin v. State Ind. Acc. Comm., ( 1954) 202 Or 237, 274

P2d 279.

An award of attorney fees is contingent on claimant'sprevailing in an appeal. Leech v. Georgia -Pac. Corp., ( 1969)

254 Or 351, 458 P2d 438, 460 P2d 359.

Claimant who successfully appeals board' s decision mustpay attorney's fees from his award of compensation. Baileyv. Morrison- Knudsen Co., ( 1971) 5 Or App 592, 485 P2d 1254.

Allowing larger attorney fees than was alleged by plaintiff to be reasonable was error. Parker v. State Ind. Acc.

Comm., ( 1965) 242 Or 78, 408 P2d 94.

FURTHER CITATIONS: King v. State Ind. Acc. Comm., 1957) 211 Or 40, 309 P2d 159, 315 132d 148, 318 P2d 272;

Uris v. State Comp. Dept., ( 1967) 247 Or 420, 427 P2d 753,

430 P2d 861; Shupe v. State Comp. Dept., ( 1967) 248 Or 129,

432 P2d 793.

656.388

NOTES OF DECISIONS

1. Approval of fee2. Dispute of fee

3. Payment of fee in lump sum from award4. Fee as a lien

1. Approval of fee

The fee schedules approved by the state bar governorsassist courts in determining fees in compensation cases. Hinkle v. Ind. Acc. Comm., ( 1940) 163 Or 395, 97 P2d 725;

Cox v. Ind. Acc. Comm., ( 1942) 168 Or 508, 121 P2d 919,

123 P2d 800.

Fixing a fee in a different manner or to a greater extentthan the statute provides the workman shall be paid is not

664

SUPERSEDED

within the authority of the court or commission. Carr v. Ind. Acc. Comm., ( 1936) 153 Or 517, 57 P2d 1278.

A fee in addition to the compensation allowed by thecommission is not authorized by this section. Davis v. Ind. Acc. Comm., ( 1937) 156 Or 393, 64 P2d 1330, 66 P2d 279,

68 P2d 118.

The courts fix the manner of paying attorney' s fees, exercising discretion in each case. Cox v. Ind. Acc. Comm.,

1942) 168 Or 508, 121 P2d 919, 123 P2d 800.

The nature and extent of a workman' s injury should beconsidered in determining the reasonableness of his attorney' s fees. Id.

The court should consider the purpose of the law and

the fact that fees were made subject to supervision by thecommission and the courts in determining the reasonableness of a fee. Id.

The commission rather than the court had the power to

determine the amount to be allowed a claimant for attor-

ney' s fees. Franklin v. State Ind Acc. Comm., ( 1954) 202

Or 237, 274 P2d 279.

2. Dispute of fee

Only where the client and attorney have agreed upon theamount of the fee may the courts or commission approveunder this statute; if a dispute arises, then the court mayadjust the dispute after the parties have submitted state-

ments. Davis v. Ind. Acc. Comm., ( 1936) 156 Or 393, 64 P2d

1330, 66 P2d 279, 68 P2d 118.

Where a plaintiff has repudiated her letter manifestingsatisfaction of an attorney' s fees, a motion for the approvalof the fee should be denied. Id.

3. Payment of fee in lump sum from awardWhere the reasonableness of the attorney' s fee is not

challenged and there are accrued instalments sufficient to

pay it without prejudice to the beneficiary, the court mayorder a lump sum payment. Cox v. Ind. Acc. Comm., ( 1942)

168 Or 508, 121 P2d 919, 123 P2d 800.

The commission could raise the question of the circuit

court's authority to award attorney's fees in a lump sumfor gaining additional compensation to a claimant on appealto the circuit court. Verban v. Ind. Acc. Comm., ( 1942) 168

Or 394, 123 P2d 988.

Where an award was increased through the attorney'sefforts on appeal to the circuit court, the court could not

award his fee in a lump sum although the parties had soagreed; but the fee was required to be paid in monthlyinstalments when the additional compensation was paid to

the workman. Id.

An attorney was not entitled to a lump sum paymentfor procuring additional compensation unless a sufficientamount of the additional payments had accrued at the time

of judgment. Id.

4. Fee as a lien

Attorney' s fees when approved become a lien upon theaward with respect to which the attorney performed services. Verban v. Ind. Acc. Comm., ( 1942) 168 Or 394, 123

P2d 988.

Attorney' s fees are not a lien on the reserve fund butupon compensation. Id.

An attorney was not entitled to payment out of thereserve fund accumulated from monthly payments awardedby the commission, and further compensation gained onappeal to the circuit court had not yet become due. Id.

FURTHER CITATIONS: White v. State Ind. Acc. Comm.,

is ( 1961) 227 Or 306, 362 P2d 302; In re Lee, ( 1965) 242 Or 302,

409 P2d 337; Peterson v. State Comp. Dept., ( 1970) 257 Or

369, 477 P2d 216, rev'g 2 Or App 412, 467 P2d 976; Baileyv. Morrison - Knudsen Co., (1971) 5 Or App 592, 485 P2d 1254.

656.522

ATTY. GEN. OPINIONS: Proceedings involving legal services in respect to claims for compensation as not subject

to filing or court fees, 1934 -36, p 105.


656.401

CASE CITATIONS: Cutright v. Am. Ship Dismantler, (1971) 92 Or App Adv Sh 1687, 486 P2d 591.

656.405

ATTY. GEN. OPINIONS: Imposition of retaliatory tax oninsurer who pays employer's assessments, 1966 -68, p 392; charging administrative costs of handling securities deposited with State Treasurer by direct responsibility employers, 1966 -68, p 594.

656.442

CASE CITATIONS: Berry v. State Ind. Acc. Comm., ( 1964)

238 Or 39, 393 P2d 184.


656.504

NOTES OF DECISIONSAn employer has not such financial interest in a compen-

sation proceeding, by virtue of 1933, ( 2d s.s.) amendment, that his admissions against interest are admissible in evi-

dence. Wise v. Ind. Acc. Comm., ( 1934) 148 Or 461, 35 P2d

242.

FURTHER CITATIONS: M & M Wood Working Co. v. State Ind. Acc. Comm., ( 1954) 201 Or 603, 271 P2d 1082;

Bos v. State Ind. Acc. Comm., ( 1957) 211 Or 138, 315 P2d

172; State Comp. Dept. v. Beaver Creek Lbr. Co., Inc., (1971) 5 Or App 1, 480 P2d 441, Sup Ct review denied.

ATTY. GEN. OPINIONS: Rate of contribution by employerengaged in mining, who employs men to maintain ditchesand repair buildings, and also blacksmiths, 1934 -36, p 487; fusing wage for compensation not in cash, 1962 -64, p 111; crediting interest on invested funds, 1964 -66, p 31.

656.506

ATTY. GEN. OPINIONS: Computing employe' s contribution on basis of days actually on the job, 194042, p 531; compulsory contribution to fund by justices and judges, 1960 -62, p 7; crediting interest on invested funds, 1964 -66, p 31; authority of legislature to extend use of Second InjuryReserve funds to rehabilitation facilities, ( 1971) Vol 35, p571.

665

658.508

ATTY. GEN. OPINIONS: Authority of commission to de- viate from rates established, 1930 -32, p 661; rate of coveragein connection with coast bridges to be constructed by StateHighway Commission, 1932 -34, p 621; fixing wage for compensation not in cash, 1962 -64, p 111.


656.522


SUPERSEDED

656.524

656.524


656.526

CASE CITATIONS: Lucas v. State Ind. Ace. Comm., ( 1960)

222 Or 420, 353 P2d 223.

ATTY. GEN. OPINIONS: Disposition of dividends on premiums paid from particular funds of certain state agencies

or divisions, ( 1971) Vol 35, p 504.

656.530

ATTY. GEN. OPINIONS: Authority of legislature to extenduse of Second Injury Reserve funds to rehabilitation facilities, ( 1971) Vol 35, p 571.

65& 552

NOTES OF DECISIONS

This section and ORS 656.554 were not intended to au-

thorize the use of the injunction to coerce an employer to

pay an existing indebtedness arising from his failure to paycontributions, but to permit its use to prevent a financiallyirresponsible employer from incurring future indebtednesswithout first securing its payment by making a deposit orfiling a bond in a sum equal to the contributions due uponhis estimated payroll for a period of three months. Ind. Ace.

Comm. v. Miller, ( 1945) 177 Or 310, 162 P2d 146.

Under this section and ORS 656.554, a positive duty isimposed on the court to grant injunctive relief when the

conditions set forth in the statutes are made to appear. Id.

ATTY. GEN. OPINIONS: Meaning of " contributions;' 1940 -42, p 659.

656.554

NOTES OF DECISIONS


656.560

NOTES OF DECISIONS

The commission [ now fund) is a body corporate for thepurpose of collecting money upon default of the employer. Butterfield v. Ind. Ace. Comm., ( 1924) 111 Or 149, 223 P

941, 226 P 216.

A discharge in bankruptcy did not discharge a judgmenttheretofore rendered against an employer for unpaid, over-

due exactions which were required under the workman' s

compensation law, and constituted a tax levied by the statewithin an exemption in the bankruptcy Act. Ind. Ace. Comm. v. Aebi, ( 1945) 177 Or 361, 162 P2d 513, 161 ALR

211.

In the absence of a requirement that the demand be made

within a definite time after the payments are due, it must

have been intended by the legislature that the usual billingto the employer by the state upon no payment having beenmade by the due date constituted the contemplated demand. State Comp. Dept. v. Beaver Creek Lbr. Co., ( 1971) 5 Or

App 1, 480 P2d 441, Sup Ct review denied.

FURTHER CITATIONS: Allen v. State Ind. Ace. Comm.,

1954) 200 Or 521, 265 P2d 1086.

65& 562

NOTES OF DECISIONS

A discharge in bankruptcy did not discharge a judgment

theretofore rendered against an employer for unpaid, over-

due exactions which were required under the workman's

compensation law, and constituted a tax levied by the statewithin an exemption in the bankruptcy Act. Ind. Ace. Comm. v. Aebi, ( 1945) 177 Or 361, 162 P2d 513, 161 ALR

211.

656.564

NOTES OF DECISIONS

This provision is not unconstitutional as taking propertywithout due process of law. White's Market v. Dixie Creek

Min. Co., ( 1938) 159 Or 406, 80 P2d 712.

Lien by the commission upon unsatisfied judgment infavor of bankrupt imposed independent liability on debtoreven if bankrupt was found not to be liable. Northeast

Clackamas County Elec. Corp. v. Continental Cas. Co., 1955) 140 F Supp 903.

A lien created by this section is not prior to a lien forunpaid federal taxes assessed after notice of the state lienis filed but before a decree to foreclose it is entered. Bank

of Lebanon v. J & W Lbr. Co., ( 1968) 252 Or 407, 448 P2d

367.

FURTHER CITATIONS: State Comp. Dept. v. Beaver CreekLbr. Co., ( 1971) 5 Or App 1, 480 P2d 441, Sup Ct reviewdenied.

ATTY. GEN. OPINIONS: Notation on certificate of title of

motor vehicle by Secretary of State of existence of liencreated by this section, 1948 -50, p 302.


65& 566

ATTY. GEN. OPINIONS: Authority of commission tocharge unpaid balance due to loss and gain, 1938 -40, p 725; notation on certificate of title of motor vehicle by Secretaryof State of existence of lien created by this section, 1948 -50, p 302.


656.576 to 656.595

NOTES OF DECISIONSAn agreement, between an employe and an employer

rejecting the Act, that limited compensation to the employeif injured to the amount afforded by the Act was valid. Lowe v. Socony Mobil Oil Co., ( 1963) 222 F Supp 624.

FURTHER CITATIONS: Johnson v. Dave' s Auto Center,

Inc., ( 1970) 257 Or 34, 476 P2d 190.

656.576

CASE CITATIONS: Newell v. Taylor, (1958) 212 Or 522, 321

P2d 294; Lowe v. Socony Mobil Oil Co., ( 1963) 222 F Supp624.

65& 578

NOTES OF DECISIONS

When an election has once been made to take under the

law, the cause of action automatically inures to the stateand no longer abides with the injured workman; thereafterthe state alone can sue and that for the benefit of the

accident fund. King v. Union Oil Co., ( 1933) 144 Or 655,

24 P2d 345, 25 P2d 1055; Holmes v. Henry Jenning & Sons,

1921) 7 F2d 231.

The complaint of a workman injured away from the plant

666

SUPERSEDED

of his employer against a third person not in the same

employ who negligently caused the injury need not allegefacts bringing his cause within the exception to the ruleconfining his remedy for compensation to the workmen' scompensation law. Walter v. Turtle, (1934) 146 Or 1, 29 P2d517.

ORS 656.312 to 656.324 [ now ORS 656.578 to 656.5951permit an employe to sue a third person even after he has

received an award of compensation from the commission.

Kosmecki v. Portland Stevedoring Co., ( 1950) 190 Or 85,

223 P2d 1035.

Neither the injured workman nor his beneficiaries must

elect at their peril whether to take under the Act or sue

delinquent employer or third party. Manke v. NehalemLogging Co., ( 1957) 211 Or 211, 301 P2d 192, 315 P2d 539.

Plaintiff, who had received an award from State Industri-

al Accident Commission, unless she denied receiving benefits, must allege and show she comes under one of these

exceptions in order to bring action against her employer. Bandy v. Norris, Beggs and Simpson, ( 1959) 222 Or 1, 342P2d 839.

Acceptance of benefits under the Act amounts to an

election not to proceed against a third party. Wimer v. Miller, ( 1963) 235 Or 25, 383 P2d 1005.

Workman who elected to receive benefits under the Act

and assigned claim to the commission was not estopped

from bringing common law action without reassignmentof the claim. Newell v. Taylor, ( 1958) 212 Or 522, 321 P2d294.

An employe who accepted compensation for the mal-

practice of a physician before the final award and for injuries sustained in the course of his employment, was not

entitled to maintain an action against the physician for

malpractice. McDonough v. Nat. Hosp. Assn., ( 1930) 134 Or

451, 294 P 351.

FURTHER CITATIONS: Holmes v. State Ind. Acc. Comm.,

1961) 227 Or 562, 582, 362 P2d 371, 363 P2d 563; Oregon

Farm Bureau v. Thompson, ( 1963) 235 ,Or 162, 378 P2d 563, 384 P2d 182.

LAW REVIEW CITATIONS: 13 OLR 72; 23 OLR 202; 2 WLJ48-55.

CASE CITATIONS: Wimer v. Miller, ( 1963) 235 Or 25, 383

P2d 1005; Oregon Farm Bureau v. Thompson, ( 1963) 235

Or 162, 378 P2d 563, 384 P2d 182.


CASE CITATIONS: Wimer v. Miller, ( 1963) 235 Or 25, 383P2d 1005.


FURTHER CITATIONS: Wimer v. Miller, (1963) 235 Or 25, 383 P2d 1005.

656.591

NOTES OF DECISIONS


Workman who elected to receive benefits under the Act

and assigned claim to the commission was not estopped

from bringing common law action without reassignment

656.595

of the claim. Newell v. Taylor, ( 1958) 212 Or 522, 321 P2d

294.

FURTHER CI' T'ATIONS: Williamson v. Weyerhaeuser Tbr.

Co., ( 1955) 221 F2d 5; Wimer v. Miller, ( 1963) 235 Or 25,

383 P2d 1005.


656.593

CASE CITATIONS: Dewitz v. Columbia R. Paper Co., ( 1964)

237 Or 623, 391 P2d 613; Peterson v. State Farm Mut. Auto.

Ins. Co., ( 1964) 238 Or 106, 393 P2d 651.

ATTY. GEN. OPINIONS: Authority of commission to allowan injured employe to retain portion of compensation ad-

vanced to reimburse him for expenses he incurred in a

third -party action, 194446, p 244.


656.595

NOTES OF DECISIONS

An order denying a third party' s challenge of a plaintiffsright to maintain an action is not final, hence not appealable

in absence of statutory authorization by this section or ORS656.582 [ now ORS 656.384]. Ahern v. Settergren, ( 1947) 180Or 287, 176 P2d 645.

When the question of coverage is presented as an affir-

mative defense, the trial court should resolve that question

before trial upon the issues. Pruett v. Lininger, ( 1960) 224

Or 614, 356 P2d 547.

This section did not violate Ore. Const. Art. I, § 17 or Art.

VII(A), §3, guaranteeing the right to jury trial. Cornelisonv. Seabold, ( 1969) 254 Or 401, 460 P2d 1009.

On appeal of proceedings under subsection ( 3), the court

is bound by findings of trial court supported by the evidenceand will not review the findings de novo. Id.

In an action for personal injuries resulting from an automobile and bus collision, the trial court properly overruledplaintiffs objection to the introduction in evidence of hisapplication for compensation made to the commission

which was offered to disclose to the jury that plaintiff madestatements therein inconsistent with his testimony in court. Cavett v. Pac. Greyhound Lines, ( 1946) 178 Or 363, 167 P2d941.

Where the amended complaint directly alleged defendantwas the employer of plaintiff, a third -party action was notinvolved and the defendant' s challenges were insufficient

under this section. Bandy v. Norris, Beggs and Simpson, 1959) 222 Or 1, 342 P2d 839.

Admission into evidence of fee paid to plaintiffs doctorin an attempt to show claimed doctor' s fees were unreason-

able was reversible. Burnett v. Hernandez, ( 1959) 263 F2d

212.

FURTHER CITATIONS: Plummer v. Donald M. Drake Co.,

1958) 212 Or 430, 320 P2d 245; Long v. Springfield Lbr. Mills, Inc., ( 1958) 214 Or 231, 327 P2d 421; Stout v. Derringer,

1959) 216 Or 1, 337 P2d 357; Byers v. Hardy, ( 1959) 216Or 42, 337 P2d 806; Claussen v. Ireland, ( 1959) 216 Or 289,

338 P2d 676; Beers v. Chapman, ( 1962) 230 Or 553, 370 P2d941; Childers v. Schaecher Lbr. Co., ( 1963) 234 Or 230, 380

P2d 993; Wimer v. Miller, ( 1963) 235 Or 25, 383 P2d. 1005; Dewitt v. Columbia R. Paper Co., ( 1964) 237 Or 623, 391

P2d 613; Peterson v. State Farm Mut. Auto. Ins. Co., ( 1964)

238 Or 106, 393 P2d 651; Hadeed v. Willamette Hi -GradeConcrete Co., ( 1964) 238 Or 513, 395 P2d 553; Dlouhy v. Simpson Tbr. Co., ( 1967) 247 Or 571, 431 P2d 846; Carlston

667

SUPERSEDED

656.602

v. Greenstein, ( 1970) 256 Or 145, 471 P2d 806; Green v

Market Sup. Co., ( 1971) 257 Or 451, 479 P2d 736.


656.602

NOTES OF DECISIONS

The manner provided by this section for payments fromthe accident fund does not render the compensation law

unconstitutional. Butterfield v. Ind. Ace. Comm., ( 1924) 111

Or 149, 223 P 941, 226 P 216.

That the commission is a mere agency of the state withnone of the usual functions of a corporation, except to sue

and be sued, is indicated by this and other sections. In reC.O. Pick Co., ( 1925) 9 F2d 207.

FURTHER CITATIONS: Lucas v. State Ind. Ace. Comm., 1960) 222 Or 420, 353 P2d 223.

656.612

ATTY. GEN. OPINIONS: Fee for examining and reviewingfiles and furnishing report, 195456, p 222; imposition ofretaliatory tax on insurer who pays employer' s assessments, 1966 -68, p 392.

656.616


222 Or 420, 353 P2d 223.

ATTY. GEN. OPINIONS: Vocational rehabilitation pro-

grams under State Industrial Accident Commission and

State Board of Education, 1958 -60, p 30; vocational rehabilitation services by State Industrial Accident Commission, 1958 -60, p 30; vocational rehabilitation by commission asmandatory, 1962 -64, p 449.


656.622

CASE CITATIONS: Mansfield v. Caplener Bros., ( 1970) 3

Or App 448, 474 P2d 785.

ATTY. GEN. OPINIONS: Authority of legislature to extenduse of reserve to rehabilitation facilities, ( 1971) Vol 35, p571.

656.624

ATTY. GEN. OPINIONS: Fees of expert witnesses, 1954 -56,

p 222; per diem and mileage of nonresident witness, 1954 -56, p 222.

656.632

NOTES OF DECISIONS

For the purpose of supporting an action in its name asa party to a case involving a claim against this fund thecommission is a corporation, though not in the ordinarysense of the word. Butterfield v. Ind. Ace. Comm., ( 1924)

111 Or 149, 223 P 941, 226 P 216. The fund is a trust fund which must be administered in

accordance with statutory provisions. Middlebusher v. Ind. Ace. Comm., ( 1934) 147 Or 459, 34 P2d 325.

Lumber companies were proper parties to question va-

lidity of a law authorizing the use of this fund for theconstruction of state office buildings. Eastern & Western

Lbr. Co. v. Patterson, ( 1928) 124 Or 112, 258 P 193, 264 P

441.

ATTY. GEN. OPINIONS: Fund as " public money of thestate," 1964 -66, p 23; crediting interest on invested funds, 1964 -66, p 31; validity of transfer of funds, 1964 -66, p 205.


656.634

NOTES OF DECISIONS

Ore. Const. Art. XI, §6 is not violated by the investmentof moneys from the fund in corporate stocks. Sprague v. Straub, ( 1969) 252 Or 507, 451 P2d 49. '

ATTY. GEN. OPINIONS: Authority of commission to- fur- nish services or expend money for or to employers whohave rejected the workmen' s compensation law, 1942 -44,

p 104; charge for cost of care in State Tuberculosis Hospital, 1962 -64, p 72; statement of dollar cost of initiative amendment, 1964 -66, p 23; crediting interest on invested funds, 1964 -66, p 31.

656.636

NOTES OF DECISIONS

The fund provided by this provision amounts to nothingmore than setting up a reserve to meet a contingent liability. Until money is actually paid out to the claimant no costhas been incurred, unless it be in some technical, accountingsense. Bell v. Ind. Ace. Comm., ( 1937) 157 Or 653, 74 P2d

55; Verban v. Ind. Ace. Comm., ( 1942) 168 Or 394, 123 P2d988.

Attorney fees are not a Gen on the reserve fund createdby this section which does not become compensation untilpaid to the workman, Verban v. Ind. Ace. Comm., ( 1942)

168 Or 394, 123 P2d 988.

An attorney was not entitled to a lump sum paymentout of this fund accumulated from monthly paymentsawarded by the commission, and the further compensationgained for the workman by the attorney on appeal to thecircuit court had not become due. Id.

FURTHER CITATIONS: State ex rel. Sprague v. Straub, 1965) 240 Or 272, 400 P2d 229, 401 P2d 29.

ATTY. GEN. OPINIONS: Crediting interest on investedfunds, 1964 -66, p 32; effective date of benefits under 1965Act, 1964 -66, p 228.

656.638

ATTY. GEN. OPINIONS: Authority of legislature to extenduse of reserve to rehabilitation facilities, ( 1971) Vol 35, p571.

1* i,1K;1


222 Or 420, 353 P2d 223.

656.704

CASE CITATIONS: Lawton v. State Ace. Ins. Fund, ( 1971)

5 Or App 539, 485 P2d 1104.

658.712

NOTES OF DECISIONS

The constitutionality of the Act creating the commissionwas upheld under Ore. Cont. Art III, §l, relating to separation of powers. Evanhoff v. Ind. Ace. Comm., ( 1915) 78

Or 503, 154 P 106.

This is not a special Act creating a corporation in contra-

668

SUPERSEDED

vention of Ore. Const. Art XI, § 2, as the commission is

not a municipal corporation. Butterfield v. Ind. Acc. Comm.,

1924) 111 Or 149, 223 P 941, 226 P 216.

The commission is a mere agency of the state, not acorporation. In re C.O. Pick Co., ( 1925) 9 F2d 207.

FURTHER CITATIONS: Ramseth v.•Maycock, ( 1956) 209

Or 66, 304 P2d 415.

ATTY. GEN. OPINIONS: Governor' s power to apply forfederal loan for fund, 1956 -58, p 290.

656.716

ATTY. GEN. OPINIONS: Limitations on political activities

of committee members, 1966 -68, p 473.

656.718

NOTES OF DECISIONS

That the commission had acted upon a claim could notbe inferred from the fact that one member discussed it and

turned it over to the clerk for filing. Wooldridge v. Arens, 1940) 164 Or 410, 98 P2d 1, 102 P2d 717.

656.722

NOTES OF DECISIONS

The commission is not estopped from denying compensation by the unauthorized acts of officers charged with administration of the fund. Allen v. State Ind. Acc. Comm.,

1954) 200 Or 521, 265 P2d 1086.

ATTY. GEN. OPINIONS: Physician employed by commission as not entitled to compensation for expert testimonyin hearing against commission, 1920 -22, p 328; eligibility ofdean of medical school as supervisor of physiotherapy forthe commission, 1920 -22, p 348; oath of office of assistants, 1930 -32, p 475; eligibility of chief medical director of thecommission as member of the Board of Medical Examiners,

1936 -38, p 528.

656.724

CASE CITATIONS: Schulz v. State Comp: Dept., ( 1968) 252

Or 211, 448 P2d 551.

658.726

NOTES OF DECISIONS

Commissioners can act only on the basis prescribed bystatute and they cannot depart from the line of their duty. Rohde v. Ind. Acc. Comm., ( 1923) 108 Or 426, 217 P 627.

The incidental judicial function of the commission in

carrying out its duty to administer the law does not renderthe law unconstitutional. Butterfield v. Ind. Acc. Comm., 1924) 111 Or 149, 223 P 941, 226 P 216.

The commission is a creature of the legislature and is

a body corporate for the purpose of supporting a proceedingagainst it. Butterfield v. Ind. Acc. Comm., ( 1924) 111 Or

149, 223 P 941, 226 P 216; State ex rel Weinsgorge v. Reid, 1960) 221 Or 558, 352 P2d 466. Butterfield v. Ind. Acc.

Comm., supra, distinguished In In re C. O. Pick Co., ( 1925)

9 F2d 207.

The commission is not a corporation included within the

definition of " any person" in the Federal Bankruptcy Act. In re C.O. Pick Co., ( 1925) 9 F2d 207.

A claim pending before the commission cannot be submitted to arbitration before an appeal from its decision.

Maroulas v. Ind. Acc. Comm., ( 1926) 117 Or 406, 244 P 317.

ATTY. GEN. OPINIONS: Authority of commission to com-

656.802

promise claims where there is a doubt as to their validityor ability to collect them in. full, or other circumstancesmaking it beneficial for commission to do so, 1942 -44, p218; fee for examining and reviewing files and furnishingreport, fees of. expert witnesses, per diem and mileage of

nonresident witness, 195456, p 222.


656.728

ATTY. GEN. OPINIONS: Vocational rehabilitation pro-

grams under State Industrial Accident Commission and

State Board of Education, 1958 -60, p 30; vocational rehabilitation services by State Industrial Accident Commission, 1958 -60, p 30; conformance to the " single agency" rule, responsibility for vocational rehabilitation, 1962 -64, p 449.

656.732


656.752

CASE CITATIONS: Neet v. State Comp. Dept., ( 1966) 244

Or 331, 417 P2d 996; Harp v. State Comp. Dept., ( 1967) 247

Or 129, 427 P2d 981.

ATTY. GEN. OPINIONS: Attorney General as counsel forthe department, 1966 -68, p 449.

65 &754

ATTY. GEN. OPINIONS: Attorney General as counsel forthe department, 1966 -68, p 449.

656.758

NOTES OF DECISIONS

That a foreign vessel is not subject to the Oregon work-

men's compensation law is indicated by this and othersections. Spitzer v. " Annette Rolph," ( 1924) 110 Or 461, 218

P 748, 223 P 253.

ATTY. GEN. OPINIONS: Duty to permit inspection although records cover employes whom employer considers

not subject to law, 1920 -22, p 83.

65 &790

ATTY. GEN. OPINIONS: Limitations on political activities

of committee members, 1966 -68, p 473.

656.802 to 656.824

CASE CITATIONS: White v. State Ind. Acc. Comm., ( 1961)

227 Or 306, 362 P2d 302; Pavlicek v. State Ind. Acc. Comm., 1963) 235 Or 490, 385 P2d 159; Evoniuk v. Great Am. Ins.

Co., (1967) 246 Or 75, 424 P2d 216; Barr v. State Comp. Dept., 1970) 1 Or App 432, 463 P2d 871; Johnson v. State Acc.

Ins. Fund, (1971) 5 Or App 201, 483 P2d 472; Lawton v. StateAcc. Ins. Fund, ( 1971) 5 Or App 539, 485 P2d 1104.

656.802

NOTES OF DECISIONS

An occupational disease may arise from familiar harmfulelements present in an unusual degree: Beaudry v. Win- chester Plywood Co., ( 1970) 255 Or 503, 469 P2d 25; Sowell

v. Workmen' s Comp. Bd., ( 1970) 2 Or App 545, 470 P2d 953. The scope and meaning of occupational disease are mat-

ters of law not fact and are proper matters for the cogni-

669

SUPERSEDED

656.804

zance of the circuit court. Beaudry v. Winchester PlywoodCo., ( 1970) 255 Or 503, 469 P2d 25.

An occupational disease within the meaning of this statute is not limited in scope to disease or infection caused

by actual work exertion, or which had its inception in theemployment. Id.

The sufficiency of evidence to overcome the presumptionstated by subsection ( 2) is a question of fact for the medicalboard of review. Johnson v. State Acc. Ins. Fund, ( 1971)

5 Or App 201, 483 P2d 472.

FURTHER CITATIONS: Blalock v. Portland, ( 1955) 206 Or74, 291 P2d 218; Dodd v. State Ind. Acc. Comm., ( 1957) 211

Or 99, 310 P2d 324, 311 P2d 458, 315 P2d 138; Lawton v.

State Acc. Ins. Fund, ( 1971) 5 Or App 539, 485 P2d 1104.

LAW REVIEW CITATIONS: 2 WLJ 16, 20 -23.

656.804

NOTES OF DECISIONS

Subsection ( 2) exempts rejecting employers from theEmployer' s Liability Law if the action arose out of occupational disease. Concannon v. Ore. Portland Cement Co., 1968) 252 Or 1, 447 P2d 290.

FURTHER CITATIONS: Dodd v. State Ind. Acc. Comm.,

1957) 211 Or 99, 310 P2d 324, 311 P2d 458, 315 P2d 138;

White v. State Ind. Acc. Comm., ( 1961) 227 Or 306, 362 P2d

302; Beaudry v. Winchester Plywood Co., ( 1970) 255 Or 503,

469 P2d 25; Sowell v. Workmen' s Comp. Bd., ( 1970) 2 Or

App 545, 470 P2d 953.

ATTY. GEN. OPINIONS: Recovery for a second attack ofthe disease, 1944 -46, p 122; second attack of disease as anew injury, 1944 -46, p 122.


656.807

NOTES OF DECISIONS

The review of the circuit court and appellate courts is

limited to questions not within the cognizance of the medi-

cal board of review. Beaudry v. Winchester Plywood Co., 1970) 255 Or 503, 469 P2d 25; Johnson v. State Acc. Ins.

Fund, ( 1971) 5 Or App 201, 483 P2d. 472. The exception in subsection ( 4) was intended only to

encompass a review of the hearing officer's determination; the balance of the subsection authorizes review of a circuit

court decision by an appellate court. Beaudry v. WinchesterPlywood Co., ( 1970) 255 Or 503, 469 P2d 25.

The scope and meaning of the statutory definition ofoccupational disease is a proper matter for review by thecircuit court. Id.

FURTHER CITATIONS: Hiles v. State Comp. Dept., ( 1970)

2 Or App 506, 470 P2d 165; Lawton v. State Acc. Ins. Fund, 1971) 5 Or App 539, 485 P2d 1104.

656.808

NOTES OF DECISIONS

A final order is one which determines the rights of the

parties so that no further questions can arise before the

tribunal rendering it, except those necessary to be determined in carrying it into effect. Hiles v. State Comp. Dept., 1970) 2 Or App 506, 470 P2d 165.

FURTHER CITATIONS: Beaudry v. Winchester PlywoodCo., ( 1970) 255 Or 503, 469 P2d 25; Sowell v. Workmen's

Comp. Bd., ( 1970) 2 Or App 545, 470 P2d 953; Johnson v.

State Acc. Ins. Fund, ( 1971) 5 Or App 201, 483 P2d 472; Lawton v. State Acc. Ins. Fund, ( 1971) 5 Or App 539, 485P2d 1104.

656.810

NOTES OF DECISIONS

The procedural sections for review are not severable fromthe remainder of the Occupational Disease Law. Pavlicekv. State Ind. Acc. Comm., ( 1963) 235 Or 490, 385 P2d 159.

All questions to be considered on appeal should be specified in the original notice of appeal. Beaudry v. WinchesterPlywood Co., ( 1970) 255 Or 503, 469 P2d 25.

The circuit court does not acquire jurisdiction to review

the order of a hearing officer unless that order is final. Hilesv. State Comp. Dept., ( 1970) 2 Or App 506, 470 P2d 165.

The order of the hearing officer was not a final order. Id.

FURTHER CITATIONS: White v. State Ind. Acc. Comm.,

1961) 227 Or 306, 362 P2d 302; Chetney v. Western FoundryCo., ( 1970) 255 Or 165, 464 P2d 833; Sowell v. Workmen' s

Comp. Bd., ( 1970) 2 Or App 545, 470 P2d 953; Johnson v. State Acc. Ins. Fund; ( 1971) 5 Or App 201, 483 P2d 472; Lawton v. State Acc. Ins. Fund, ( 1971) 5 Or App 539, 485P2d 1104.

656.812

NOTES OF DECISIONS

Mandamus is proper remedy to require the medical boardof review to answer questions required by this section. Sowell v. Workmen' s Comp. Bd., ( 1970) 2 Or App 545, 470P2d 953; Lawton v. State Acc. Ins. Fund, ( 1971) 5 Or App539, 485 P2d 1104.

The medical board's duties and jurisdiction were limited

to an examination of the claimant and answering the statu-

tory questions. White v. State Ind. Acc. Comm., ( 1961) 227

Or 306, 362 P2d 302.

The procedural sections for review are not severable from

the remainder of the Occupational Disease Law. Pavlicek

v. State Ind. Acc. Comm., ( 1963) 235 Or 490, 385 P2d 159.

The findings of the medical board of review are final and

binding as to factual matters relating to the field of medicine but not as to matters of law. Beaudry v. WinchesterPlywood Co., ( 1970) 255 Or 503, 469 P2d 25.

In an occupational disease case, the hearing officer is notrequired to make the findings specified by this section. Id.

The sufficiency of evidence to overcome the presumptionstated by ORS 656.802 ( 2) is a question for the board. John- son v. State Acc. Ins. Fund, ( 1971) 5 Or App 201, 483 P2d472.

670


656.814

NOTES OF DECISIONS

The legislature did not intend a dissatisfied claimant to

have right of appeal with a jury trial de novo. Dodd v. StateInd. Acc. Comm., ( 1957) 211 Or 99, 310 P2d 324, 311 P2d458, 315 P2d 138.

The medical board' s duties and jurisdiction were limited

to an examination of the claimant and answering the statutory questions. White v. State Ind. Acc. Comm., ( 1961) 227

Or 306, 362 P2d 302.

The procedural sections for review are not severable fromthe remainder of the Occupational Disease Law. Pavlicekv. State Ind. Acc. Comm., ( 1963) 235 Or 490, 385 P2d 159.

FURTHER CITATIONS: Chetney v. Western Foundry Co., 1970) 255 Or 165, 464 P2d 833; Beaudry v. Winchester Ply-

wood Co., ( 1970) 255 Or 503, 469 P2d 25; Sowell v. Work-

SUPERSEDED

men' s Comp. Bd., ( 1970) 2 Or App 545, 470 P2d 953; Lawtonv. State Acc. ins. Fund, ( 1971) 5 Or App 539, 485 P2d 1104.

656.816

CASE CITATIONS: Hiles v. State Comp. Dept., ( 1970) 2 Or

App 506, 470 P2d 165.

671

656.818

ATTY. GEN. OPINIONS: Enlargement to two years of limi-

tation that permanent total disability occur within one year, by proviso, 1950 -52, p 22.

LAW REVIEW CITATIONS: 2 WI.J 16.

656.818


SUPERSEDED

Chapter 657

Unemployment Compensation

Chapter 657

NOTES OF DECISIONS

The Unemployment Compensation Law is remedial and

should be liberally construed. Puget Sound B. & D. Co. v.

State Unemp. Comp. Comm., ( 1942) 168 Or 614, 126 P2d

37; Journal Publishing Co. v. State Unemp. Comp. Comm., 1945) 175 Or 627, 657, 155 P2d 570; State Unemp. Comp.

Comm. v. Brown, ( 1960) 225 Or 306, 358 P2d 502. This law embraces other relations than that of master

and servant as understood at common law. Singer SewingMach. Co. v. State Unemp. Comp. Comm., ( 1941) 167 Or

142, 116 P2d 744.

The provision for taxation is incidental to the paramount

purpose of relief under the police power of the state. Id.

The overall purpose is beneficient in nature. Weyer-

haeuser Tbr. Co. v. State Unemp. Comp. Comm., ( 1959) 217

Or 378, 342 P2d 114.

FURTHER CITATIONS: Roberts v. State Unemp. Comp. Comm., ( 1958) 215 Or 100, 332 P2d 1067; State Unemp. Comp. Comm. v. Bates, ( 1959) 217 Or 121, 341 P2d 119; Oregon Farm Bureau v. Thompson, ( 1963) 235 Or 162, 183,

378 P2d 563, 384 P2d 182; Baker v. Cameron, ( 1965) 240 Or354, 401 P2d 691; Just -A -Mere Farm, Inc. v. Peet, ( 1967) 247

Or 413, 430 P2d 987; Willamette View Manor, Inc. v. Peet, 1968) 252 Or 142, 448 P2d 546; Dick v. Morgan, ( 1970) 2

Or App 437, 468 P2d 544; Golden Shear Barber Shop v. Morgan, ( 1970) 3 Or App 247, 471 P2d 858, rev' d. 258 Or105, 481 P2d 624; Morgan v. Harris, ( 1970) 3 Or App 402, 474 P2d 366.

ATTY. GEN. OPINIONS: Wages during disability as taxablewages, 1950 -52, p 32; public housing authority as employer, 1950 -52, p 35; acts by farmers' cooperative as " agriculturallabor," 1956 -58, p 78; supplemental unemployment benefitscompared to wages, 1956 -58, p 105; advances from the Fed- eral Government to Oregon account in Federal Unemploy- ment Trust Fund, 1956 -58, p 290; applicability to laborunions, 1958 -60, p 106; referral of farm workers to farminvolved in labor dispute, 1960 -62, p 129; tests applied todetermine coverage, 1960 -62, p 151; authority to lay offemployes of Department of Employment, 1962 -64, p 283; regulations on self- employment, 1962 -64, p 293; validity ofproposal to provide loans for vocational training, 1964 -66, p 73; coverage of Portland Housing Authority, 1966 -68, p12.


657.005

NOTES OF DECISIONS

The title of the Unemployment Compensation Law is not

so restrictive that it cannot be made to apply to a casewhere an unemployed independent contractor is seeking toenforce a claim thereunder. Singer Sewing Mach. Co. v. State Unemp. Comp. Comm., ( 1940) 167 Or 142, 103 P2d708.

657.010

ATTY. GEN. OPINIONS: Validity of amendment to definition of "wages," 1950 -52, p 374; discrepancies in bill extending coverage, 1950 -52, p 229, p 374; construing " benefityear," 1958 -60, p 106; filing initial claim while employed, construing "valid claim," 1958 -60, p 361; construing " benefityear," 1962 -64, p 377.

57.015

CASE CITATIONS: Golden Shear Barber Shop v. Morgan, 1971) 258 Or 105, 481 P2d 624.


657.020

NOTES OF DECISIONS

A barber providing utilities, license and furniture to otherbarbers who rented part of his shop in return for 25 percentof their income was an " employer." State Unemp. Comp. Comm. v. Brown, ( 1960) 225 Or 306, 358 P2d 502.

FURTHER CITATIONS: West Bearing & Parts, Inc. v. Peet,

1969) 253 Or 639, 456 P2d 993; Golden Shear Barber Shopv. Morgan, ( 1970) 3 Or App 247, 471 P2d 858, rev'd, 258 Or105, 481 P2d 624.

ATTY. GEN. OPINIONS: Labor union as " employing unit," 1958 -60, p 106; applicability to employes of the State Mili- tary Department not performing military duties, 1958 -60, p 227; Oregon Industries for the Blind as " employing unit," 1958 -60, p 388; authority of Portland Housing Authority tocome under this chapter, 1966 -68, p 12.

657.025

CASE CITATIONS: State Unemp. Comp. Comm. v. Bates, 1959) 217 Or 121, 341 P2d 119; Golden Shear Barber Shop

v. Morgan, ( 1971) 258 Or 105, 481 P2d 624.

ATTY. GEN. OPINIONS: Discrepancies in bill extendingcoverage, 1950 -52, p 229, p 374; Federal Government asemployer," 1954 -56, p 170; labor union as " employer,"

1958 -60, p 106; application to union employing officers regularly employed by Federal Government, 1958 -1960, p 415; regulations on self - employment, 1962 -64, p 293.

657.030

NOTES OF DECISIONS

A barber providing utilities, license and furniture to otherbarbers who rented part of his shop in return for 25 percentof their income was an " employer." State Unemp. Comp. Comm. v. Brown, ( 1960) 225 Or 306, 358 P2d 502.

Where employes were laid off for a period of three weeks

commencing December 21, remuneration received by themas holiday pay was to be considered as remuneration for

672

J

is

is

SUPERSEDED

C services performed in determining unemployment compensation benefits and as earned in weeks in which holidays.

fell, even though employes had to return to work on the

first day after the holiday to receive the pay. WeyerhaeuserTbr. Co. v. State Unemp. Comp. Comm., ( 1959) 217 Or 378,

342 P2d 114.

FURTHER CITATIONS: State Unemp. Comp. Comm. v. Bates, ( 1959) 217 Or 121, 341 P2d 119; Kirkpatrick v. Peet,

1967) 247 Or 204, 428 P2d 405; Golden Shear Barber Shopv. Morgan, ( 1971) 258 Or 105, 481 P2d 624.

ATTY. GEN. OPINIONS: Applicability to labor unions, 1958 -60, p 106; regulations on self - employment, 1962 -64, p293.

657.035

NOTES OF DECISIONS

In determining employment coverage, the various factors, in order of preference, are: ( 1) place where work- is " loca-

lized"; ( 2) situs of "base of operations "; ( 3) situs of " place

from which operations are directed and controlled "; and

4) situs of " employe' s residence." Puget Sound Bridge &

Dredging Co. v. State Unemp. Comp. Comm., ( 1942) 168

Or 614, 126 P2d 37.

Where shore facilities were maintained on Oregon shore,

the base of operations was in Oregon, although dredgingwork was done on both sides of the center of the Columbia

River. Id.

657.040

NOTES OF DECISIONS

1. In general

2. Construction

3. In particular cases

1. In general

The relationship between employer and employe must bedetermined by statutory definitions which are broader thanthe scope of employer - employe relation or that of master

and servant at common law. State Unemp. Comp. Comm. v. Brown, ( 1960) 225 Or 306, 358 P2d 502; Kirkpatrick v.

Peet, ( 1967) 247 Or 204, 428 P2d 405.

Once it is shown that the individual has performed service

for remuneration for an employer, the burden is on the one

who claims such a person is not under the Act to satisfythe commission that he comes- within its exceptions. State

Unemp. Comp. Comm. v. Brown, ( 1960) 225 Or 306, 358P2d 502; Kirkpatrick v. Peet, ( 1967) 247 Or 204, 428 P2d

405; Culp v. Peet, ( 1970) 3 Or App 406, 474 P2d 13; GoldenShear Barber Shop v. Morgan, ( 1971) 258 Or 105, 481 P2d624, rev'g 3 Or App 247, 471 P2d 858.

The burden is on the employer to establish the persons

were free from his control or direction. Union Ave. SocialClub, Inc. V. Peet, ( 1968) 249 Or 135, 437 P2d 730; Dick v.

Morgan, ( 1970) 2 Or App 437, 468 P2d 544. An employment relationship exists between a salesman

and the company whose products he sells on a commissionbasis and whose directions he must follow in respect to

sales campaigns. Singer Sewing Mach. Co. v. State Unemp. Comp. Comm., ( 1941) 167 Or 142, 116 P2d 744.

The reservation in an alleged employer of the power of

control, whether actually exercised or not, constitutes con-

trol. Journal Publishing Co. v. State Unemp. Comp. Comm., 1945) 175 Or 627, 155 P2d 570.

This section places the burden of persuasiveness upon

the one claiming that services performed are not employment, but it does not grant to the commissioner the power

to be arbitrary. Baker v. Cameron, ( 1965) 240 Or 354, 401P2d 691.

657.045

If the facts are not disputed the question of whether oneis an employe or the contractor of another is a question

of law. Id.

The commissioner was justified in determining that theservice performed prior to the enactment of ORS 657.087

was " employment." Id.

Employer did not establish lack of control or direction.

Union Ave. Social Club, Inc. v. Peet, ( 1968) 249 Or 135, 437

P2d 730.

2. Construction

With regard to OCLA 126 -702 [ ORS 657.420 and 657.4251, the elective provisions were intended to apply to thoseclasses of service, such as agricultural, domestic, etc., which

are expressly excluded from the term " employment" byOCLA 126 -702 [ ORS 657.045 to 657. 0901. Journal PublishingCo. v. State Unemp. Comp. Comm., ( 1945) 175 Or 627, 155

P2d 570.

The word " service," as used in this section, is a broad

descriptive term evidencing legislative intent to give thelaw a broad and liberal coverage. Id.

The word " remuneration" was used advisedly as one of

broad meaning in order that the objects of the law mightbe achieved. Id.

The question of control, under subsection ( 1), need not

be decided unless it is first determined that services were

performed for remuneration. Golden Shear Barber Shop v. Morgan, ( 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App247, 471 132d 858.

3. In particular cases

Provisions in the barber licensing law requiring supervision of apprentices do not conclusively turn the relationshipof supervising barber and apprentice into an employer- employe relationship under the Unemployment InsuranceLaw. Golden Shear Barber Shop v. Morgan, ( 1971) 258 Or105, 481 P2d 624, rev'g 3 Or App 247, 471 P2d 858.

A salesman selling products on a commission basis wasnot engaged' in an " independently established business" soas to be excluded from the provisions of the law. Singer

Sewing Mach. Co. v: State Unemp. Comp. Comm., ( 1941)

167 Or 142, 116 P2d 744.

A claimant who sold sewing machines for a manufacturerwas not " free from control or direction" and his services

were " employment" entitling him to benefits. Id.

FURTHER CITATIONS: State Unemp. Comp. Comm. v. Bates, ( 1959) 217 Or 121, 341 P2d 119.

ATTY. GEN. OPINIONS: Coverage of an owner -driver of

a logging truck as an employe, 1960 -62, p 151; regulationson self - employment, 1962 -64, p 293.


657.045

NOTES OF DECISIONS

A commercial packing house, which performed its services on a commission basis, and title to the fruit remained

in farmer while in the packing house, was not a " terminalmarket." Roberts v. State Unemp. Comp. Comm., ( 1958)

215 Or 100, 332 P2d 1067.

Agricultural labor includes work performed in commercial

packing houses in the preparation of fruits and vegetablesfor market. Id.

The work of plaintiffs employes did not constitute agri-

cultural labor within the meaning of this section. Just -A- Mere Farm, Inc. v. Peet, ( 1967) 247 Or 413, 439 P2d 87.

ATTY. GEN. OPINIONS: Acts by farmer's cooperative as,

673

SUPERSEDED

657.047

agricultural labor," 1956 -58, p 78; applicability to migrantagricultural workers, ( 1970) Vol 35, p 305.


657.047


657.050

ATTY. GEN. OPINIONS: Employment within this exemption, 1944 -46, p 138.

NOTES OF DECISIONS

Services performed by an employe upon a vessel in orderto be excluded from the provisions hereof must substan-

tially tend to promote the welfare of the vessel as an agencyof navigation; it is not sufficient if they are merely incidental thereto. Puget Sound Bridge & Dredging Co. v. StateUnemp. Comp. Comm., ( 1942) 168 Or 614, 126 P2d 37.

The fireman of an engine on a drill barge being used todeepen and widen a river channel, and to propel the barge,

was not a " member of a crew." Id.

657.060

ATTY. GEN. OPINIONS: The service of the father of one

partner performed in the employ of a partnership of whichhis child was one of the partners and the other partners

were not his children as employment under the compensa-

tion law, 1942 -44, p 244.

657.065

ATTY. GEN. OPINIONS: Unemployment compensation for

employes of a public housing authority, 1950 -52, p 35; Fed- eral Government as " employer," 1954 -56, p 170; applicabilityto employes of the Military Department not performingmilitary duties, 1958 -60, p 227; Oregon Industries for theBlind as " employing unit," 1958 -60, p 388; legislative employment of retired members of Public Employes' Retire-

ment System, 1966 -68, p 220.

657.080


657.085


657.087

NOTES OF DECISIONS

Including," as used in this section, is a word of enlargement, or of illustrative application, not a word of limitation.

Premier Prod. Co. v. Cameron, ( 1965) 240 Or 123, 400 P2d227.

FURTHER CITATIONS: Baker v. Cameron, ( 1965) 240 Or354, 401 P2d 691.


657.095

CASE CITATIONS: Journal Publishing Co. v. State Unemp. Comp. Comm., ( 1945) 175 Or 627, 155 P2d 570.

ATTY. GEN. OPINIONS: Taxability of wages paid duringdisability, 1950 -52, p 32; construing " payroll," 1956 -58, p 16.

657. 100

NOTES OF DECISIONS


commencing December 21, remuneration received by themas holiday pay was to be considered as remuneration forservices performed in determining unemployment compensation benefits and as earned in weeks in which holidaysfell, even though employes had to return to work on the


342 P2d 114.

FURTHER CITATIONS: Zimbrick v. Morgan, ( 1970) 4 Or

App 138, 477 P2d 908.

ATTY, GEN. OPINIONS: Supplemental unemployment

benefits compared to wages, 1956 -58, p 105; prerequisitesto payment of benefits, 1958-60, p 361; regulations on self - employment, 1962 -64, p 293.

657. 105

NOTES OF DECISIONSWhere employes were laid off for a period of three weeks

commencing December 21, remuneration received by themas holiday pay was to be considered as remuneration forservices performed in determining unemployment compensation benefits and as earned in weeks in which holidaysfell, even though employes had to return to work on the


342 P2d 114.

FURTHER CITATIONS: Journal Publishing Co. v. StateUnemp. Comp. Comm., ( 1945) 175 Or 627, 155 P2d 570.

ATTY. GEN. OPINIONS: Taxability of wages paid duringdisability, 1950 -52, p 32; construing " wages," 1956 -58, p 16; supplemental unemployment benefits compared to wages,

1956 -58, p 105.

657.115

ATTY. GEN. OPINIONS: Validity of amendment to definition of " wages," 1950 -52, p 374.

657. 150

NOTES OF DECISIONS


commencing December 21, remuneration received by themas holiday pay was to be considered as remuneration forservices performed in determining unemployment compensation benefits and as earned in weeks in which holidaysfell, even though employes had to return to work on the


342 P2d 114.

674

FURTHER CITATIONS: Zimbrick v. Morgan, ( 1970) 4 Or

App 138, 477 P2d 908.

ATTY. GEN. OPINIONS: Commission entering into agreement with Federal Government to pay additional benefitsto persons who have exhausted their benefits under state

law, 1956 -58, p 314; eligibility of employes of union, 1958 -60, p 106; prerequisites to payment of benefits, 1958 -60, p 361;

SUPERSEDED

effect of this section upon employer's liability to pay taxes, 1958 -60, p 415; regulations on self - employment, 1962 -64, p293; benefits payable prior claimants after January 1, 1964, 1962 -64, p 377.

657. 155


ATTY. GEN. OPINIONS: Supplemental unemployment

benefits compared to wages, 1956 -58, p 105; construingvalid claim," 1958 -60, p 361; regulations on self- employ-

ment, 1962 -64, p 293.


657. 176

NOTES OF DECISIONS

An employe' s voluntary failure to maintain union membership which results in termination of employment pursuant to an agreement between employer and union consti-

tutes voluntary termination of employment. Amuchastegulv. Dept. of Employ., ( 1971) 4 Or App 456, 479 P2d 526, SupCt review denied.

ATTY. GEN. OPINIONS: Regulations on self- employment,

1962 -64, p 293.

657. 190


657. 195

CASE CITATIONS: Henzel v. Cameron, ( 1961) 228 Or 452,

365 P2d 498.

ATTY. GEN. OPINIONS: Referral of farm workers to a farm

involved in a labor dispute, 1960 -62, p 129.


657.200

NOTES OF DECISIONS

A lockout is a labor dispute. Henzel v. Cameron, ( 1961)

228 Or 452, 365 P2d 498; Cameron v. DeBoard, ( 1962) 230

Or 411, 370 P2d 709.

An individual is " directly interested" in a labor disputewhen his wages, hours or conditions of work will be affect-

ed favorably or adversely by the outcome. Henzel v. Ca- meron, ( 1961) 228 Or 452, 365 P2d 498.

The matter of claimant' s " direct interest" in a labor dis-

pute is a question of fact. Id. A claimant whose work is integrated with that of the

strikers is' prima facie disqualified as a member of a class.

Cameron v. DeBoard, ( 1962) 230 Or 411, 370 P2d 709.

Determining factors for requalification are integration ofthe work and community of interest between the claimantand the participants. Id.

Paragraph ( b) of subsection ( 3) contemplates classes

which may include nonorganized workers or members ofmore than one union. Id.

Refusal to work behind a picket line constitutes partici-

pation within the meaning of paragraph ( a) of subsection3). Id.

The work is integrated when the effective utilization of

the plant and labor force requires the continued services

of substantially all the workmen. Id. When a claim is challenged, the claimant has at least

657.282

the burden of going forward with the evidence until hemakes a prima facie case of requalifying. Id.

FURTHER CITATIONS: Latham v. State Unemp. Comp. Comm., ( 1941) 167 Or 371, 117 P2d 971; Baker v. Cameron,

1965) 240 Or 354, 401 P2d 691.

657.205

CASE CITATIONS: Zimbrick v. Morgan, ( 1970) 4 Or App138, 477 P2d 908.

ATTY. GEN. OPINIONS: Federal Government as " employer," 1954 -56, p 170; supplemental unemployment benefits, 1956 -58, p 105.

657.255

ATTY. GEN. OPINIONS: Requirement that regulations not

conflict with this section, 1958 -60, p 361.

657.260

ATTY. GEN. OPINIONS: Construing " valid claim," 1958 -60, p 361.

NOTES OF DECISIONS

Although employer made no personal appearance, it was

a party to the proceedings and was, as a contributor tothe fund, bound thereby. Weyerhaeuser Tbr. Co. v. StateUnemp. Comp. Comm., ( 1959) 217 Or 378, 342 P2d 114.

657.270

NOTES OF DECISIONS


a party to the proceedings and was, as a contributor tothe fund, bound thereby. Weyerhauser Tbr. Co. v. StateUnemp. Comp. Comm., ( 1959) 217 Or 378, 342 P2d 114.

ATTY. GEN. OPINIONS: Exclusion of member of public

from hearings, 1954 -56, p 160.

657.275

NOTES OF DECISIONS


a party to the proceedings and was, as a contributor tothe fund, bound thereby. Weyerhaeuser Tbr. Co. v. StateUnemp. Comp. Comm., ( 1959) 217 Or 378, 342 P2d 114.

FURTHER CITATIONS: Cameron v. DeBoard, ( 1962) 230

Or 411, 370 P2d 709.

657.280

CASE CITATIONS: Cameron v. DeBoard, ( 1962) 230 Or 411, 370 P2d 709.

ATTY. GEN. OPINIONS: Applicability of rules of evidence, 1954 -56, p 160.

657.282


A party could seek judicial review after the hearing beforethe commission since application for reconsideration beforethe commission was an optional right. Weyerhaeuser Tbr.

675

SUPERSEDED

657. 290

Co. v. State Unemp. Comp. Comm., ( 1959) 217 Or 378, 342

P2d 114.

Any reasonable evidence would be regarded as substantial evidence to support the findings. Henzel v. Cameron,

1961) 228 Or 452, 365 P2d 498. Subsection ( 5) codifies a rule basic and fundamental to

administrative law. Id.

Substantial evidence was such proof as a reasonable mind

would employ to support a conclusion. Id. There was substantial evidence to support the findings

of the commission. Amuchastegul v. Dept. of Employment,


FURTHER CITATIONS: Latham v. State Unemp. Comp. Comm., ( 1941) 167 Or 371, 117 P2d 971; Rahoutis v. State

Unemp. Comp. Comm., ( 1943) 171 Or 93, 136 P2d 426;

Booth -Kelly Lbr. Co. v. State Unemp. Comp. Comm., ( 1959)

217 Or 336, 330 P2d 351, 342 P2d 121; Cameron v. DeBoard, 1962) 230 Or 411, 370 P2d 709; Zimbrick v. Morgan, ( 1970)

4 Or App 138, 477 P2d 908.

657.290

NOTES OF DECISIONS

Application to the commission for reconsideration is not

a prerequisite to judicial review. Weyerhaeuser Tbr. Co. v.

State Unemp. Comp. Comm., ( 1959) 217 Or 378, 342 P2d

114.

FURTHER CITATIONS: Cameron v. DeBoard, ( 1962) 230Or 411, 435, 370 P2d 709.

657.405

ATTY. GEN. OPINIONS: Construing " payroll," 1956 -58, p16; applicable contribution rate, 1958 -60, p 106.

657.430 to 657.457

ATTY. GEN. OPINIONS: Applicable contribution rate,

1958 -60, p 106.

657.435


ATTY. GEN. OPINIONS: Applicable contribution rate,

1958 -60, p 106.

657.471

ATTY. GEN. OPINIONS: Construing " immediate," 1962 -64, p 191.

657.480

NOTES OF DECISIONS

Transfer of experience rating was not authorized. WestBearing & Parts, Inc. v. Peet, ( 1969) 253 Or 639, 456 P2d

993.

657.485

ATTY. GEN. OPINIONS: Exclusion of member of public

from hearings, 1954 -56, p 160.

657.505

657.506


657.515

CASE CITATIONS: Rahoutis v. State Unemp. Comp. Comm., ( 1943) 171 Or 93, 136 P2d 426.

657.525


657.530


657.535


657.540


657.552

NOTES OF DECISIONS

The assessment, a condition precedent to notice, was not

made until over nine years after accrual of liability. Morganv. Harris, ( 1970) 3 Or App 402, 474 P2d 366.

657.608

ATTY. GEN. OPINIONS: Advances from the Federal Gov-

ernment to Oregon account in Federal Unemployment Trust

Fund, 1956 -58, p 290.

657.610

CASE CITATIONS: Zimbrick v. Morgan, ( 1970) 4 Or App138, 477 P2d 908.

ATTY. GEN. OPINIONS: Advances from the Federal Gov -

emment to Oregon account in Federal Unemployment TrustFund, 1956 -58, p 290; referral of farm workers to a farminvolved in a labor dispute, 1960 -62, p 129; layoff of employes due to lack of funds, 1962 -64, p 283; regulations onself - employment, 1962 -64, p 293.

657.620

ATTY. GEN. OPINIONS: Advances from the Federal Gov- ernment to Oregon account in Federal Unemployment Trust

Fund, 1956 -58, p 290.

657.625

ATTY. GEN. OPINIONS: Governor's power to apply foradvance on loan of federal funds for Unemployment Com-

pensation Trust Fund, 1956 -58, p 290.

657.630

CASE CITATIONS: State ex rel. Cameron v. Van Drimme-

len, ( 1965) 240 Or 347, 401 P2d 298.

ATTY. GEN. OPINIONS: Advances from the Federal Gov- ernment to Oregon account in Federal Unemployment' rust CASE CITATIONS: State ex rel. Cameron v. Van Drimme-

Fund, 1956 -58, p 290.• len, ( 1965) 240 Or 347, 401 P2d 298.

676

C

l1

u

SUPERSEDED

657.657

ATTY. GEN. OPINIONS: Governor's power to apply foradvance on loan of federal funds for Unemployment Com-

pensation Trust Fund, 1956 -58, p 290; necessity for competitive bids, 1958 -60, p 384; legislative control of capital construction, 1960 -62, p 436.

657.660


ATTY. GEN. OPINIONS: When unemployment compensa-

tion commission authorized to supply photostatic copies ofrecords to applidants, 1936 -38, p 532; exclusion of memberof public from hearings, 1954 -56, p 160.

657.679

CASE CITATIONS: Willamette View Manor, Inc. v. Ca-

meron, ( 1964) 239 Or 371, 397 P2d 543; Golden Shear Barber

Shop v. Morgan, ( 1971) 258 Or 105, 481 P2d 624.

657.681

NOTES OF DECISIONS

The burden of establishing that employes are free fromthe employer's direction and control both in contract and

in fact is on the employer. Dick v. Morgan, ( 1970) 2 Or

App 437, 468 P2d 544.

FURTHER CITATIONS: Morgan v. Hams, ( 1970) 3 Or App402, 474 P2d 366.

657.685

NOTES OF DECISIONS

If the facts are not disputed, the question of whether

one is an employe.or a contractor of another is a questionof law. Baker v. Cameron, ( 1965) 240 Or 354, 401 P2d 691;

Golden Shear Barber Shop v. Morgan, ( 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App 247, 471 P2d 858.

The extent of judicial review is dependent upon legislativedirection in the Unemployment Compensation Act. Baker

v. Cameron, ( 1965) 240 Or 354, 401 P2d 691.

Under subsection ( 2), unless petitioner can show either

a change in the law or a change in the material facts, the

first administrative decision, if not overturned by a timelyjudicial review, is final. Willamette View Manor, Inc. v.

Peet, ( 1968) 252 Or 142, 448 P2d 546.

On judicial review of the order of the referee, the findings

of fact are conclusive if supported by substantial evidence, and the jurisdiction of the court is limited to questions of

law. Dick v. Morgan, ( 1970) 2 Or App 437, 468 P2d 544. The facts did not support a finding of an employment

relationship. Golden Shear Barber Shop v. Morgan, ( 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App 247, 471 P2d 858.

FURTHER CITATIONS: Willamette View Manor, Inc. v. Cameron, ( 1964) 239 Or 371, 397 P2d 543.

ATTY. GEN. OPINIONS: Appearance at hearing by non - lawyer representative, ( 1968) Vol 34, p 91.

657.830


657.705

ATTY. GEN. OPINIONS: Governors power to apply foradvance on loan of federal funds for Unemployment Com- pensation Trust Fund, 1956 -58, p 290; referral of farmworkers to a farm involved in a labor dispute, 1960 -62, p129.

657.710

ATTY. GEN. OPINIONS: Referral of farm workers to a farminvolved in a labor dispute, 1960 -62, p 129.

657.715



657.720



657.755

ATTY. GEN. OPINIONS: Governors power to apply foradvance on loan of federal funds for Unemployment Com-

pensation Trust Fund, 1956 -58, p 290; commission enteringinto agreement with Federal Government to pay additionalbenefits to persons who have exhausted their benefits under

state law, 1956 -58, p 314.

657.760

Arm GEN. OPINIONS: Commission entering into agreement with Federal Government to pay additional benefitsto persons who have exhausted their benefits under state

law, 1956 -58, p 314.

657.805

ATTY. GEN. OPINIONS: Disposition of funds obtainedwithout authority, 1956 -58, p 290.

657.815

ATTY. GEN. OPINIONS: Disposition of funds obtained

without authority, 1956 -58, p 290.

657.825

ATTY. GEN. OPINIONS: Governors power to apply foradvance on loan of federal funds for Unemployment Com-

pensation Trust Fund, 1956 -68, p 290.

657.850

ATTY. GEN. OPINIONS: Deposit by State Treasurer ofUnemployment Compensation Trust Fund with Secretaryof the Treasury of the United States, 193436, p 697; disposition of funds obtained without authority, 1956 -58, p 290.

677

SUPERSEDED

Chapter 658

Employment, Agencies and Contractors; Occupational

Counseling and Training

658,005 former statute. Lyons v. Portland, ( 1925) 115 Or 533, 235P 691.

NOTES OF DECISIONS

An ordinance of Portland, in its essential features the 658.450

same as the former statute, but requiring the payment ofa larger license to the city, was not in conflict with the LAW REVIEW CITATIONS: 1 WLJ 239.

678

SUPERSEDED

is

Chapter 659

Enforcement of Civil. Rights; Fraudulent Employment Practices

Chapter 659

CASE CITATIONS: Williams v. Joyce, ( 1971) 4 Or App 482, 479 P2d 513, Sup Ct review denied.

AM. GEN. OPINIONS: Asking whether applicant " regularly attends a house of worship," 1956 -58, p 27; constitutionality and relation to federal housing law of 1957 amendment, 1956 -58, p 86; duties as to college organizations withexclusionary membership practices, 1960 -62, p 14; incorporation of confidential communications into conciliation

agreements, 1964 -66, p 218; authority of Philippine citizensor corporations to engage in business in Oregon, 1966 -68,

p 154; recording racial data on Department of Employmentrecords, 1966 -68, p 212; residency of Oregon student uponmarriage to a nonresident, ( 1970) Vol 35, p 266.


659.010 to 659. 115

NOTES OF DECISIONS

This law was not intended to establish a public policyas to relationships other than employer and employe. Unit- ed States Nat. Bank v. Snodgrass, ( 1954) 202 Or 530, 275P2d 860.

Commissioner has authority to award compensatorydamages under these sections. Williams v. Joyce, ( 1971) 4

Or App 482, 479 P2d 513, Sup Ct review denied.

AM. GEN. OPINIONS: Duties of Labor Commissioner

with regard to state college living organizations whichselect membership on basis excluding persons on accountof race, religion or national origin, 1960 -62, p 7; informationon race, religion, color or national origin for personnel

records, 196466, p 17; duty of Attorney General to preparecharges upon complaint • filed by Commissioner of theBureau of Labor, 196468, p 443.

659.010

ATTY. GEN. OPINIONS: School districts as " employers"

within the meaning of this section, 1948 -50, p 278; applicability to occupational training by vocational schools, 1948- 50, p 358; inquiries that can be made by employers, 1948 -50, p 436; duties and powers of advisory committee, 1952 -54; p 54; date of birth inquiry on employment application, 1964 -66, p 6.


659.020

NOTES OF DECISIONS

A provision in a will stating that a devisee would forfeither rights if she married a Catholic before she reached 32was valid. United States Nat. Bank v. Snodgrass, ( 1954) 202

Or 530, 275 P2d 860.

FURTHER CITATIONS: Wagner v. Columbia Hosp. Dist., 1971) 259 Or 15, 485 P2d 421.

AM. GEN. OPINIONS: Denial of admission for occupa-

tional training because of race, color, religion or nationality, 1948 -50, p 358; information on race, religion, color or national origin for personnel records, 1964 -66, p 17; constitutionality of authority to deny a license to a person whois not a citizen, 196466, p 106; duty of Attorney Generalto prepare charges upon complaint filed by Commissionerof the Bureau of Labor, 1964 -66, p 443; authority for Philip- pine citizens or corporations to engage in business in Ore-

gon, 1966 -68, p 154; recording racial data on Departmentof Employment records, 1966.68, p 212; residency of Oregonstudent upon marriage to a nonresident, ( 1970) Vol 35, p266.

659.022

NOTES OF DECISIONSThe selection of remedies is a matter of administrative

competence so long as the order is related to effectuationof the purposes of the Act and is not oppressive. Williams

v. Joyce, ( 1971) 4 Or App 482, 479 P2d 513, Sup Ct reviewdenied.

659.024

ATTY. GEN. OPINIONS: Date of birth inquiry on employment application, 1964 -66, p 6; recording racial data onDepartment of Employment records, 1966 -68, p 212.

659.050

CASE CITATIONS: Wagner v. Columbia Hosp. Dist., (1971)

259 Or 15, 485 P2d 421.

AM. GEN. OPINIONS: Inquiries that can be made byemployers, 1948 -50, p 436; Asking whether applicant " regularly attends a house of worship," 1956 -58, p 27; informationon race, religion, color or national origin for' personnel

records, 1964 -66, p 17; recording racial data on Departmentof Employment records, 1966 -68, p 212; residency of Oregonstudent upon marriage to a nonresident, ( 1970) Vol 35, p266.


659.031

NOTES OF DECISIONS

In subsection ( 1), " business enterprise" means the invest-

ment of capital,, labor and management for profit. Williamsv. Joyce, ( 1971) 4 Or App 482, 479 P2d 513, Sup Ct reviewdenied.

This section was not unconstitutionally vague under U.S. Const., Am. 14. Id.

679

SUPERSEDED

659.033

ATTY. GEN. OPINIONS: Discrimination in publicly -aidedhousing, 1956 -58, p 90.

659.033

NOTES OF DECISIONS

There was ample relevant evidence to support adminis-

trative findings of discrimination. Williams v. Joyce, ( 1971) 4 Or App 482, 479 P2d 513, Sup Ct review denied.

FURTHER CITATIONS: Bell v. Maryland, ( 1964) 378 US

226, 284, 84 S Ct 1814, 12 L Ed 2d 822.

ATTY. GEN. OPINIONS: Discrimination in publicly aidedhousing, 1956 -58, pp 86, 90; residency of Oregon studentupon marriage to a nonresident, ( 1970) Vol 35, p 266.


659.037

ATTY. GEN. OPINIONS: Duties of Labor Commissioner

with regard to state college living organizations whichselect membership on basis excluding persons on accountof race, religion or national origin, 1960 -62, p 7; residencyof Oregon student upon marriage to a nonresident, ( 1970)

Vol 35, p 266.

659.040


with regard to state college living organizations whichselect membership on basis excluding persons on accountof race, religion or national origin, 1960 -62, p 7; duty ofAttorney General to prepare charges upon complaint filedby Commissioner of the Bureau of Labor, 1964 -66, p 443.


659.045


with regard to state college living organizations whichselect membership on basis excluding persons on accountof race, religion or national origin, 1960 -62, p 7; duty ofAttorney General to prepare charges upon complaint filedby Commissioner of the Bureau of Labor, 1964 -66, p 443.


659.050

ATTY. GEN. OPINIONS: Conciliation agreements as public

records, 196466, p 218.


659.055

LAW REVIEW CITATIONS: 42 OLR 266 -271

659.060

CASE CITATIONS: Williams v. Joyce, ( 1971) 4 Or App 482, 479 P2d 513, Sup Ct review denied.

AM. GEN. OPINIONS: Duty of Attorney General to prepare charges upon complaint filed by Commissioner of theBureau of Labor, 1964 -66, p 443.

LAW REVIEW CITATIONS: 42 OLR 266 -271

659.070


records, 196466, p 218.


659.085


records, 1964 -66, p 218; duty of Attorney General to preparecharges upon complaint filed by Commissioner of theBureau of Labor, 196466, p 443.

659. 100

ATTY. GEN. OPINIONS: Applicability to occupationaltraining by vocational schools, 1948 -50, p 358; duties andpowers of advisory committee, 1952 -54, p 54.

659. 103

ATTY. GEN. OPINIONS: Date of birth inquiry on employment application, 1964 -66, p 6; information on race, religion, color or national origin for personnel records, 1964 -66, p17.

659. 110

ATTY. GEN. OPINIONS: Date of birth inquiry on employment application, 196466, p 6; conciliation agreements aspublic records, 1964 -66, p 218.

659.115

ATTY. GEN. OPINIONS: Duties and powers of advisorycommittee, 1952 -54, p 54; unpaid volunteer inspectors, ( 1970) Vol 35, p 125.

659.210

ATTY. GEN. OPINIONS: Authority of the Commissionerof Labor to require employment agents to state in their

advertisements, proposals for employment, etc., that a

strike situation exists, 1920 -22, p 608. '

659.230

NOTES OF DECISIONS

This blacklisting statute is not void for uncertainty norin violation of the due process and equal protection clauses

of the U.S. Const., Am. 14. Johnson v. Ore. Stevedoring Co., 1929) 128 Or 121, 270 P 772.

Intent to injure by preventing future employment is theessence of the offense of " blacklisting." Id.

The articles of an employers' association and its hand-

book stating grounds for discharge of employes, did notshow wrongful blacklisting. Id.

Exemplary damages could not be recovered from code- fendants of a company discharging plaintiff where evidencefailed to show they maliciously participated in the blacklisting. Id.

Evidence made an issue for jury whether a discharge ofan employe by a company, followed by refusal of othermembers of an association of like employers to hire him,

was the result of a prior agreement for blacklisting. Id.

659.240

NOTES OF DECISIONS

A boycott may be enjoined under proper showing ofconspiracy, but a clear case must be made showing that

680

r

SUPERSEDED

l u

damages would be irreparable. Longshore Printing Co. v. Howell, ( 1894) 26 Or 527, 38 P 547, 46 Am St Rep 640, 28LRA 464.

Where workers quit work because of an order of the

executive committee of a union, or in pursuance to a resolution of a union, there was no intimidation within the

meaning of this section. Id. Although an indictment should have set forth the acts

or words constituting the force, threats, and intimidations, the facts as stated, following the language of this section, did constitute a crime. State v. Smith, ( 1948) 182 Or 497, 188 P2d 998.

659.990

An indictment under this section failing to state that theemployment was lawful was cured by the presumption thatthe business and employment were lawful. Id.


659.990

ATTY. GEN. OPINIONS: Applicability to occupationaltraining by vocational schools, 1948 -50, p 358.

681


SUPERSEDED

Chapter 660

Apprentices and Trainees

Chapter 660

ATTY. GEN. OPINIONS: Council' s authority to approvebusiness for apprentice training of veterans, 1948 -50, p 90; the word " shall" as denoting a mandatory duty, 1948 -50, p 221; effect of statutory amendment upon previously approved agreements, 1948 -50, p 332; membership of localapprenticeship committee, 1950 -52, p 280; exceeding authority to set trade and craft standards, 1956 -58, p 11; apprenticeship programs in state agencies, 1958 -60, p 126; liability to apprentice injured while en route to or attendingclasses, 1962 -64, p 246; authority of comissioner over counciloffice and staff and over establishing policy of council, 1964 -66, p 378; conditioning license of journeyman on apprentice training or journeyman experience, ( 1968) Vol 34, p 148.

660.010

ATTY. GEN. OPINIONS: State employe whose employment

is based on an apprenticeship agreement as remaining outof the classified civil service of the state during the prescribed period of training, 1944 -46, p 459; state employeswho participate in on- the -job training programs as regularemployes as remaining in the classified civil service, 1944 -46, p 459; state officials' authority to make contracts for training apprentices, 1944 -46, p 459; council' s authority to approve business for apprentice training of veterans, 1948 -50, p 90; necessity of entering into a written apprentice contract, 1948 -50, p 221; ex- council member as representative, 1962 -64, p 186.

660.020

CASE CITATIONS: Golden Shear Barber Shop v. Morgan,

1970) 3 Or App 247, 471 P2d 858, rev' d, 258 Or 105, 481P2d 624.

ATTY. GEN. OPINIONS: Mandatory character of this section, 1948 -50, p 221; apprenticeship programs in state agencies, 1958 -60, p 126.

660.030

ATTY. GEN. OPINIONS: The word " shall" as denoting amandatory duty, 1948 -50, p 221.

i ice: i

ATTY. GEN. OPINIONS: The word " shall" as denoting amandatory duty, 1948 -50, p 221; exceeding authority to settrade and craft standards, 1956 -58, p 11.

660. 110

ATTY. GEN. OPINIONS: Council' s authority to approvebusiness for apprentice training of veterans, 1948 -50, p 90; authority of council to set director's salary, 1964 -66, p 121;

authority of commissioner over council office and staff, and

over establishing policy of council, 1964 -66, p 378.

660. 120

A'ITY. GEN. OPINIONS: State Apprenticeship Council' sauthority to fix minimum wages for apprentices, 1944 -46, p 397; power of State Apprenticeship Council to approvean establishment as an apprentice training institution within a Federal Act, 1948 -50, p 90; effect of statutory amendment upon previously approved agreements, 1948 -50, p 332; journeymen necessary to supervise apprentices prior to 1957amendment, 1956 -58, p 11; council as a " board" or " commission," 1962 -64, p 186; authority of commissioner overcouncil office and staff, 1964 -66, p 378.

660.125

CASE CITATIONS: Willamette Assn. of Elec. Contractorsv. Nilsen, ( 1967) 245 Or 588, 423 P2d 497.

ATTY. GEN. OPINIONS: Exceeding authority to set tradeand craft standards, 1956 -58, p 11.

660. 128

ATTY. GEN. OPINIONS: Apprenticeship programs in stateagencies, 1958 -60, p 126.

660. 135


1970) Vol 35, p 125.

660. 141


1970) Vol 35, p 125.

660.145


1970) Vol 35, p 125.

660. 155


1970) Vol 35, p 125.

660. 160

ATTY. GEN. OPINIONS: Effect of statutory amendmentupon previously approved agreements, 1948 -50, p 332; injurywhile attending apprenticeship classes, 1962 -64, p 246.

660. 170

ATTY. GEN. OPINIONS: Authority of council to set direc-

682

r

SUPERSEDED

tor' s salary. 1964 -66, p 121; authority of commissioner tomake work assignments for council staff, 1964 -66, p 378.

660. 180

ATTY. GEN. OPINIONS: Written apprenticeship agreementas mandatory, 1948 -50, p 221.

683

660.990

660.990

ATTY. GEN. OPINIONS: Written apprenticeship agreementas mandatory, 1948 -50, p 221; effect of statutory amendmentupon previously approved agreements, 1948 -50, p 332.

SUPERSEDED

Chapter 661

Organized Labor

661.010

NOTES OF DECISIONSThis section is but a declaration of the law as it existed

in Oregon prior to the enactment of the statute. Greenfield

v. Cent. Labor Council, ( 1922) 104 Or 236, 192 P 783, 207

P 168.

The Clayton Act was closely followed by OC 49 -901 to49-906 [ ORS 661. 010 to 661.030]. Starr v. Laundry & DryCleaning Workers' Local Union 101, ( 1937) 155 Or 634, 63P2d 1104; Geo. B. Wallace Co. v. Intl. Assn. of Mechanics, 1937) 155 Or 652, 63 P2d 1090.

FURTHER CITATIONS: Heitkemper v. Cent. Labor Coun-

cil, ( 1921) 99 Or 1, 192 P 765.

661.030

CASE CITATIONS: International Longshoremen' s and

Warehousemen' s Union v. Harvey Aluminum, ( 1961) 226 Or94, 359 P2d 112.

661.040

NOTES OF DECISIONS

Authority of a court of equity to award attorney feesis not derived solely from statute. Gilbert v. Hoisting & Portable Engrs., Local 701, ( 1964) 237 Or 130, 384 P2d 210,

390 P2d 320, cent denied, 376 US 963, 84 S Ct 1125, 11 LEd 2d 981.

Labor- Management Reporting and Disclosure Act of1959, Section 501 ( b), was not intended to be binding onunion members bringing actions in courts of a state whereprocedures existed by which a union member could enforcethe fiduciary duties of union officers. Id.

FURTHER CITATIONS: American Fedn. of Labor v. Bain,

1940) 165 Or 183, 106 P2d 544.

661.210

ATTY. GEN. OPINIONS: County authority to require unionlabel on supplies purchased by county, 1950 -52, p 398.

ATTY. GEN. OPINIONS: Cancellation of registration of

trade mark, 1938-40, p 637.

661.=

CASE CITATIONS: Brawner v. Sanders, ( 1966) 244 Or 302, 417 P2d 1009.

661. 990

ATTY. GEN. OPINIONS: County authority to require unionlabel on supplies purchased by county, 1950 -52, p 398.

694

SUPERSEDED

Chapter 662

Labor Disputes

Chapter 662

CASE CITATIONS: Gilbertson v. Culinary Alliance andBartenders' Union, ( 1955) 204 Or 326, 282 P2d 632; LoderBros. Co. v. Lodge 1506 Intl. Assn. of Machinists, ( 1957)

209 Or 305, 306 P2d 411; Gilbertson v. McLean, ( 1959) 216Or 629, 341 P2d 139; Fianza CIA Nay. S.A. v. Benz, ( 1958)

178 F Supp 243.

ATTY. GEN. OPINIONS: As patterned after federal legisla-

tion, 1952 -54, p 118; tape recording as sole record of hearings, 1960 -62, p 333; board' s power to direct mail ballotelection, 1960 -62, p 368; effect of legislative failure to provide funding, ( 1970) Vol 34, p 114.

662.010 to 662. 130

CASE CITATIONS: Coin Millwork Co. v. Lbr. & Sawmill

Workers Union, ( 1967) 248 Or 617, 435 P2d 1015.

662.010

NOTES OF DECISIONS

1. Constitutionality2. Construction

3. Purpose

4. Labor Dispute

5. Picketing

1. ConstitutionalityThis Act (ORS 662.010 to 662. 130) is not unconstitutional

as class legislation, denial of equal protection of the laws,

violation of due process, or deprivation of the inherentpower of the courts to grant equitable relief. Geo. B. Wal-

lace Co. v. Intl. Assn. of Mechanics, ( 1937) 155 Or 652, 63P2d 1090.

2. Construction

Since this Anti- Injunction Act was copied almost verba-

tim from the Federal Act, the Oregon Supreme Court, al-

though not bound, should be strongly persuaded by theconstruction given the Federal Act by the Supreme Courtof the United States. Peters v. Cent. Labor Council, ( 1946)

179 Or 1, 169 P2d 870.

S. Purpose

This Act is a plain mandate to the courts not to grantequitable relief in labor disputes, unless fraud, violence, orintimidation is involved. Geo. B. Wallace Co. v. Intl. Assn. of Mechanics, ( 1937) 155 Or 652, 63 P2d 1090.

The restraint on injunctive process was intended to per-

mit bargaining equality of employes and employers, not toleave unions free to inflict wanton injury upon fellowworkers and to accomplish the building of a monopoly oflabor. Schwab v. Motion Picture Mach. Operators Local,

1941) 165 Or 602, 109 P2d 600.

This Anti- Injunction Act was patterned after the Federal

Norris- LaGuardia Act and has for its primary purpose therestriction of the power of the courts to issue injunctions

in labor controversies. Peters v. Cent. Labor Council, ( 1946) 179 Or 1. 169 P2d 870.

4. Labor Dispute

The statutory definition of a " labor dispute" is broadenough to include any controversy relating to conditionsof employment or industrial relations, regardless of whether

or not the disputants stand in the proximate relation of

employer and employe. Geo. B. Wallace Co. v. Intl. Assn. of Mechanics, ( 1937) 155 Or 652, 63 P2d 1090.

The definition of a labor dispute extends the scope of

the Clayton Act as interpreted by the United States Su- preme Court by placing a greater restriction upon courtsin the matter of issuing injunctions. Id.

The immunity from injunctions clearly extends to disputes between persons engaged in the same industry orcraft who have a " direct or indirect" interest therein, and

is not limited to disputes between an employer and his

immediate employes. Id.

A labor dispute existed where an employer discharged

employes for joining a union and refused to recognize theunion in dealing with the employes, and some of the employes on strike claimed that their pay was inadequate andthe sanitary conditions bad. Starr v. Laundry & Dry Clean- ing Workers' Local Union No. 101, ( 1937) 155 Or 634, 63

P2d 1104.

There was no labor dispute where an employer substan-

tially conforming to union requirements refused to sign aunion contract because it required that he discharge hispresent employes. Schwab v. Motion Picture Mach. Opera-

tors Local, ( 1941) 165 Or 602, 109 P2d 600.

Where American union members voluntarily appeared atdock protesting wages and work conditions of foreignship's crew, and picketed without making demands orseeking collective bargaining, there was no " labor dispute." Fianza CIA Nay. S.A. v. Benz, ( 1958) 178 F Supp 243.

5. PicketingThe end to be accomplished by picketing may be consid-

ered in determining whether a labor dispute exists. Schwabv. Moving Picture Mach, Operators Local, ( 1941) 165 Or 602, 109 P2d 600.

Picketing, even though peaceful, must be for a lawfulpurpose; otherwise, it should be enjoined. Peters v. Cent. Labor Council, ( 1946) 179 Or 1, 169 P2d 870.

This Act was not designed to deprive the courts from

enjoining picketing which has for its sole purpose coercionof the primary employer to do that which the NationalLabor Relations Act forbids it to do, particularly when themanner of that picketing by the offending unions in andof itself constitutes an illegal labor practice under the Fed-

eral Act. State v. Dobson, ( 1952) 195 Or 533, 245 P2d 903.

FURTHER CITATIONS: Markham & Callow v. Intl. Wood-

workers Union, ( 1943) 170 Or 517, 135 P2d 727; Stone Log- ging Co. v. Intl. Woodworkers Union, ( 1943) 171 Or 13, 135P2d 759; Baker Hotel v. Employes Local 161, ( 1949) 187 Or

58, 207 P2d 1129; Sloan v. Journal Publishing Co., ( 1958)

685

SUPERSEDED

662.020

213 Or 324, 362, 324 P2d 449; Hyatt Chalet Motels, Inc. v. Carpenters Local 1065, ( 1970) 430 F2d 1119.

LAW REVIEW CITATIONS: 14 OLR 242, 501; 15 OLR 13, 229; 16 OLR 192; 19 OLR 81, 201; 26 OLR 132; 28 OLR 138,

391; 36 OLR 175.

662.020

CASE CITATIONS: Geo. B. Wallace Co. v. Intl. Assn. ofMechanics, ( 1937) 155 Or 652, 63 P2d 1090; Schwab v. Mo-

tion Picture Mach. Operators Local, ( 1941) 165 Or 602, 109P2d 600; Markham & Callow v. Intl. Woodworkers Union,

1943) 170 Or 517, 135 P2d 727.

662.040

NOTES OF DECISIONS

No court of this state can issue an injunction which will

have the effect of hindering proceedings pending before theNational Labor Relations Board. Oregon Shipbuilding Corp. v. Nat. Labor Relations Bd., ( 1943) 49 F Supp 386.

Court restraint of picketing designed to force plaintiff toenter a labor dispute to which it is not a party is not aninjunction involving or growing out of a labor dispute. Statev. Dobson, ( 1952) 195 Or 533, 245 P2d 903.

The Labor- Management Reporting and Disclosure Act of1959 was not intended to apply retroactively. Kempf v. Carpenters and Joiners Local Union, ( 1961) 229 Or 337, 367

P2d 436.

When jurisdiction of the dispute has been preempted byfederal law the state court may not assume jurisdiction. Id.

ATTY. GEN. OPINIONS: Authority to restrain picketing, 1952 -54, p 118.

662.050

NOTES OF DECISIONS

Action of pickets in taking auto license numbers of customers for purpose of writing letters to them explainingthe strike issues was not subject to injunction. Loder Bros.

Co. v. Intl. Assn. of Machinists, ( 1957) 209 Or 305, 306 P2d

411.

FURTHER CITATIONS: Schwab v. Motion Picture Mach.

Operators Local, ( 1941) 165 Or 602, 109 P2d 600; Peters v. Cent. Labor Council, ( 1946) 179 Or 1, 169 P2d 870.

662.070

CASE CITATIONS: Skinner v. Lynch, ( 1966) 244 Or 347, 418 P2d 498.

662.080

NOTES OF DECISIONS

Mere procedure to be followed is prescribed by Laws 1933c. 355 [ ORS 662.080 to 662. 110], which does not purport

to deny the right to injunctive relief. Starr v. Laundry & Dry Cleaning Workers' Local Union 101, ( 1937) 155 Or 634, 63 P2d 1104.

FURTHER CITATIONS: Markham & Callow v. Intl. Wood-

workers Union, ( 1943) 170 Or 517, 135 P2d 727; Baker Hotelv. Employes Local 161, ( 1949) 187 Or 58, 207 P2d 1129.

662.090

NOTES OF DECISIONS


Until a statutory notice has been given to the officernamed, no hearing upon the merits of the plaintiff's demandfor a permanent injunction should be held. Stan: v. Laundry

Dry Cleaning Workers' Local Union 101, ( 1937) 155 Or634, 63 P2d 1104.

662. 100

NOTES OF DECISIONS


662. 110

NOTES OF DECISIONS


662. 130


662.415

ATTY. GEN. OPINIONS: Authority to offer mediation services, ( 1969) Vol 34, p 765.

662.425

ATTY. GEN. OPINIONS: Providing conciliation services tolocal governmental units, ( 1969) Vol 34, p 765.

662.435

ATTY. GEN. OPINIONS: School district authority to entercollective bargaining contracts, 1962 -64, p 75; legality ofprocedure to determine board - teacher disputes, 1964 -66, p187.

ATTY. GEN. OPINIONS: Exclusive procedure, 1960 -62, p353.

662.705

ATTY. GEN. OPINIONS: Conflict with statute governinglabor relations in general, 1960 -62, p 353.

662.765

ATTY. GEN. OPINIONS: Conflict with statute governinglabor relations in general, 1960 -62, p 353.

662.805 to 662.825

ATTY. GEN. OPINIONS: Validity of prohibition againstpicketing during harvesting of perishable crops, ( 1970) Vol35, p 305.

662.815

ATTY. GEN. OPINIONS: Validity of this section, ( 1970) Vol35, p 305.

686

is

SUPERSEDED

Chapter 663

Labor Relations Generally

Chapter 683

ATTY. GEN. OPINIONS: Application to cases involvingprofessional nurses, 1960 -62, p 353; legality of procedure todetermine board- teacher disputes, 1964 -66, p 187; duty ofboard, lacking funds, to act, ( 1970) Vol 34, p 1114.

663.005

CASE CITATIONS: Gilbertson v. McLean, ( 1959) 216 Or 629,

341 P2d 139.

ATTY. GEN. OPINIONS: Preparation of proposed decision

by hearing agent, 1960 -62, p 328; tape recording as solerecord of hearings, 1960 -62, p 333; conflict with statutecovering labor relations involving nurses, 1960 -62, p 353; school district authority to enter collective bargaining con - tracts, 1962 -64, p 75.


663.010


663.025

CASE CITATIONS: Clackamas Broadcasters, Inc. v.

Scherer, ( 1959) 216 Or 471, 339 P2d 426.


by hearing agent, 1960 -62, p 328; tape recording hearings, authority to assign priority to cases, 1960 -62, p 333; conflictwith statute covering labor relations involving nurses, 1960 -62, p 353; availability of Attorney General findings asa public record, 1960 -62, p 355; conducting the election bymail, 1960 -62, p 368; effect of legislative failure to providefunding, ( 1970) Vol 34, p 1114.


663.030

CASE CITATIONS: Clackamas Broadcasters, Inc. v. Scherer, ( 1959) 216 Or 471, 339 P2d 426.

ATTY. GEN. OPINIONS: Effect of legislative failure to

provide funding, ( 1970) Vol 34, p 1114.

663.040

ATTY. GEN. OPINIONS: Tape recording as sole record ofhearings, 1960 -62, p 333.

663.045

ATTY. GEN. OPINIONS: Tape recording as sole record ofhearings, 1960 -62, p 333.

663.300



683.305



663.320


by hearing agent, 1960 -62, p 328; tape recording hearings, 1960 -62, p 333.


063.325



687

SUPERSEDED

688

SUPERSEDED

J

is

Chapter 670

Occupations and Professions Generally

Chapter 670

ATIY. GEN. OPINIONS: City license fee imposed on statelicensed occupations, ( 1970) Vol 34, p 1089.

670.210

NOTES OF DECISIONS

Under a former similar statute, exaction of a license fee

from one who solicited orders to be filled by shipping goodsfrom another state was void as a tax upon interstate com-

merce. Spaulding v. McNary, ( 1913) 64 Or 491, 130 P 391, 1128.

A former similar statute was not discriminatory as between persons affected by it. Ex parte Case, ( 1914) 70 Or291, 135 P 881, 141 P 746.

Under a former similar statute, the legislature had powerto enlarge upon the definition of the term " peddler" as given

by the lexicographers. Id. Under former similar provisions, injunction was granted

preventing application of statute to plaintiff who was engaged in interstate commerce. Grand Union Tea Co. v. Evans, ( 1914) 216 Fed 791.

FURTHER CITATIONS: State v. Wright, (1909) 53 Or 344,

100 P 296; State v. Miller, ( 1909) 54 Or 381, 103 P 519.

ATTY. GEN. OPINIONS: Farmer peddling meat as withinstatute, .1922 -24, p 272; local washing machine dealers soliciting orders for subsequent delivery as peddlers, 1928 -30, p 197; right of city or county to require peddlers of farmproducts to take out a license, 1930 -32, p 612; licensing ofpeddlers of farm products, 1930 -32, p 658; status of persondelivering goods previously ordered who sells additionalquantities upon request of customer, 1934 -36, p 752; necessity for licensee under statute governing manufacture anddistribution of bakery products to obtain peddler's license, 1934 -36, p 809; exclusive county garbage collection franchise, 1966 -68, p 600.

670.220

ATTY. GEN. OPINIONS: Exclusive county garbage collec-

tion franchise, application of dump regulations to pre- exist- ing dumps, 1966.68, p 600.

670.300

ATTY. GEN. OPINIONS: One not qualified to act as secre-

tary of State Board of Engineering Examiners appointedas acting secretary, 1942114, p 340; fixing compensation ofsecretary of board, 1948 -50, p 277; secretary of board asnot subject to civil service classification, 1964 -66, p 51; civilservice status of positions in Department of Commerce in

appointment of secretary to the State Board of EngineeringExaminers, 1964 -66, p 322; sufficiency of bond for secretaryof State Board of Engineering Examiners, use of blanketbond for State Board of Architect Examiners, 1966 -68, p 83.

670.310

ATTY. GEN. OPINIONS: Authority of State Board of Ar- chitect Examiners to expend funds in purchasing books fora reference library and to hold contests to obtain a designfor an architect' s certificate, 1930 -32, p 97; authority of StateBoard of Architect Examiners to require architect to fill out

information for each building planned and supervised, 1936 -38, p 223; application of State Board of Accountancyrules to conduct outside the state, 1962 -64, p 148; applicationof rules to additions extending structure to an area of over4,000 sq. ft., 1962 -64, p 282.

670.320

ATTY. GEN. OPINIONS: Inclusion in list of professional

engineers who have failed to pay their annual renewal fees, 192426, p 19; relation of State Board of Architect Examinersto Board of Landscape Architect Examiners, 1962 -64; p 28.

670.335

ATTY. GEN. OPINIONS: Authority of Secretary of Statein auditing claim against State Board of Architect Exam- iners to determine legality of claim, 1932 -34, p 272; relationof State Board of Architect Examiners to Board of Land-

scape Architect ,Examiners, 1962 -64, p 28.

689

SUPERSEDED

Chapter 671

Architects; Landscape Architects; Landscapers

Chapter 671

CASE CITATIONS: Scott v. Potomac Ins. Co., ( 1959) 217

Or 323, 341 P2d 1083.

ATTY. GEN. OPINIONS: Penalties for violation of archi-

tect' s and engineer's licensing laws as exclusive, 1952 -54, p 74; use of words " Architectural Planning and Develop- ment" on letterhead and requirement for licensing, 1958 -60, p 42; application to architectural corporations, ( 1969) Vol34, p 802.

671.010 to 671.220

ATTY. GEN. OPINIONS: Planning and construction ofbuilding as " practice of architecture," 1962 -64, p 282.

671. 010

ATTY. GEN. OPINIONS: Additions extending structure toan area of over 4,000 sq. ft., 1962 -64, p 282.

671. 020

ATTY. GEN. OPINIONS: Lawfulness of employment byschool directors of unlicensed architect, 1920 -22, p 128; useof the words " architectural offices" on the door of the office

of a person who is not a registered architect as a violation

of law, 1926 -28, p 13; use by unlicensed person of wordsArchitectural Service Bureau," as violation of statute,

1926 -28, pp 100, 497; use in Oregon, upon registration ofthe surviving partner, of the firm name of copartners licensed to practice architecture in another state, 1936 -38,

p 39; right of unlicensed architect to design and superviseconstruction of addition to school building having a groundarea of more than 4, 000 sq. ft., 1936 -38, p 462; applicationto persons constructing own buildings, 193840, p 561; re-. quirement, in firm name of a partnership practicing architecture to contain the names of all registered architects who

are partners, 1942 -44, p 207; authority to issue temporarylicense, 1952 -54, p 14; penalties for violation of architect'sand engineer's licensing laws as exclusive, 1952 -54, p 74; use of words " Architectural Planning and Development" on letterhead and requirement for licensing, 1958 -60, P 42; additions extending structure to an area of over 4,000 sq. ft., 1962 -64, p 282; stockholders of architectural corporation,

1969) Vol 34, p 802.

671. 030

ATTY. GEN. OPINIONS: Necessity of a license to designan addition extending a structure to an area of over 4,000sq. ft., 1962 -64, p 282.

671.041

ATTY. GEN. OPINIONS: Using names of all registeredarchitects or of a deceased partner, 1964 -66, p 54; law governing formation and activities of architectural corpora-

tions, ( 1969) Vol 34, p 802; qualifications of minority stockholders, ( 1970) Vol 35, p 213.

671.047

ATTY. GEN. OPINIONS: Law governing formation andactivities of architectural corporations, ( 1969) Vol 34, p 802.

671.050

ATTY. GEN. OPINIONS: Authority to issue temporary license, 1952 -54, p 14; relation of subboard to board, 1962 -64, p 29.

671. 070

ATTY. GEN. OPINIONS: Authority to issue temporary license, 1952 -54, p 14.

671. 080

ATTY. GEN. OPINIONS: Applicability to out -of -state architects, 1952 -54, p 14; relation of subboard to board, 1962- 64, p 29.

671. 130

ATTY. GEN. OPINIONS: What constitutes practicing theprofession of architecture, and what is satisfactory evidencethereof, 1920 -22, p 203; sale and delivery of plans and specifications in this state by nonresident architects, 1920 -22, p598.

671. 220

ATTY. GEN. OPINIONS: Board's power in handling violations of law, 1952 -54, p 74.

671.310

ATTY. GEN. OPINIONS: Relation of subboard to board,

1962- 64, p 28.

671. 330


1962 -64, p 29.

671.340

ATTY. GEN. OPINIONS: Acceptance of education com-

pleted at school as equivalent to work in landscape archi-

tecture, ( 1971) Vol 35, p 779.

671.370


1962 -64, p 29.

690

1 u

1

J1u

SUPERSEDED

671.455


1962 -64, p 29.

671.465

ATI'Y. GEN. OPINIONS: Relation of subboard to board,

1962 -64, p 29.

691

671. 990

671. 990

ATTY. GEN. OPINIONS: Penalties for violation of archi-

tect' s and engineer's licensing laws as exclusive, 1952 -54, p 74; application of regulations to additions extendingstructure to an area of over 4, 000 sq. ft., 1962 -64, p. 282.

SUPERSEDED

Chapter 672

Professional Engineers and Land Surveyors

Chapter 672

ATTY. GEN. OPINIONS: County surveyor' s expenses indefending his title to office, 1952 -54, p 159; exemption ofregistered engineers from local license fees, 1956 -58, p 221; construing professional engineering licensing law with realestate broker' s licensing law in ORS chapter 696 as appliedto corporation performing real property appraisals andother services, 1966- 68, p 37; authority of registered engineerto " appraise" real estate, 1966 -68, p 39; board authority torefund examination fees, 1966 -68, p 561.

672.005

ATTY. GEN. OPINIONS: Engineering instructor in educational institution as practitioner within meaning of statute, 1928 -30, p 606; use by unregistered person of titles " salesengineer," " safety engineer," " industrial engineer," " life

insurance engineer," " efficiency engineer," etc., 1934. 36, p261; necessity that mining operations be conducted undersupervision of a registered professional engineer, 1934 -36,

p 667; authority of an engineer registered in another stateto certify plans, maps and drawings, 1948 -50, p 338; electrician license needed by electrical engineer, 1948 -50, p 430; employes of the engineering department of the fish commission as subject to being licensed professional engineers, 1952 -54, p 45; penalties for violation of licensing laws, 1952 -54, p 74; necessity of " timber cruiser" complying withthe surveyors' registration law, 1952 -54, p 140; use of "Engi- neering" in name of foreign corporation not engaged inengineering, 1952 -54, p 168; employing private counsel toaid district attorney in prosecutions, 1956 -58, p 253; requirement that roadmaster be a licensed engineer, 1962 -64, p 85; responsibility of Director of Commerce in appointment ofsecretary to the board, 1964 -66, p 322; authority of registeredengineer to " appraise" real estate, 1966 -68, p 39.

672.020

ATTY. GEN. OPINIONS: Validity of contract for publicworks neither planned nor supervised by registered engineer, 1922 -24, p 747; necessity for individual owning interestin mining property and employing workmen to be a registered engineer, 1930 -32, p 98; requirement of seal, 1932 -34, p 642; necessity that mining operations involving engineering be conducted under supervision of registered engineer, 1934 -36, p 667; authority of an engineer registered in anotherstate to certify plans, maps and drawings, 1948 -50, p 338; requirement that roadmaster be a licensed engineer, 1962 -64,

p 85.

672.025

ATTY. GEN. OPINIONS: Legislative authority to requirecounty surveyor to be registered, as a land surveyor, 1950- 52, p 373.


672.030

ATTY. GEN. OPINIONS: Use of " Engineering" in name offoreign corporation not engaged in engineering, 1952 -54, p168; authority of registered engineer to " appraise" realestate, 1966 -68, p 39.

672.045

ATTY. GEN. OPINIONS: Right of person who registered

under false name to renewal in right name, 1934 -36, p 496; penalties for violation of licensing laws, 1952 -54, p 74; useof " Engineering" in name of foreign corporation not engaged in engineering, 1952 -54, p 168.

672.060

ATTY. GEN. OPINIONS: Timber cruiser as subject to registration as a land surveyor, 1952 -54, p 140.

672.090

ATTY. GEN. OPINIONS: Whether an examination for the

licensing of engineers may be held outside the state or byless than three members of the board, 1942 -44, p 273.

672.100

ATTY. GEN. OPINIONS: Authority of board to provide fordisposition of examination papers, 1922 -24, p 612; retentionby board of examination papers after grading, 1934 -36, p77.

672. 120

ATTY. GEN. OPINIONS: Exemption of registered engineers

from local license fees, 1956 -58, p 221.

672. 125

ATTY. GEN. OPINIONS: Authority of board to sever reciprocal relations with California board of registration, 1938 -40,

p 53; authority of an engineer registered in another stateto certify plans, maps and drawings, 1948 -50, p 338; exemption of registered engineers from local license fees, 1956 -58,

p 221; authority of registered engineer to " appraise" realestate, 1966.68, p 39.

672. 145

ATTY. GEN. OPINIONS: Authority to refund examinationfees, 1966 -68, p 561.

672. 155

ATTY. GEN. OPINIONS: Board authority to refund examination fees, 1966 -68, p 561.

692

SUPERSEDED

672. 160

ATTY. GEN. OPINIONS: Renewal of delinquent certificate,

1948 -50, p 341.

672. 170

ATTY. GEN. OPINIONS: Computation of fee for renewal

of certificate of registration when applicant is delinquent,

1948 -50, p 341; exemption of registered engineers from locallicense fees, 1956 -58, p 221.

672.210

ATTY. GEN. OPINIONS: What constitutes fraudulent

practice of engineering warranting revocation, 1920 -22, p286; revocation of certificate for failure to renew, 1934 -36,

p 66; strict adherence to statutory method of revocationof an engineer's certificate, 1946 -48, p 440.

672240

ATTY. GEN. OPINIONS:, Eligibility of person who had notrenewed his certificate at the time of appointment but had

done so at the time of his induction into office, 1934 -36,

p 253.

672.250

ATTY. GEN. OPINIONS: Duration of tenure of board

members, 1930 -32, p 313.

672.991

672.255

ATTY. GEN. OPINIONS: Exemption of registered engineers

from local license fees, 1956 -58, p 221; authority to refundexamination fees, 1966 -68, p 561.

672.300

A=. GEN. OPINIONS: Board' s power in handling violations of law, 1952 -54, p 74; employing private counsel toaid district attorney in prosecutions, 1956 -58, p 253; authority of director to determine location of board office, 1964 -66, p 247.

672.510

ATTY. GEN. OPINIONS: Power of board to investigate

charges against individuals practicing without a license, 1920 -22, p 150; punishment of unregistered county surveyor, 1952 -54, p 159.

672.991

ATTY. GEN. OPINIONS: Penalties for violation of licensinglaws, 1952 -54, p 74; timber cruiser as subject to registrationas a land surveyor, 1952 -54, p 140; use of " Engineering" in name of foreign corporation not engaged in engineering, 1952- 54, p 168.

693

SUPERSEDED

Chapter 673

Accountants

Chapter 673

ATTY. GEN. OPINIONS: Board' s authority to expandgrounds for revocation, 1950 -52, p 58; public inspection ofboard' s records, 1950 -52, p 343; licensing of attorney as apublic accountant,' 1950 -52, p 347; attempted resignation ofa certified public accountant, 1958 -60, p 11; revoking partnership registration when a nonresident partner is not ingood standing, 1962 -64, p 84; use of "& Co." in business

name of individual accountant, 1962 -64, p 371; right -to havepublic accountant's license issued, issuance without permit,

1962 -64, p 401; authority to practice as a corporation underORS chapter 58, ( 1970) Vol 34, p 1080.

673.020

ATI'Y. GEN. OPINIONS: Nonregistration of accountants

practicing as partnership, 1962 -64, p 314; use of "& Co."

in business name of individual accountant, 1962 -64, p 371.

673.030

ATTY. GEN. OPINIONS: Nonregistration of accountants

practicing as partnership, 1962 -64, p 314; issuance of licensewithout permit, 1962 -64, p 401.

673.040

ATTY. GEN. OPINIONS: Licensing of attorney as a publicaccountant, 1950 -52, p 347; attempted resignation of certified public accountant, 1958 -60, p 11; application to conductoutside the state, 1962 -64, p 143; issuance of license withoutpermit, 1962 -64, p 402.

673.060

ATTY. GEN. OPINIONS: Waiver of examination fee, 1948-

50, p 76; examination given by board in Oregon, 1950 -52, p 271; examination of candidates, 1958 -60, p 71; includingprofessional ethics in examination, ( 1969) Vol 34, p 561; authority to acquire materials and supplies for examinations, ( 1969) Vol 34, p 866.

673.070

ATTY. GEN. OPINIONS: Board's authority to expandgrounds for revocation, 1950 -52, p 58.

673.090

ATTY. GEN. OPINIONS: Revocation when a nonresident

partner is not in good standing, 1962 -64, p 85; residence ofbranch office manager, 1962 -64, p 249; nonregistration ofaccountants practicing as partnership, 1962 -64, p 314; useof "& Co." in business name of individual accountant,

1962 -64, p 371; authority to issue more than one partnershiplicense to partners practicing under two different namesor in two places, 1964 -66, p 268.

673. 100

ATTY. GEN. OPINIONS: Examination given by board inOregon, 1950 -52, p 271; nonregistration of accountantspracticing as partnership, 1962 -64, p 314; use of "& Co."

in business name of individual accountant, 1962 -64, p 371; right to have license issued, issuance of public accountant' s

to certified public accountant, 1962 -64, p 402; includingprofessional ethics in examination, ( 1969) Vol 34, p 561.

673. 110




673. 120




673. 130

ATPY. GEN. OPINIONS: Nonregistration of accountants


in business name of individual accountant, 1962 -64, p 371; authority to issue more -than one partnership license topartners practicing under two different names or in twoplaces, 1964 -66, p 268.

673. 140




673. 150

ATTY. GEN. OPINIONS: Attempted resignation of a certi-

fied public accountant, 1958 -60, p 11; exemption of accountants from city license fees, 1956 -58, p 215; nonregistrationof accountants practicing as partnership, 1962 -64, p 314; useof "& Co." in business name of individual accountant,

1962 -64, p 371; issuance of license without permit, 1962 -64, p 402; authority to issue more than one partnership licenseto partners practicing under two different names or in twoplaces, 1964 -66, p 268; auditing water control district accounts, ( 1969) Vol 34, p 486.

673. 160

ATTY. GEN. OPINIONS: Attorney at law as eligible forlicense as public accountant, 1950 -52, p 347; authority topractice as a corporation under ORS chapter 58, ( 1970) Vol

34, p 1080.

694

SUPERSEDED

673. 170

ATTY. GEN. OPINIONS: Including professional ethics inexamination, ( 1969) Vol 34, p 561.

673. 180

ATTY. GEN. OPINIONS: Revocation when a nonresident

partner is not in good standing, 1962 -64, p 85.

673. 185

ATTY. GEN. OPINIONS: Revoking partnership registrationwhen a nonresident partner is not in good standing, 1962 -64, p 84•

673.310

ATTY. GEN. OPINIONS: Use of "& Co." in business name

of individual accountant, 1962 -64, p 371.

673.320

ATTY. GEN. OPINIONS: Use of "& Co." in business name'

of individual accountant, 1962 -64, p 371.

673.330


673.480



673.340

ATTY. GEN. OPINIONS: Authority to practice as a corporation under ORS chapter 58, ( 1970) Vol 34, p 1080.

673.350

ATTY. GEN. OPINIONS: Residence of branch office mana-

ger, 1962 -64, p 249.

673.360


practicing as partnership, 1962 -64, p 314.

673.410

ATTY. GEN. OPINIONS: Legality of state board memberserving as treasurer of a political committee, 1964 -66, p 394.

673.480

ATTY. GEN. OPINIONS: Legality of state board memberserving as treasurer of a political committee, 1964 -66, p 394.

695

SUPERSEDED

Chapter 676

Health Professions Generally

Chapter 676

ATTY. GEN. OPINIONS: Use of "doctor" in advertisement

by practitioner of healing art, 1956 -58, p 171; restrictingadvertising by chiropractors to statutory limits, 1964 -66, p300.

676.010 to 676.090

ATTY. GEN. OPINIONS: Use of national board science

examination by state board, 1962 -64, p 30.

67 &010

A=. GEN. OPINIONS: Application by chiropractor fornaturopath' s license without first taking the standard examination, 1936 -38, p 372; effect of this section on applicantsfor license to practice chiropractic, 1938 -40, p 275; priorlicensing as chiropractor as excusing one from standardexamination in fundamental sciences, 1942 -44, p 368; chiropractors licensed in another state before fundamentalscience law became effective as required to obtain certifi-

cate of proficiency in fundamental sciences in this state, 1942 -44, p 404.

67 &030

ATTY. GEN. OPINIONS: Meaning of term " elementary," 1932 -34, p 406; requirement that chiropractor whose licensehas been forfeited for nonpayment of license fees take

examination, 1932 -34, p 713; requirement that applicantfailing examination in fundamental sciences take anotherexamination in not less than the five required subjects,

193436, p 695; reinstatement of lapsed license of practitioner of healing arts who has no certificate of proficiency, 1938 -40, p 305; excluding licensed osteopathic physician

from district hospital, 1950 -52, p 3; use of national boardscience examination by state board, 1962 -64, p 30.

67 &050

ATTY, GEN. OPINIONS: Use of national board science


676.060

ATTY. GEN. OPINIONS: Use of national board science


67 &110

A=. GEN. OPINIONS: Use of "doctor" by practioner ofhealing art generally, 1936 -38, p 397; only persons licensedto practice medicine as using letters " M.D., " 1940 -42, p411; nursing as a " healing art," 1948 -50, p 287; " physician" as restricted to medical physicians and surgeons, 1952 -54,

p 196; use of assumed names by chiropodists, 1952 -54, p249; use of title " doctor" by practitioner of healing art inadvertisement, 1956 -58, p 171; use of more than one titleafter name, 1956 -58, p 239; necessity of using " podiatrist" with " D.S.C.," 1964 -66, p 5; propriety of chiropractor usingcoined word to designate a specialty,- 1964 -66, p 300; definingheating arts," 196648, p 294.

67 &120

ATTY. GEN. OPINIONS: Use of assumed names by chiropodists, 1952 -54, p 249; use of deceased predecessor' s nameby licensee purchasing business, 1962 -64, p 477; proprietyof chiropractor using coined word to designate a specialty, 1964 -66, p 300.

696

is

SUPERSEDED

Ilu

Chapter 677

Physicians

Chapter 677

CASE CITATIONS: State v. Buck, ( 1953) 200 Or 87, 262 P2d

495; Board of Medical Examiners v. Mintz, ( 1963) 233 Or441, 378 P2d 945; State v. Elliott, (1963) 234 Or 522, 383 P2d382; State v. Hawkins, ( 1970) 255 Or 39, 463 P2d 858.

ATTY. GEN. OPINIONS: Employing unlicensed physiciansin state institutions, 1948 -50, p 334; licensed masseur advertising " physical therapy," 1956 -58, p 250; " drug" or " medicine" as determined by use, 1962 -64, p 206; applicability tooperation of medical laboratories, 1962 -64, p 324; use byoptometrist of electronic tonometer, 1962 -64, p 466; as separate and distinct from statute licensing osteopathic physicians, 1964 -66, p 387; application of proposed sales tax lawto sale of eyeglasses by optometrists and opticians, 1966 -68, p 438; city license fee imposed on state licensed occupations, 1970) Vol 34, p 1089.

LAW REVIEW CITATIONS: 36 OLR 154; 41 OLR 326; 6WLJ 602.

677.010

NOTES OF DECISIONS

A complaint sufficiently informed the defendant of thenature of the charge against him when it charged him with

performing an abortion. Board of Medical Examiners v. Buck, ( 1951) 192 Or 66, 200 Or 488, 232 P2d 791, 258 P2d

124, app. dis., 346 US 919, 98 L Ed 202, 74 S Ct 1029.

FURTHER CITATIONS: Board of Medical Examiners v. Mintz, (1963) 233 Or 441, 378 P2d 945.

ATTY. GEN: OPINIONS: Requirements for operation of

laboratory by licensed physician, 1956 -58, p 139; use offluorescein by optometrists, 1962 -64, p 206; medical laboratory procedures as practice of medicine, 1962 -64, p 324; useof diagnostic instruments in the practice of optometry,

1962 -64, p 466; distinguishing between diagnosis and technical performance of laboratory tests, 1964 -66, p 353; supervision of nurse immunizing or giving tuberculin tests, ( 1969) Vol 34, p 900.

677A60

NOTES OF DECISIONSThis section was not unconstitutional as an abridgement

of privileges and immunities under U.S. Const. Am. 14, § 1. State v. Smith ( 1929) 127 Or 680, 273 P 343.

The right accorded a patient to employ the practitioneror treatment of his choice does not exempt from prosecution one who practices without a license. State v. Burroughs, ( 1929) 130 Or 480, 280 P 653.

The exemption contained in subsection ( 9) [ now ( 7)] is

limited to those who believe in mental treatment. State v. Lee Chue, ( 1929) 130 Or 99, 279 P 285.

A corporation may carry on the business of using the

X -ray in connection with electrotherapy and roentgenology. Doumitt v. Diemer, ( 1933) 144 Or 36, 23 P2d 918.

This section makes it clear that this chapter does not

apply to persons practicing the other heating arts. Suttonv. Cook, ( 1969) 254 Or 116, 458 P2d 402.

FURTHER CITATIONS: Wood v. Miller, (1938) 158 Or 444,

76 P2d 963; Board of Medical Examiners v. Buck, ( 1954) 200 Or 488, 258 P2d 124.

ATTY. GEN. OPINIONS: Application of subsection (9) [ now

7)], 1926 -28, p 257; giving of divine or magnetic healingtreatment by unlicensed person, 1928 -30, p 98; right of doctor of medicine to give chiropractic adjustments, 1930 -32,

p 10; person recommending diets as within exceptions, 1934 -36, p 535; kind of physicians authorized to excusepupils from physical training and issue teachers' healthcertificates, 1936 -38, p 678; use of letters, " M.D.," 1940 -1942,

p 411; practice of electrolysis without license as cosmetictherapist, 1942 -44; p 87; use of electrotherapy and hydrotherapy by a naturopath, 1948 -50, p 42; employment ofunlicensed physician in state institutions, 1948 -50, p 334; use or prescription of drugs by chiropractor or naturopath, 1950 -52, p 384; licensing of physical therapy technicians, 1952 -54, p 30; use of term " physical therapy" by masseurs, 1956 -58, p 250; medication by practical nurse or aide, 1962- 64, p 433; use of diagnostic instruments in the practice ofoptometry, 1962 -64, p 466; certification of pupil' s health bychiropractic physician, ( 1970) Vol 35, p 141.


WLJ 602.

677.070

NOTES OF DECISIONSThis section makes it clear that this chapter does not

apply to persons practicing the other heating arts. Suttonv. Cook, ( 1969) 254 Or 116, 458 P2d 402.


677.080

NOTES OF DECISIONS

The indictment charging the accused of practicing without a license was not required to negative the exemptions

specified by 1927 c. 452 § 14 [ ORS 677.0601 State v. Burroughs, ( 1929) 130 Or 480, 280 P 653.

The fact that the principal witness against defendant wasa detective who did not intend to take the medicine prescribed was immaterial. State v. Lee Chue, ( 1929) 130 Or

99, 279 P 285.

Costs were not recoverable by a defendant acquitted ofpracticing without a license. State v. Amsden, ( 1917) 86 Or55, 166 P 942, 167 P 1014.

That the treatment was harmless was not a defense to

prosecution for practicing without a license. State v. Burroughs, ( 1929) 130 Or 480, 280 P 653.

Yl

SUPERSEDED

677.085

The state was not required to elect between a charge

that the accused administered drugs for compensation andthe charge that he undertook to cure a disease. Id.

AM. GEN. OPINIONS: License to practice naturopathyas including right to practice surgery, 1926 -28, p 455; dentistas a " legally qualified physician or surgeon," 1928 -30, p 326; right of chiropractor or naturopath to use words " Dr.,"

Doctor" or " Physician," 1930 -32, p 594; charging of fee byunlicensed person doing business as a " tea company," 1934 -36, p 535; the administration of anesthetics by eithera registered or practical nurse under supervision of licensed

physicians and surgeons as practicing medicine, 1942 -44, p188; employment of unlicensed physician in state institu-

tions, 1948 -50, p 334; certification of pupil' s health by chiropractic physician, ( 1970) Vol 35, p 141.

677.085

NOTES OF DECISIONS

The fact that diagnosis or treatment of a fracture constitutes the practice of medicine under this section does not

make unlawful the diagnosis or treatment of a fracture bya chiropractor. Sutton v. Cook, ( 1969) 254 Or 116, 458 P2d

402.

FURTHER CITATIONS: State v. Kuzirian, ( 1961) 228 Or619, 365 P2d 1046, 88 ALR2d 1284.

ATTY. GEN. OPINIONS: Hypnotism as practice of medi-

cine, 1956 -58, p 217; licensed masseur advertising " physicaltherapy ", 1956 -58, p 250; medical laboratory procedures aspractice of medicine, 1962 -64, p 324; use of diagnostic instruments in the practice of optometry, 1962 -64, p 466; supervision of nurse immunizing or giving tuberculin tests, 1969) Vol 34, p 900; certification of pupil' s health by chiro-

practic physician, ( 1970) Vol 35, p 141.


677.100

NOTES OF DECISIONSQualifications imposed upon applicants can be open to

objection only when they are unattainable or bear no reasonable relationship to practice of the profession. State v. Randolph, ( 1892) 23 Or 74, 31 P 201.

The Act of 1889 was not unconstitutional because it

permitted the licensing of persons theretofore engaged inpractice without examination. Id.

Under a former similar statute, a practitioner was not

entitled to a license when he failed to request one withinthe time limited. Miller v. Medical Bd., ( 1898) 33 Or 5, 52P 763.

Under the Act of 1889, any practitioner who compliedwith its requirements was licensed irrespective of his learn-

ing. State v. Simonis, ( 1901) 39 OR 111, 65 P 595.

FURTHER CITATIONS: Barmore v. Bd. of Medical Ex- aminers, ( 1891) 21 Or 301, 28 P 8; State v. Smith, ( 1929) 127 Or 680, 273 P 343.

ATTY. GEN. OPINIONS: Right of unlicensed physician to

practice as assistant to a licensed physician, 1922 -24, p 738; grounds for refusing leave to take examinations, 1922 -24p 738; revocation of reciprocity license granted physicianwho became connected with an advertising specialist, 1924 -26, p 175; citizenship as a qualification, 1924 -26, p 326; training required of applicant seeking license by reciprocity, 192426, p 347; effect of this section on the Basic ScienceAct, 1938 -40, p 275; similarity to statute licensing osteo-

pathic physicians, 195456, p 65; complying with equivalencyprovision, 196466, p 387.


677. 110

CASE CITATIONS: Zeh v. Nat. Hosp. Assn., ( 1963) 233 Or

221, 377 P2d 852.

677. 120

AM GEN. OPINIONS: Reciprocity license, 1930 -32, p 300; acceptability of certificate issued by national board of examiners, 1952 -54, p 131.

677. 180

ATTY. GEN. OPINIONS: Authority of board to includeadditional information in published list of licensees, 1940 -42,

p 251.

677. 188

LAW REVIEW CITATIONS: 49 OLR 302 -321; 2 EL 235.

677.190

NOTES OF DECISIONS

There is no repugnancy between the 1951 amendatoryAct and the Act as it was before amended in so far as thissection is concerned; no savings clause was required in the

1951 amendatory Act as to proceedings instituted priorthereto. Board of Medical Examiners v. Buck, ( 1951) 192

Or 66, 200 Or 488, 232 P2d 791, 258 P2d 124, app. dis., 346US 919, 74 S Ct 1029, 98 L Ed 202.

Unprofessional conduct" is an adequate standard. Boardof Medical Examiners v. Mintz, ( 1963) 233 Or 441, 378 P2d945.

Promulgation of rules specifying acts which constituteunprofessional conduct is not a condition precedent to the

board' s right to revoke a license. Id. Unless person is charged as a physician in the indictment,

the fact that the abortion is performed under the MedicalPractice Act is a matter of defense. State v. Hawkins, ( 1970) 255 Or 39, 463 P2d 858.

FURTHER CITATIONS: State v. Buck, ( 1953) 200 Or 87,

262 P2d 495; State v. Dewey, ( 1956) 206 Or 496, 553, 292P2d 799; State v. Elliott, ( 1963) 234 Or 522, 383 P2d 382.

A=. GEN. OPINIONS: Revocation of reciprocity licensegranting physician who became connected with advertisingspecialist, 192426, p 175; reinstatement of physician whoselicense has been revoked, 1924 -26, p 208; propriety of advertisement wherein physician undertakes to effect a cure,

192426, p 605; revocation of license upon conviction ofviolating Harrison Narcotic Act, 1926 -28, p 167; revocationof license upon conviction of selling narcotics, 1928 -30, p159; revocation of license upon conviction of a crime in-

volving moral turpitude, 1928 -30, p 545; revocation for conviction of crime as effected by statutes of limitation andpardon, 1928 -30, p 564; advertising to obtain patients asgrounds for revocation, 1958 -60, p 125; liability of performing abortion without consent of husband, ( 1969) Vol 34, p574.

LAW REVIEW CITATIONS: 34 OLR 192; 49. OLR 302 -321; 2 EL 235.

698

I,

u

SUPERSEDED

677.200

NOTES OF DECISIONS

Under a former similar statute, the complaint chargingabortion was insufficient where it omitted mention of an

essential element of that offense. Board of Medical Ex-

aminers v. Eisen, *(1912) 61 Or 492, 123 P 52. Distinguished

In Board of Medical Examiners v. Buck, ( 1951) 192 OR 66,

200 Or 488, 232 P2d 791, 258 P2d 124, app. dis., 346 US 919, 74 S Ct 1029, 98 L Ed 202.

The right of a licensee to practice medicine is a propertyright which may be divested only by procedure satisfyingthe due process clause of the Federal Constitution. Board

of Medical Examiners v. Buck, ( 1951) 192 Or 66, 200 Or 488,

232 P2d 791, 258 P2d 124, app dis., 346 US 919, 74 S Ct 1029, 98 L Ed 202.

For the purposes of the statute of limitations an amended

complaint relates back to the filing of the original. Id. An applicant for reinstatement of an osteopathic license

is entitled to receive written charges, notice and a hearingif board proposes to deny the application on the groundsof misconduct. Board of Medical Examiners v. Cusick, 1963) 234 Or 533, 383 P2d 69.

It was not error to make the state a party to a revocationproceeding in which it was alleged that the accused hadcommitted an abortion. State v. Estes, ( 1898) 34 Or 196,

51 P 77, 52 P 571, 55 P 25.

Evidence was insufficient to warrant revocation of alicense on the charge that the licensee brought about an

abortion. Board of Medical Examiners v. Eisen, ( 1912) 61

Or 492, 123 P 52.

A complaint sufficiently informed the defendant of thenature of the charge against him when it charged him with

performing an abortion. Board of Medical Examiners v. Buck, ( 1951) 192 Or 66; 200 Or 488, 232 P2d 791, 258 P2d

124, app. dis., 346 US 919, 74 S Ct 1029, 98 L Ed 202. The Board of Medical Examiners can permit the amend-

ing of a complaint in the proper case. Id. There was no evidence to support the action of the board.

Board of Medical Examiners v. Cusick, ( 1963) 234 Or 533, 383 P2d 69.

677.208

NOTES OF DECISIONS


An attorney who executed a notice of appeal on behalfof the board was presumed to have been duly authorizedto do so. State v. Estes, ( 1898) 34 Or 196, 51 P 77, 52 P571, 55 P 25.

Notice of appeal to the board was unnecessary if the statehad been made a party and service had upon it. Id.

The duty of filing the record in the circuit court rested

677. 290

upon the secretary, and the accused was not responsible

for his delinquency therein. Id. A court having jurisdiction of an appeal did not lose it

by submitting to a jury the propriety of the order. Statev. Dean, ( 1928) 123 Or 537, 262 P 936.

Legal evidence" as used in this section meant substan-

tial evidence. Board of Medical Examiners v. Mintz, ( 1963)

233 Or 441, 378 P2d 945.

An applicant for reinstatement of an osteopathic license

was entitled to receive written charges, notice and a hearingif board proposed to deny the application on the groundsof misconduct. Board of Medical Examiners v. Cusick,

1963) 234 Or 533, 383 P2d 69.

FURTHER CITATIONS: Barmore v. Bd. of Medical Ex-

aminers, ( 1891) 21 Or 301, 28 P 8; Miller v. Medical Bd.,

1898) 33 Or 5, 52 P 763; Board of Medical Examiners v. Buck, ( 1954) 200 Or 488, 258 P2d 124.

699

ATTY. GEN. OPINIONS: Appeal from order generally, 1936 -38, p 130.

677.235

CASE CITATIONS: State v. Lee Chue, ( 1929) 130 Or 99,

279 P 285.

ATTY. GEN. OPINIONS: Validity of restricting appointments to nominees of unofficial group, 1964 -66, p 178; boardas self - supporting regulatory agency outside Departmentof Commerce, ( 1971) Vol 35, p 504.

677.265

CASE CITATIONS: Miller v. Medical Bd., ( 1898) 33 Or 5,

52 P 763.

ATTY. GEN. OPINIONS: Authority of board to instituteproceedings for violation of statute, 1936 -38, p 397; authorityand duties of special counsel, 1938 -40, p 164; powers of aspecial agent appointed by the board as limited to thelanguage of this section, 1944 -46, p 166.

677.280

ATTY. GEN. OPINIONS: Allowance of additional salary tosecretary for conducting examinations, 1922 -24, p 154.

677.290

ATTY. GEN. OPINIONS: Authority of board to expendfunds for advertising, 1922 -24, p 738; board as self- support- ing regulatory agency outside Department of Commerce, 1971) Vol 35, p 504.

SUPERSEDED

Chapter 678

Nurses and Nursing Home Administrators

678.010 to 678.170

ATTY. GEN. OPINIONS: Refusal to renew license upon

timely application, 1958 -60, p 34; medication by practicalnurse or aide, 1962 -64, p 433.

678.015

ATTY. GEN. OPINIONS: Medication by practical nurse oraide, 1962 -64, p 433; extent to which student nurse mayperform nursing functions, 1964 -66, p 122; supervision .ofnurse immunizing or giving tuberculin tests, ( 1969) Vol 34, p 900.

678.021

ATTY. GEN. OPINIONS: Procedure for changing name oncertificate, 1950 -52, p 218; extent to which student nursemay perform nursing functions, 1964 -66, p 122.

678.031

ATTY. GEN. OPINIONS: Medication by practical nurse oraide, 1962 -64, p 433; extent to which student nurse mayperform nursing functions, 196466, p 122; supervision ofnurse immunizing or giving tuberculin tests, ( 1969) Vol 34, P 900.

678.040

ATTY. GEN. OPINIONS: Right of school of nursing to givestudent credit for work done elsewhere, 1922 -24, p 164; sufficiency of literary courses in place of required nurses' courses, 1936 -38, p 104; qualifications of applicants for examination and authority of board to require that applicantbe a United States citizen, 1936 -38, p 637; discretion of boardin insisting upon strict compliance with requirements of thissection, 194446, p 394. -

678.050

ATTY. GEN. OPINIONS: Delegating executive secretary toprepare examination questions and grade answers, 1936 -38, p 41; permitting applicants who have failed in any subjectto take examination under supervision of registered nurses

in Canada, 1938 -40, p 184; authority of board to set standards for licensing nurses licensed in other states, 1964 -66, p 348.

678.061

ATTY. GEN. OPINIONS: Authority of the board to refunda registration fee, 1940 -42, p 650; issuance of temporarylicenses to nurses registered in other states until they canqualify or until the next examination, 1944 -46, p 352; theboard as the sole judge of the credentials of any nurseadmitted to registration without examination, 1944 -46, p368; the board as the sole judge of the credentials of anynurse admitted upon reciprocity to registration without

examination, 194446, p 394; the words " another state" asused in this section as meaning another state of the UnitedStates, 1944 -46, p 489.

678.101

ATTY. GEN. OPINIONS: Authority of board to waive renewal registration fee and penalty for nonpayment, 1934 -36, p 630; authority of board to waive renewal of a certificateissued late in the fiscal year, 1936 -38, p 247; authority ofboard to renew license declared void for delinquency, 1958 -60, p 15.

678. 115

ATTY. GEN. OPINIONS: Revoked certificate as, null andvoid and effect of revocation when certificate cannot be

secured and canceled, 1944 -46, p 208.

678. 140

ATTY. GEN. OPINIONS: Authority of board to grant a sixmonths' leave of absence from the state to one of its

members in view of OCLA 91 -1001 [ ORS 182. 0101, 1942 -44, p 300; validity of restricting appointments to nominees ofunofficial group, 1964 -66, p 178.

678. 150

ATTY. GEN. OPINIONS: Power of board to expend funds

for educational purposes, 1930 -32, p 529; delegation of powerto prepare and grade examinations, 1936 -38, p 41; authorityof board to inspect schools of nursing and to determinetheir qualifications for registration, 194446, p 171; authorityof board to lease premises in which to conduct the affairs

of the board, 1944 -46, p 400.

678.160

ATTY. GEN. OPINIONS: Right of board members to compensation for attendance at conventions and educational

meetings, 1934 -36, p 146; per diem and expenses, 1938 -40, p 165.

678.210 to 678.360

ATTY. GEN. OPINIONS: Extent to which student nurse

may perform nursing functions, 1964 -66, p 122.

678.210



678.230



700

SUPERSEDED

678.330

ATTY. GEN. OPINIONS: Members of nurses' advisorycouncil as employes under Federal Social Security Act, 1960 -62, p 261.

678.355

ATTY. GEN. OPINIONS: Members of nurses' advisory

701

678.410

council as employes under Federal Social Security Act, 1960 -62, p 261.

678.410

ATTY. GEN. OPINIONS: Authority of board to charge anadditional fee for a second examination in case an applicant

fails to pass the first examination, 1944 -46, p 17; authorityof board to renew license declared void for delinquency, 1958 -60, p 15.

SUPERSEDED

Chapter 679

Dentists

Chapter 679

CASE CITATIONS: Oregon Newspaper Publishers Assn. v.

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

ATTY. GEN. OPINIONS: Corporation providing dental services through licensed dentists at reduced rates, 1956 -58,

p 301; corporation organized to practice dentistry, 1960 -62, p 141; investigation and prosecution of violations as between board and district attorney, 1960 -62, p 368; applicability to dental hygienists, 1960 -62, p 433; city license feeimposed on state licensed occupations, ( 1970) Vol 34, p 1089.

679.020

NOTES OF DECISIONS

There is no constitutional objection to this statute. State

v. State Bd. of Dental Examiners, ( 1920) 96 Or. 529, 188 P960, 190 P 338.

A license to conduct a dental parlor did not entitle the

licensee to engage in the practice of dentistry. Id. One licensed to operate a dental parlor could employ

dentists to attend his clients, but could not even advise asto the treatment of a tooth or assist in the manufacture

of a false tooth. Id.

ATTY. GEN. OPINIONS: Necessity for licensing of membersof corporation maintaining dental clinic, 1934 -36, p 491; prosecution of corporation which fails to comply withstatute, 1934 -36, p 570.

679.025

NOTES OF DECISIONS

There is a plain distinction between practicing dentistryand conducting a dental parlor. State v. State Bd. of DentalExaminers, ( 1920) 96 Or. 529, 188 P 960, 190 P 338.

ATTY. GEN. OPINIONS: Injections into tissue other than

the mouth_, 1948 -50, p 384; construing " diagnose," 1962 -64, p 324.

679.040


679.060

ATTY. GEN. OPINIONS: Determination of weight attachingto affidavit of character, 1926 -28, p 205; authority of boardto decide whether applicant has graduated from a reputable

dental school or college, 1936 -38, p 37.

679.070

ATTY. GEN. OPINIONS: Qualifying dental hygienist bycertificate of national board, 1960 -62, p 433.

679. 120

CASE CITATIONS: Cross of Malta Bldg. Corp. v. Straub, 1970) 257 Or 376, 476 P2d 921.

679. 140

NOTES OF DECISIONS

1. In general

Decisions dealing with the regulation of a business ora trade have but slight application to statutes regulatingthe conduct of a learned profession. Semler v. Ore. DentalExaminers, ( 1934) 148 Or 50, 34 P2d 311, afrd, 294 US 608, 55 S Ct 570, 79 L Ed 1086; Donohue v. Andrews, ( 1935) 150

Or 652, 47 P2d 940.

A license to conduct a dental parlor may be assumed tobe revocable in the same manner as a license to practice

dentistry. State v. State Bd. of Dental Examiners, ( 1920) 96 Or 529, 188 P 960, 190 P 338.

The public has an interest, not only in its own protectionagainst imposition, but also in the protection of the profes-

sion against demoralizing practices. Semler v. Ore. StateDental Examiners, ( 1935) 294 US 608, 55 S Ct 570, 79 L Ed

1086, affirming 148 Or 50, 34 P2d 311.

2. ConstitutionalityBanning the advertising of prices for professional services

is a proper exercise of the police power, and violates no

constitutional rights of practitioners. Semler v. Ore. State

Dental Examiners, ( 1935) 294 US 608, 55 S. Ct 570, 79 L Ed

1086, affirming 148 Or 50, 34 P2d 311; Donohue v. Andrews, 1935) 150 Or 652, 47 P2d 940.

There is no such vagueness and uncertainty about theamendment of 1933 as will invalidate it, and the subject

matter of the Act is sufficiently outlined in the title. Semlerv. Ore. Dental Examiners, ( 1934) 148 Or 50, 34 P2d 311, afrd

on other grounds, 294 US 608, 55 S Ct 570, 79 L Ed 1086.

3. Authority to regulateThe state may regulate the professional conduct of den-

tists whom it has licensed. Semler v. Ore. Dental Examiners,

1934) 148 Or 50, 34 P2d 311, affd, 294 US 608, 55 S Ct 570,

79 L Ed 1086.

The right of a dentist to practice his profession, while

valuable, is subordinate to the duty of the state to protectthe public health and safety. Id.

The contracts of a dentist are subject to any reasonableexercise of the protective power of the state. Semler v. Ore.

State Dental Examiners, ( 1935) 294 US 608, 55 S Ct 570,

79 L Ed 1086, affirming 148 Or 50, 34 P2d 311.

4. Improper advertisingThe purpose of this section is elevation of the dental

profession and prevention of advertising that may misleadthe public. Semler v. Ore. State Dental Examiners, ( 1935)

294 US 608, 55 S Ct 570, 79 L Ed 1086, affirming 148 Or50, 34 P2d 311; Donohue v. Andrews, ( 1935) 150 Or 652, 47P2d 940.

A statute barring advertising of claims of professional

702

SUPERSEDED

superiority is not invalidated by the possibility that in aparticular case the claim may be true. Semler v. Ore. StateDental Examiners, ( 1935) 294 US 608, 55 S Ct 570, 79 L Ed

1086, affirming 148 Or 50, 34 P2d 311. The legislative intent was to put a ban on all price adver-

tising that might have a tendency to lure the credulous. Donohue v. Andrews, ( 1935) 150 Or 652, 47 P2d 940.

Fraud or misrepresentation is never presumed, and bur-

den is on the person claiming it to establish its existenceby clear, satisfactory and convincing evidence. Bernard v. Board of Dental Examiners, ( 1970) 2 Or App 22, 465 P2d917.

To advertise " modern dentistry cheap" was to advertiseprices for professional services within the prohibition of thestatute. Donohue v. Andrews, ( 1935) 150 Or 652, 47 P2d 940.

The rule promulgated by the board was within the legislative grant of authority to the board. Angelos v. State Bd. of Dental Examiners, ( 1966) 244 Or 1, 414 P2d 335.

FURTHER CITATIONS: Campbell v. Henderson, ( 1965) 241

Or 75, 403 P2d 902; Oregon Newspaper Publishers Assn. v. Peterson, ( 1966) 244 Or 116, 415 P2d 21.

ATTY. GEN. OPINIONS: Authority of board relative todimensions of signs and kinds of advertising used, 1934 -36, p 14; use of certain phrases in advertising as constitutingunprofessional conduct, 1934 -36, p 117; proposed advertisingplan as violation of statute, 1934 -36, p 491; use of largeelectric display sign, glaring light signs, etc., contrary tostatutes, 1936 -38, p 326; use of term " credit dentistry" inadvertising, 1936 -38, p 326; nature of question whether thekind of advertising used affords a means of perpetratingfraud or deception, 1936 -38, p 408; obtaining businessthrough corporate capper or steerer, 1958 -60, p 65; fumish- ing dental service by a hospital association, 1960 -62, p 141.


679. 150

CASE CITATIONS: Angelos v. State Bd. of Dental Ex- aminer;, ( 1966) 244 Or 1, 414 P2d 335.

ATTY. GEN. OPINIONS: Fees and mileage of witnesses,

1934 -36, p 214.

679. 160

ATTY. GEN. OPINIONS: Appeal from order of temporarysuspension of license, 1932 -34, p 532; payment of expensesupon appeal from funds of board, 1934 -36, p 218.

679. 170

NOTES OF DECISIONS

An indictment for practicing dentistry without recording

679.991

the certificate need not allege practice for hire or reward.

State v. Brown, ( 1913) 64 Or 473, 130 P 985.

Acts of dentistry need not be set out in an indictmentcharging practicing of the profession without recordationof the certificate. Id.

ATIY. GEN. OPINIONS: Validity of licensed dentist drop- ping " Jr." from his name, 1952 -54, p 113; operating a dentaloffice under a corporate name, 1966 -68, p 42.

679.230

NOTES OF DECISIONS

The state may prescribe the qualifications of dentists, require that they be licensed, and set up a board to regulatetheir activities. Semler v. Ore. State Dental Examiners,

1935) 294 US 608, 55 S Ct 570, 79 L Ed 1086, affirming 148Or 50, 34 P2d 311.

679.250

NOTES OF DECISIONS

The rule promulgated by the board was within the legislative grant of authority to the board. Angelos v. State Bd. of Dental Examiners, ( 1966) 244 Or 1, 414 P2d 325.

FURTHER CITATIONS: Campbell v. Henderson, ( 1965) 241

Or 75, 403 P2d 902.

ATTY. GEN. OPINIONS: Employment of attorneys, 1960 -62,

p 368; qualifying dental hygienist by certificate of nationalboard, 1960 -62, p 433.

679.260

CASE CITATIONS: State Hwy. Comm. v. Burk, ( 1954) 200Or 211, 217, 265 P2d 783.

ATTY. GEN. OPINIONS: Authority of board to advancefunds for educational purposes, 1924 -26, p 579; use of fundsfor educational purposes, 1930 -32, p 649; use of educationalfund for defense of suits to restrain board from enforcingprovisions of this chapter, 1932 -34, p 309; authority of boardto pay fees and mileage of witnesses, 1934 -36, p 214; payment of expenses incurred upon appeal from order revokingdental license, 1934 -36, p 218; authority of board to returnpart of fees paid by applicants for examinations, 1936 -38p 99; authority of board in handling checks of applicantspaid for fees, 196466, p 454.

679.991

ATTY. GEN. OPINIONS: 40 OLR 34.

703

SUPERSEDED

Chapter 680

Dental Hygienists

and Auxiliaries

Chapter 680

CASE CITATIONS: Angelos v. State Bd. of Dental Ex- aminers, ( 1966) 244 Or 1, 414 P2d 335.

ATTY. GEN. OPINIONS: Board' s authority to accept certificates of qualifications from national board, 1960 -62, p 433.

r•Ti i T

ATTY. GEN. OPINIONS: Qualifying dental hygienist bycertificate of national board, 1960 -62, p 433.

680.060

ATTY. GEN. OPINIONS: Qualifying dental hygienist bycertificate of national board, 1960.62, p 433.

680.080

ATTY. GEN. OPINIONS: Qualifying dental hygienist bycertificate of national board, 1960.62, p 433.

704

SUPERSEDED

Chapter 682

Podiatrists

Chapter 682

ATTY. GEN. OPINIONS: Use of assumed names by chiropodists, 1952 -54, p 249; professional status of chiropody, 1958 -60, p 180; authority to treat under a general anestheticadministered by a licensed anesthesiologist, 1964 -66, p 250; validity of requiring continuing education for license renewal, ( 1969) Vol 34, p 407.

682.010

ATTY. GEN. OPINIONS: Practice of chiropody by chiropractor, 1936 -38, p 86; practice of chiropody by naturopath, 1940 -42, p 542; office assistants, as permitted to examine, diagnose, and treat hands and feet, 1942 -44, p 415; practiceof chiropody as embracing the use or prescription of drugsand narcotics, " minor surgery" as lacking definition, 1946- 48, p 274; authority of chiropodists to treat congenital de- formities and injuries involving the hands and feet, 1948 -50, p 339; authority to treat under a general anesthetic administered by a licensed anesthesiologist, 1964 -66, p 250; authority to use equipment to treat lower back strain, 1966 -68, p 215.

682.020

ATTY. GEN. OPINIONS: Use of " foot specialist," " foot

expert" or " foot correctionist" by person not licensed asa chiropodist, 1940 -42, p 264; use of " complete chiropodyservice" by person not licensed as chiropodist, 1958 -60, p180.

682.040

ATTY. GEN. OPINIONS: Professional status of chiropody, 1958-60, p 180.

682.070

ATTY. GEN. OPINIONS: Use of assumed names by chiropodists, 1952 -54, p 249; professional status of chiropody, 1958 -60, p 180; use of deceased predecessor' s name by licensee purchasing business, 1962 -64, p 477; necessity of usingPodiatrist" with "D. S. C.," 1964 -66, p 5.

682. 110

A=. GEN. OPINIONS: Construing " advertise," 1952 -54,

p 249; licensed chiropodist splitting fees with unlicensedperson, 1958 -60, p 180.

682.200

ATTY. GEN. OPINIONS: Use of assumed names by chiropodists, 1952-54, p 249.

705

SUPERSEDED

Chapter 683

Optometrists

Chapter 683


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

ATTY. GEN. OPINIONS: Hearing aids sold in form ofeyeglasses frames, 1954 -56, p 190; charges for violationpreferred by member of board, 1958 -60, p 366; construingdrug," 1962 -64, p 206.

683.010

NOTES OF DECISIONS

Fitting of lenses requires professional skill and judgmentrequiring a license. State ex rel. Reed v. Kuzirian, ( 1961) 228 Or 619, 365 P2d 1046, 88 ALR 2d 1284.

FURTHER CITATIONS: State ex rel. Sisemore v. StandardOptical Co., ( 1947) 182 Or 452, 188 P2d 309.

ATTY. GEN. OPINIONS: Hearing aids sold in form ofeyeglasses frames, 1954 -56, p 190; use of fluorescein, 1962 -64, p 206; use of diagnostic instruments in the practice of optometry, 1962 -64, p 466.

LAW REVIEW CITATIONS: 27 OLR' 349.

7:k i

NOTES OF DECISIONS

The practice of optometry by a corporation through licensed employes is unlawful. State ex rel. Sisemore v. Stan-

dard Optical Co., ( 1947) 182 Or 452, 188 P2d 309.

Defendant' s activity was part of the fitting process. Stateex rel. Sahlstrom v. Malos, ( 1967) 245 Or 598, 422 P2d 580.

ATTY. GEN. OPINIONS: Right of osteopath to practice

optometry, 1922 -24, p 486; legality of act of corporation inadvertising that it has an optical department, 1936 -38, p 101; authority of an optician to determine or advise the patientwhether or not contact lenses are necessary or advisableor to prepare the mold from the cornea of the eye or fit

the contact lenses without first obtaining a license to practice optometry, 1944 -46, p 471; authority to return fees, 1962- 64, p 194.

683.030

ATTY. GEN. OPINIONS: Right of osteopath to treat eyes

by fitting or adjusting glasses, 1932 -34, p 129; hearing aidssold in form of eyeglasses frames, 1954 -56, p 190.

683.040

NOTES OF DECISIONS

A corporation is not such a person as may take an examination in optometry and receive a license to practice. Thompson Optical Institute v. Thompson, (1926) 119 Or 252, 237 P 965.

FURTHER CITATIONS: State ex rel. Sisemore v. Standard

Optical Co., ( 1947) 182 Or 452, 188 P2d 309.

ATTY. GEN. OPINIONS: Alien as qualified to take exami-

nation or be admitted to practice, 1942 -44, p 329; constitutionality of citizenship requirement, ( 1970) Vol 35, p 367.

683.060

ATTY. GEN. OPINIONS: Authority of board to accept thegrading of the national board of examiners in optometryof applicants for license as optometrists, 1952 -54, p 151; constitutionality of citizenship requirement for certificates,

1970) Vol 35, p 367.

683. 120

ATTY. GEN. OPINIONS: Payment of renewal fees by licensed optometrists while in military service, 1940 -42, p 609; authority to return fees, 1962 -64, p 194.

683. 140

CASE CITATIONS: Head v. N. Mex. Bd. of Examiners in

Optometry, ( 1963) 374 US 424, 427, 83 S Ct 1759, 1761, 10L Ed 2d 983; Oregon Newspaper Publishers Assn. v. Peter- son, ( 1966)' 244 Or 116, 415 P2d 21.

ATTY. GEN. OPINIONS: Authority of the board to defineemployment of " cappers" and " steerers", 1940 -42, p 252; advertisements by optometrists conflicting with this section, 1940 -42, p 252; authority of the board to enlarge scopeof " unprofessional conduct," 1940 -42, p 412.

683. 155

ATTY. GEN. OPINIONS: Record of grades as essential in

appeal, 1952 -54, p 131; charges preferred by member ofboard, 1958 -60, p 366.

683. 180

CASE CITATIONS: State ex rel. Sisemore v. Standard Opti-

cal Co., ( 1947) 182 Or 452, 188 P2d 309.

ATTY. GEN. OPINIONS: Duplication of glasses, by personnot acting under or in conformity with prescription of licensed optometrist, 1926 -28, p 140; payment to corporationfor use of office space on basis of percentage of profits,

and practice under an assumed name, 1936 -38, p 101; advertising " one low price," 1966 -68, p 604.

683. 190

NOTES OF DECISIONS

This section does not authorize a dispensing optician tofit as well as grind and supply lenses. State ex rel. Reedv. Kuzirian, (1961) 228 Or 619, 365 P2d 1046, 88 ALR2d 1284.

706

J

is

SUPERSEDED

C 683.270

CASE CITATIONS: State ex rel. Sisemore v. Standard Opti- cal Co., ( 1947) 182 Or 452, 188 P2d 309; Oregon Newspaper

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

ATTY. GEN. OPINIONS: Authority to withdraw recognitionfrom college and deny its graduates the privilege of takingexamination, 1938 -40, p 11; authority of the board to expendstate funds contributing to the expense of defending anaction for damages brought by a college of optometryagainst the International Association of Boards of Ex-

aminers in Optometry for refusal of the board to recognizea college as a qualified college under Oregon standards,

707

683. 290

1942 -44, p 304; record of grades as essential in appeal, 1952- 54, p 131; charges for violation preferred by member ofboard, 1958 -60, p 366; authority to return fees, 1962 -64, p194; expenses arising from attorney fees and the investigation of illegal or unethical practices, 1956 -58, p 182; powerto make rules regarding the practice of optometry, 1962 -64, p 84; constitutionality of citizenship requirement for certificates, ( 1970) Vol 35, p 367.

683.290

ATTY. GEN. OPINIONS: Use of moneys for " educational

purposes" and " general welfare of the public," 1956 -58, p182.

SUPERSEDED

Chapter 684

Chiropractors

Chapter 684

NOTES OF DECISIONS

Nothing in this chapter prohibits the diagnosis and treatment of fractures by chiropractors. Sutton v. Cook, ( 1969) 254 Or 116, 458 P2d 402.

The only limitations in this chapter on the practice ofchiropractic are those relating to the methods of treatment. Id.

There is nothing in this chapter which purports to limitchiropractors to the diagnosis and treatment of certain

ailments or disorders. Id.

FURTHER CITATIONS: State v. Buck, ( 1953) 200 Or 87,

262 P2d 495; Zeh v. Nat. Hosp. Assn., ( 1963) 233 Or 221,

377 P2d 852.

AM. GEN. OPINIONS: Use of hospitals by chiropractors, 1950 -52, p 16; advertising superior techniques of diagnosis, 1956 -58, p 172; treatment of bone fractures, 1956 -58, p 196; regulation of persons who in practice of the profession

directly affect health and well -being of public, 1962 -64, p238; additional training of licensed chiropractor, 196466, p262; standard for diagnosis and treatment as that of the

chiropractic profession, ( 1970) Vol 35, p 141.


684.010

NOTES OF DECISIONS

Chiropractor is qualified to testify as an expert witness. Carnine v. Tibbetts, ( 1937) 158 Or 21, 74 P2d 974.

FURTHER CITATIONS: Sutton v. Cook, ( 1969) 254 Or 116,

458 P2d 402.

AM. GEN. OPINIONS: Practice of physiotherapy, electrotherapy and hydrotherapy by persons other than chiropractors, 1928 -30, p 367; authority of licensed chiropractorto practice chiropody, 1936 -38, p 86; power of the boardto regulate massage as incidental only to its regulation ofchiropractic, 194416, p 84; use of physiotherapy, electrotherapy and hydrotherapy by a chiropractor, 1948 -50, p42; treatment of bone fractures as " minor surgery," 1956 -58,

top 196; authority of chiropractor to treat by injections inthe foot, 196466, p 199; authority to take blood sample totest for phenylketonuria, 196466, p -290; authority of licensee to pierce skin for any purpose, 1966 -68, p 104; authorityof chiropractor to certify that a person is free from contagious and infectious diseases, 1966 -68, p 153; certificationof pupil's health by chiropractic physician, ( 1970) Vol 35, p 141; authority to perform a fistulotomy, ( 1971) Vol 35, p 715.


684.015

CASE CITATIONS: Ritter v. Sivils, ( 1956) 206 Or 410, 293

P2d 211; Zeh v. Nat. Hosp. Assn., ( 1963) 233 Or 221, 377

P2d 852; Sutton v. Cook, ( 1969) 254 Or 116, 458 P2d 402.

ATTY: GEN. OPINIONS: Treatment of bone fractures,

1956 -58, p 196; authority of chiropractor to treat by injections into the foot, 1964 -66, p 199; authority of licensee topierce skin for any purpose, 1966 -68, p 104; authority ofchiropractor to certify that a person is free from contagiousand infectious diseases, 1966 -68, p 153; certification ofpupil' s health by chiropractic physician, ( 1970) Vol 35, p141; authority to perform a fistulotomy, ( 1971) Vol 35, p715.

684.020

ATTY. GEN. OPINIONS: Designating unlicensed person todo chiropractic, 1948 -50, p 42.

684.025

AM. GEN. OPINIONS: Authority of chiropractor to treatby injections into the foot, 1964 -66, p 199.

684.030

ATTY. GEN. OPINIONS: Whether chiropractors may uselaboratories of the State Board of Health for examinations

for the diagnosis of veneral diseases, 1946 -48, p 73; authority of licensee to pierce skin for any purpose, 1966 -68, p 104; authority of chiropractor to certify that a person is freefrom contagious and infectious diseases, 1966 -68, p 153; certification of pupil' s health by chiropractic physician, 1970) Vol 35, p 141.


684.035

AM. GEN. OPINIONS: Authority of naturopath or chiropractor to administer the " Koch treatment," 1950 -52, p 383.

684.040

AM. GEN. OPINIONS: Right to return of fee of applicant

who failed in examination, 1922 -24, p 303; applicant withadequate credits from two schools, 1962 -64, p 238.

684050

AM. GEN. OPINIONS: Authority to raise the educationalrequirements, 193436, p 464; whether examination in allsubjects listed is mandatory, 1938 -40, p 120; whether examiners may include manipulative treatment of soft tissuesof body as well as of the bony structure, 1940 -42, p 204; treating bone fractures, 1956 -58, p 196; applicant with ade-

708

r

SUPERSEDED

quate credits from two schools, 1962 -64, p 238; authorityto take blood sample to test for phenylketonuria, 196466,

p 290; certification of pupil' s health by chiropractic physician, ( 1970) Vol 35, p 141.

884.060

AM. GEN. OPINIONS: Authority of board to enter intoreciprocal agreement in respect of registration, 1924- 26- p- 167; 167; admission of residents of foreign states to practice

chiropractic without the examination in fundamentalsciences when the applicant was admitted to practice in

the foreign state before the enactment of the fundamental

science law as dependent upon reciprocity between thisstate and the state of licensure, 1944 -46, p 216. -

684.070

ATTY. GEN. OPINIONS: Place of recordation of license of

chiropractor whose domicile is outside the state, 1932 -34,

p 328.

AM. GEN. OPINIONS: Effect of failure to renew license

by reason of nonreceipt of notice, 1924 -26, p 51; authority

684. 150

of board to condition renewals on continuing education, 196466, p 262.

684. 100

CASE CITATIONS: State v. Buck, ( 1953) 200 Or 87, 262 P2d

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

AM. GEN. OPINIONS: Revocation of license of chiro-

practor convicted of selling intoxicating liquor, 1928 -30, p28; advertising superior techniques of diagnosis, 1956 -58, p171; propriety of chiropractor using coined word to designate a specialty, 196466, p 300.

684. 110

LAW REVIEW CITATIONS: 6 WLi 602.

694. 150

ATTY. GEN. OPINIONS: Authority to raise the educationalrequirements, 1934 -36, p 464; authority of the board toprohibit licentiates from engaging in itinerant practice, 1938 -40, p 376; rule authorizing blood withdrawal in diagnosis,. (1970) Vol 34, p 924.

709

SUPERSEDED

Chapter 685

Naturopaths

Chapter 685

ATTY. GEN. OPINIONS: Advertising use of special instrument for superior diagnosis, 1956 -58, p 171.


685.010

ATTY. GEN. OPINIONS: Definition of term " drugless" as

used in statute, 1926 -28, p 385; right of naturopath to practice chiropody, 1940 -42, p 542; whether naturopaths maytreat all parts of the body and adjust bones of the feetwithout infringing on profession of chiropody, 1942 -44, p14; use of electrotherapy and hydrotherapy by naturopath, 1948 -50, p 42; administering of the " Koch treatment," 1950- 52, p 383; treating bone fractures as " minor surgery," 1956- 58, p 196; requiring a course on natural substances, 1962 -64, p 435; authority to take blood sample to test for phenylketonuria, 1964 -66, p 290.

685.020

ATTY. GEN. OPINIONS: License requirements for practice

of naturopathy, other than by spiritual means, 1940 -42, p189; authority to license naturopaths from out of state onreciprocity basis, 194042, p 372.


685.030

ATTY. GEN. OPINIONS: Right of naturopath to treat corns

by drugless methods, 1930 -32, p 18; treating bone fractures, 1956 -58. p 196.


685.060

ATTY. GEN. OPINIONS: Use of electrotherapy and hydrotherapy in practice, 1948 -50, p 42; requiring a course onnatural substances, 1962 -64, p 435; authority to take bloodsample to test for phenylketonuria, 1964 -66, p 290.

685.080

ATTY. GEN. OPINIONS: Re- examination . of applicant,

1926 -28, p 364; whether prior licensing as chiropractor ex- cuses an applicant from standard examination in fundamental sciences as condition precedent to examination for

license to practice naturopathy, 194244, p 368.

685. 100

ATTY. GEN. OPINIONS: Whether payment of fees for li-

cense suspended is a condition precedent to restoration,

1936 -38, p 92; necessity that licensing board members belicensed naturopaths, 1940 -42, p 308; whether acceptanceof license fee by board precludes revocation of license, 194042, p 338.

685. 110

CASE CITATIONS: State v. Buck, ( 1953) 200 Or 87, 262 P2d495.

685. 160

ATTY. GEN. OPINIONS: Powers and duties of board,

1930 -32, p 25.

710

r

SUPERSEDED

Chapter 686

Veterinarians

Chapter 686

ATTY..GEN. OPINIONS: Applicability to manufacture andsale of veterinary medicines of laws governing pharmacies, 1952 -54, p 7; construing " practice of veterinary medicine," 1962 -64, p 257.

686.010

ATTY. GEN. OPINIONS: Injunction against instruction and

conduct of demonstrations by unauthorized school ofbreeding, 1930 -32, p 32.

68 &030

ATTY. GEN. OPINIONS: Prescribing medicine as cure orrelief of animal disease as practicing veterinary medicineand surgery, 1926 -28, p 56; whether the operation in artificialinsemination of animals constitutes the practice of veterin-

ary medicine or surgery, 1944 -46, p 424; construing " practiceof veterinary medicine," 1962 -64, p 257.

686.040

A=. GEN. OPINIONS: Advertising by pharmacist, 1962- 64, p 257.

686. 120

NOTES OF DECISIONS

Before a license can be revoked, the licensee must be

served with a complaint containing the charges against himwhich are the basis for the contemplated revocation.

Rhodes v. Ore. State Veterinary Medicine Examining Bd., 1950) 190 Or 77, 223 P2d 804.

Attendance at the hearing by " approximately 60 repre- sentatives" of the licensee was not considered equivalent

to an appearance by the licensee. Id.

ATTY. GEN. OPINIONS: Corporate ownership of veterinarybusiness, 1966 -68, p 642.

68& 130

ATTY. GEN. OPINIONS: The phrase " unprofessional or

dishonorable conduct' as comprehensive, 1950 -52, p 58; advertising by a pharmacist, 1962 -64, p 257; corporate ownership of veterinary business, 1966 -68, p 642.

711

686.210

ATTY. GEN. OPINIONS: Personal liability of boardmembers, 1940 -42, p 484; corporate ownership of veterinarybusiness, 1966 -68, p 642.

SUPERSEDED

Chapter 687

Masseurs and Massage Businesses

Chapter 687

AM. GEN. OPINIONS: Regulation and licensing of schoolof massage, 1950.52, p 316; licensing of physical therapytechnician, 1952 -54, p 30.

687.011

AM. GEN. OPINIONS: Massage as physiotheraphy, 1956 -58, p 250.

687.021

AM. GEN. OPINIONS: Use of term " physical therapy" by masseurs, 1956 -58, p 250.

687.051

ATfY. GEN. OPINIONS: Use of term . "physical therapy" by masseurs, 1956 -58, p 250.

687. 121

ATPY. GEN. OPINIONS: Accepting late applications, 1950 -52, p 305; regulation and licensing of school of massage, 1950 -52, p 316.

712

SUPERSEDED

Chapter 688

Physical Therapists

7:K:

ATI'Y. GEN. OPINIONS: Criteria for approval of other

state's examinations, ( 1970) Vol 34, p 1170.

888,050

ATPY. GEN. OPINIONS: Criteria for approval of other


69& 070

ATI'Y. GEN. OPINIONS: Criteria for approval of other


888.080

ATI'Y. GEN. OPINIONS: Criteria for approval of otherstate's examination based on subjects covered, ( 1970) Vol

34, p 1170.

713

SUPERSEDED

Chapter 689

Pharmacists and Pharmacies;

Drug Manufacturers and Wholesalers

Chapter 689


for advertising and educational purposes, 1930 -32, p 415; use of fluorescein by optometrists, 1962 -64, p 206; shopkeeper permit and drug store license for adjoining businesses with door connecting them, 1962 -64, p 401; publichearing on proposed rules, 1962 -64, p 422; requiring pharmacies to comply with general as well as special lawsrelating to them, 1962 -64, p 448; construing " patent or proprietary medicines," 1964 -66, p 222; application to contra- ceptive drugs sold by prescription, 1964 -66, p 364; application of proposed sales tax law to sale of eyeglasses byoptometrists and opticians, 1966 -68, p 438; authority torefund fees, ( 1968) Vol 34, p 11.

689.010 to 689.660


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

689.010

ATTY. GEN. OPINIONS: Aspirin as proprietary medicine, 1948 -50, p 217; the words " Drug Sundries" on business signof unlicensed proprietor, 1948 -50, p 345; drug dispensary inclinic, 1950 -52, p 364; Alaskan drug stores as " retail pharmacies," 1950 -52, p 391; application to itinerant vendor ofveterinary medicine, 1952 -54, p 7; registered hospital pharmacy or dispensary as " retail pharmacy," 1952 -54, p 110; use of fluorescein by optometrists, 1962 -64, p 206.

689. 110

NOTES OF DECISIONS

Injury resulting from a violation of a former similar statute was conclusive evidence of negligence. Goodwin v. Rowe, ( 1913) 67 Or 1, 135 P 171.

ATTY. GEN. OPINIONS: Use of word " drugeteria" by person not a registered pharmacist, 1922 -24, p 45; display ofwords " drug sundries" on outside of drugstore as a violation, 1930 -32, p 307; legality of radio advertising of " drugdepartments," etc., which are not at all times in charge of

a registrant, 1934 -36, p 417; drug department and drug storein same building, 1936 -38, p 676; sale of aspirin on trainsoperating in this state, 1948 -50, p 217; necessity of registeredpharmacist when " drug sundries" placed on business sign, 1948 -50, p 345; legality of an unregistered pharmacist incharge of a drug department of a clinic dispensing drugs, 1950 -52, p 364; power to deny corporations and nonpharma- cists licenses to operate pharmacies, 1950 -52, p 399; licensingof manufacturing and itinerant vending of veterinary medicines, 1952 -54, p 7; retailer advertising " drugs," 1960 -62, p301; advertising by pharmacies, 1962 -64, p 448.

689. 160

AM. GEN. OPINIONS: Construing " wholesale," 193436,

p 787; application to itinerant vendor of veterinary medicine, 1952 -54, p 7; validity of regulations regarding sale ofpatent or proprietary drugs containing antihistamines, 1964 -66, p 222.

689. 180

ATTY. GEN. OPINIONS: Validity of regulations regardingsale of patent or proprietary drugs containing antihistamines, 196466, p 222.

689.210

CASE CITATIONS: State v. Ellis, ( 1947) 181 Or 615, 184

P2d 860.

ATTY. GEN. OPINIONS: Alaskan drug stores as " retailpharmacies," 1950 -52, p 391; pharmaceutical training in ahospital pharmacy or dispensary as acceptable under thissection, 1952 -54, p 110; effect of 1961 amendment on internship qualification, 1962 -64, p 467.

689.230

ATTY. GEN. OPINIONS: Reciprocal registration of New

York licensee, -1964 -66, p 92.

689.310

ATTY. GEN. OPINIONS: Power to deny corporations andnonpharmacists licenses to operate pharmacies, 1950 -52, p399; registration of hospital pharmacy or dispensary, 1952- 54, p 110; revocation of licenses for misleading advertisements, 1962 -64, p 448.

689.320

ATTY. GEN. OPINIONS: Revocation of licenses for mis-

leading advertisements, 1962 -64, p 448.

689.330

NOTES OF DECISIONS

The United States Pharmacopoeia, National Formulary, and New and Nonofficial Remedies are official publications

of which the court may take judicial knowledge. State v. Combs, ( 1942) 169 Or 566, 130 P2d 947.

ATTY. GEN. OPINIONS: Whether places of business on

Indian reservations are exempt, 1938 -40, p 736; shopkeepers' permits for operators of club cars and dining cars on trains, 1948 -50, p 217; application to itinerant vendor of veterinarymedicine, 1952 -54, p 7; shopkeeper permit and drug storelicense for adjoining businesses with door connecting them, 1956 -58, p 302; transfer of shopkeepers permit, 1962 -64, p401.

714

is

SUPERSEDED

689.350

NOTES OF DECISIONS

There is nothing about this section which violates eitherU.S. Const., Am. 14 or Ore. Const. Art I, § 20. Anderson v.

Farr, ( 1920) 97 Or 137, 191 P 346; State v. McFall, ( 1924)

112 Or 183, 229 P 79.

An indictment was sufficient where it charged the offense

in the language of the statute. State v. Miller, ( 1909) 54Or 381, 103 P 519.

ATTY. GEN. OPINIONS: Authority to collect license taxfrom agent soliciting orders for future delivery of goodsfrom another state, 1920 -22, p 288; license requirements forgeneral dealers selling proprietary or patent medicines inthe original packages, 192426, p 433; authority of boardto issue license for less than a year and accept less than

statutory fee, 192426, p 590; right of tea company to sellface powder, tooth paste, etc., through unlicensed agents,

1926 -28, p 604; effect of device to evade statutes upon dutyof agents to secure license, 1928 -30, p 288; regulation of salesof drugs, nostrums, etc., by itinerant or traveling vendors, 1932 -34, p 6; sales by persons who purchase their stockoutright as interstate commerce, 1932 -34, p 20; liability forlicense fees of persons making deliveries from house tohouse after soliciting and taking orders therefor, 1932 -34, p 97; saleswoman of a laboratory as itinerant vendor, 1932- 34, p 349; authority of board to issue blanket itinerantvendor' s license to a firm, 1946 -48, p 85; license requirementsfor distributors who deal exclusively with itinerant vendors, 1948 -50, pp 153; sale of aspirin on trains, 1948 -50, p 217; license f$r person who collects and sells roots and herbs,

1948-50, p 268; application to itinerant vendor of veterinarymedicine, 1952 -54, p 7; application to vendors who purchasefrom Oregon or nonresident wholesalers, 1964 -66, p 46.

689.410

ATTY. GEN. OPINIONS: Revocation of licenses for mis-

leading advertisements, 1962 -64, p 448.

689.423

ATTY. GEN. OPINIONS: Board' s power to remove forged

prescriptions from pharmacy files, 1958 -60, p 50.

689.510

ATTY. GEN. OPINIONS: Power to deny corporations andnonpharmacists licenses to operate pharmacies, 1950 -52, p399; board' s duties as exercise of sovereign power, 1962 -64,

p 309.

689.520

ATTY. GEN. OPINIONS: Salary of board member servingas secretary- treasurer, 1962 -64, p 309; waiver of salary ofone lucrative office, 196466, p 25.

689.530

ATTY. GEN. OPINIONS: Construing retail drug businessto include hospital pharmacy, 1966 -68, p 95.

689.540

ATTY. GEN. OPINIONS: Validity of restricting appointments to nominees of unofficial group, 196466, p 178.

689.550

ATTY. GEN. OPINIONS: Salary of board member serving

689.720

as secretary- treasurer, 1962 -64, p 309; waiver of salary ofone lucrative office, 1964 -66, p 25.

689.560

ATTY. GEN. OPINIONS: Salary of board member servingas secretary- treasurer, 1962 -64, p 309; waiver of salary ofone lucrative office, 1964 -66, p 25.

689.600


for advertising and educational purposes, 1930 -32, p 415; authority of board to receive private funds for inspectionand law enforcement purposes, 1934 -36, p 533; procedurefor seizure of drugs illegally held or offered for sale, including habit - forming drugs left unattended in the hands of anunauthorized agent, 1950 -52, p 366; board' s power to removeforged prescriptions from pharmacy files, 1958 -60, p 50; revocation of licenses for misleading advertisements, 1962- 64, p 448.

689.610

ATTY. GEN. OPINIONS: Board' s power to remove forged

prescriptions from pharmacy files, 1958 -60, p 50; board' sduties as exercise of sovereign power, 1962 -64, p 309.

689.620

NOTES OF DECISIONS

The board's attempt to regulate advertising of drugs wasbeyond the scope of the authority vested in the board. Oregon Newspaper Publishers Assn. v. Peterson, ( 1966) 244

Or 116, 415 P2d 21.

FURTHER CITATIONS: Gortmaker v. Seaton, ( 1969) 252

Or 440, 450 P2d 547.

ATTY. GEN. OPINIONS: Power to deny corporations andnonpharmacists licenses to operate pharmacies, 1950 -52, p399; board regulations, 1956 -58, p 302; board' s power toremove forged prescriptions from pharmacy files, 1958 -60, p 50; board' s duties as exercise of sovereign power, 1962 -64, p 309; public hearing on proposed rules, 1962 -64, p 422; revocation of licenses for misleading advertisements, 1962- 64, p 448; validity of regulations regarding sale of patentor proprietary drugs containing antihistamines, 1964 -66, p222.


689.650

CASE CITATIONS: State v. Sargent, ( 1969) 252 Or 579, 449

P2d 845.

689.660

NOTES OF DECISIONS

Law authorizing the Drug Advisory Council to designatedangerous drugs was not unconstitutional. State v. Sargent,

1969) 252 Or 579, 449 P2d 845.

FURTHER CITATIONS: Gortmaker v. Seaton, ( 1969) 252

Or 440, 450 P2d 547.

689.720

ATTY. GEN. OPINIONS: Internship in licensed pharmacyor manufacturing plant, 1962 -64, p 467.

715

SUPERSEDED

689.725

689.725

ATTY. GEN. OPINIONS: Public hearing on proposed rules, 1962 -64,. p 422.

689.890

ATTY. GEN. OPINIONS: Licensing of distributors orwholesalers, 1948=50, p 153; board' s authority to seize property, 1950 -52, p 366; naturopath or chiropractor dispensingdrugs, 1950 -52, p 383.

716

is

SUPERSEDED

Chapter 690

Barbers and Barbering

Chapter 690

CASE CITATIONS: State Unemp. Comp. Comm. v. Brown, 1960) 225 Or 306, 358 P2d 502; Golden Shear Barber Shop

v. Morgan, ( 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App247, 471 P2d 858.

ATTY. GEN. OPINIONS: Licensing instructors who givespecial on- the -job training to barbers, 196466, p 263; regulations for barber schools, 196466, p 301.

690.010

ATTY. GEN. OPINIONS: Right of barber to engage in

practice of arranging, dressing, and waving of the hair, 193436, p 450, 1940 -42, p 81; barber shops in private clubs, assembly halls, meeting places, and mess halls, 1936 -38, p496; licensing instructors who give special on- the -job train - ing' to barbers, 196466, p 263; operating a sauna bath inconnection with a licensed shop, 1966 -68, p 244.

690.020

CASE CITATIONS: Golden Shear Barber Shop v. Morgan, 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App 247, 471 P2d

858.

ATTY. GEN. OPINIONS: Right of operator of a barber

college and students to practice barbering, 1936 -38, p 266; when owner or operator of shop not required to be licensed, 1938 -40, p 340; barber from foreign country, 1948 -50, p 400; population level as standard for licensing of barber schools, 1958 -60, p 104.

NOTES OF DECISIONS

Provisions requiring supervision of apprentices do notconclusively turn the relationship of supervising barber andapprentice into an employer- employe relationship under the

Unemployment Insurance Law. Golden Shear Barber Shopv. Morgan, ( 1971) 258 Or 105, 481 P2d 624, rev'g 3 Or App247, 471 P2d 858.

690.040

ATTY. GEN. OPINIONS: Whether civilians practicing barbering in an army or Civilian Conservation Corps camp areexempt, 1936 -38, p 700; whether shops in private clubs, assembly halls, meeting places, and mess halls are exempt, 1936 -38, p 496.

690.050

NOTES OF DECISIONS

A former provision requiring United States citizenship asa qualification was unconstitutional under U.S. Const.

Amend. 14, prohibiting any state from denying to persons

within its jurisdiction the equal protection of the laws. Statev. Ellis, ( 1947) 181 Or 615, 184 P2d 860.

FURTHER CITATIONS: Golden Shear Barber Shop v. Morgan, ( 1970) 3 Or App 247, 471 P2d 858, rev'd, 258 Or105, 481 P2d 624.

ATTY. GEN. OPINIONS: Right to a hearing upon denialof a certificate for failure to pass an examination, standards

for practical examination, 1962 -64, p 307; authority of boardto require schools to report practice and hours of trainingof interrupted students, 1964 -66, p 301; construing " crimeof moral turpitude," 1966 -68, p 536.

690.060

ATTY. GEN. OPINIONS: Right to a hearing upon denialof a certificate for failure to pass an examination, standards

for practical examination, 1962 -64, p 307; authority of boardto require schools to report practice and hours of trainingof interrupted students, 1964 -66, p 301.

690.090

ATTY. GEN. OPINIONS: Meaning of term " immediately," 1938 -40, pp 418, 536; qualifications of nonresident barberto take the examination for license as a registered barber,

1940 -42, p 243; authority of the board to waive any statutoryqualifications for the examination for registration in this

state by nonresident persons, 1944 -46, p 283; eligibility ofdisplaced person to take barber' s examination, 1948 -50, p400.

690. 125

ATTY. GEN. OPINIONS: Licensing instructors who givespecial on- the -job training to barbers, 1964 -66, p 263.

690. 130

CASE CITATIONS: State v. Briggs, ( 1904) 45 Or 366, 77P 750, 78 P 361.

ATTY. GEN. OPINIONS: Eligibility of displaced person totake barber's examination, 1948 -50, p 400; population levelas standard for licensing of barber schools, 1958 -60, p 104; licensing instructors who give special on- the -job trainingto barbers, 196466, p 263; authority of board to requireschools to report practice and hours of training of interrupted students, 1964 -66, p 301; exceeding limit of eighthours a day, ( 1968) Vol 34, p 170.

690. 140

CASE CITATIONS: State Unemp. Comp. Comm. v. Brown, 1960) 225 Or 306, 358 P2d 502.

ATTY. GEN. OPINIONS: Population level as standard for

licensing of barber schools, 1958 -60, p 104.

717

SUPERSEDED

690. 150

690. 150

ATTY. GEN. OPINIONS: Power of board to exact an additional fee for reexamination of an applicant who has failed,

1930 -32, p 215; license as nontransferrable from one personto another or to another location, 193840, p 641; refundingfees, 196466, p 312.

690.210

NOTES OF DECISIONS

This section does not violate U.S. Const., Am. 14, prohib-

iting any state from denying to persons within its jurisdiction property without due process of law or equal protectionof the laws. Ex parte Northrup, ( 1902) 41 Or 489, 69 P 445.

This section is not a special law for punishment of crimes

and misdemeanors, as prohibited by Ore. Const. Art. IV, 23. Id.

FURTHER CITATIONS: McGowan v. Maryland, ( 1961) 366US 420, 557, 81 S Ct 1101, 6 L Ed 2d 393.

ATTY. GEN. OPINIONS: Constitutionality of this section, 1952 -54, p 88.

690.220

ATTY. GEN. OPINIONS: Operation of a barber shop in partof a room occupied by a pool table, 1932 -34, p 250; shopsoperated in trucks and trailers, 1938 -40, p 763; populationlevel as standard for licensing of barber schools, 1958 -60, p 104; gum vending machines in barber shops, 1962 -64, p92; operating a sauna bath in connection with a licensedshop, 1966 -68, p 244; as a sanitary measure, 1966 -68, p 635.

690.230

ATTY. GEN. OPINIONS: Misconduct of persons otherwise

qualified, 1962 -64, p 307.

690.245

ATTY. GEN. OPINIONS: Procedure for revocation of li-

cense, 1934 -36, p 574; right to a hearing upon denial of acertificate for failure to pass an examination, 1962 -64, p 307.

690.280

CASE CITATIONS: State v. Terwilliger, ( 1933) 141 Or 372, 11 P2d 552, 16 P2d 651.

ATTY. GEN. OPINIONS: Applicability of five years qualification to reappointments to the board, 1964 -66, p 137, 1966 -68, p 217; effect of congressional redistricting law, 1966 -68, p 217.

690.290

ATTY. GEN. OPINIONS: What constitutes " entire time"

under this section, 1950 -52, p 131; applicability of five yearsqualification to reappointments to the board, 1964 -66, p 137.

690.330

NOTES OF DECISIONS

Under a former similar statute, the power granted theboard to prescribe rules and regulations did not constitutean improper delegation of legislative power. State v. Briggs, 1904) 45 Or 366, 77 P 750, 78 P 361.

ATTY. GEN. OPINIONS: Authority of board to stop barbercolleges from charging customers for work done by students, 1930 -32, p 788; power of board to disapprove a barberschool or college for failure to comply with rules, 1932 -34, p 354; power of board to regulate the opening and closinghours of barber colleges, 1932 -34, p 385; reasonableness ofregulation, 1958 -60, p 104; regulations for barber schools, 1962 -64, p 271, 1964 -66, p 301; authority to require schoolsto report practice and hours of training of interrupted students, 1964 -66, p 301.

718

SUPERSEDED

is

Chapter 691

Cosmetic Therapists

Chapter 691

A=. GEN. OPINIONS: Application to wigmakers, 1962-

64, p 141.

691.020

ATTY. GEN. OPINIONS: Authority of an electrologist toremove warts, moles and other blemishes from the scalp, face, neck, arms and upper part of the body by use ofelectricity, 1942 -44, p 248; authority of electrologist to remove hair from the legs, 1946 -48, p 241; license issued toone of four branch offices, 1952 -54, p 125; application towigmakers, 1962 -64, p 141; application to the sale of wigs, 1966 -68, p 196.

691. 055

ATTY. GEN. OPINIONS: Admission of students of a beautyschool operated by school district to examination, 1940 -42, p 319; authority of the board to require additional trainingbefore allowing applicant to take a second or further examination, 1940 -42, p 345; practice of electrolysis without license as cosmetic therapist, 1942 -44, p 87; authority of boardto credit student for hours at a school, 1964 -66, p 251; authority of chiropractor to certify that a person is freefrom contagious and infectious diseases, 1966 -68, p 153.

691. 071

ATTY. GEN. OPINIONS: Examination of applicants gener-

ally, 1928 -30, p 301.

691. 110

ATTY. GEN. OPINIONS: Legality of issuing a shop licenseto a licensed electrologist who is also a licensed masseur

and intends to practice physical therapy, massage and electrolysis in " one room," 1952 -54, p 125; application to wigmakers, 1962 -64, p 141.

691. 130

ATTY. GEN. OPINIONS: Authority of operators of beautyculture schools to employ solicitors and advertise by radio, 1938 -40, p 635; sending representative to confer with prospective students as grounds for revocation, 1938 -40, p 724; whether an advertisement in the newspaper concerning theprice of a permanent wave constitutes employing a capper,

steerer or solicitor, 194446, p 126; cooperating in box topadvertising promotion, 1958 -60, p 81; propriety of advertising, 1962 -64, p 313; denial of a school license for conviction, 196466, p 357.

691. 170

ATI'Y. GEN. OPINIONS: Legality of issuing a shop license

to a licensed electrologist who is also a licensed masseur

and intends to practice physical therapy, massage, andelectrolysis in " one room," 1952 -54, p 125; installing domestic equipment in beauty shop, 1958 -60, p 81; board regulations covering merchandising activities, 1966 -68, p 356; regulation covering list of incidental merchandise, 1966 -68, p635.

691. 190

ATTY. GEN. OPINIONS: Refusal to approve school because

of poor ventilation and lighting facilities, 1938 -40, p 657; necessity that graduate schools of beauty culture be registered, 1940 -42, p 23; necessity that vocational schools instructing in beauty culture obtain licenses, 194042, p 89; whether additional license is needed to conduct both dayand evening classes, 1940 -42, p 129; authority of the boardto make licensing requirements not prescribed by statute, 1940 -42, p 493; whether a cosmetic therapy school licensemay be renewed although the school may later be discon- tinued, and a cosmetic therapy shop licensed for the samelocation provided the school is no longer in operation,

1942 -44, p 248; standards, 1956 -58, p 297.

691. 230

ATTY. GEN. OPINIONS: Denial of a school license for

conviction, 1964 -66, p 357.

691. 245

ATI'Y. GEN. OPINIONS: Authority of board to credit student for hours at a school, 196466, p 251.

691. 310

ATI'Y. GEN. OPINIONS: Applicability of Public Employes' Retirement Act to secretary of board, 196466, p 286.

691.320

ATTY. GEN. OPINIONS: Applicability of Public Employes' Retirement Act to secretary of board, 1964 -66, p 286; effectof two 1971 amendments to this section, ( 1971) Vol 35, p782.

691. 330

ATTY. GEN. OPINIONS: Applicability of Public Employes' Retirement Act to secretary of board, 1964 -66, p 286.

691. 340

ATTY. GEN. OPINIONS: Applicability of Public Employes' Retirement Act to secretary of board, 1964 -66, p 286.

719

SUPERSEDED

691. 350

691. 350

AM. GEN. OPINIONS: Power of board to require evi-

dence of financial responsibility, 1956 -58, p 297; board regulations covering merchandising activities, 1966 -68, p 356; regulation covering list of incidental merchandise, 1966 -68, p 635.

720

r

is

SUPERSEDED

r

Chapter 692

Funeral Directors and Embalmers; Funeral Establishments

692.020

ATTY. GEN. OPINIONS: Insurance salesman selling pre- paid funeral service policies, 1958 -60, pA2.

692.170

ATTY. GEN. OPINIONS: Authority of the board to reinstateveterans who make application within six months of dis-

charge, 1944 -46, p 237.

692.180

NOTES OF DECISIONS

Paragraph ( c) with (d) of subsection ( 2) prohibits solici-

tation at any time. Board of Funeral Directors and Em- balmers v. Greenwood, ( 1967) 246 Or 258, 425 P2d 169.

ATTY. GEN. OPINIONS: Expanding grounds for revocationthrough rulemaking power, 1950 -52, p 58; use of insurancesalesman to obtain business, 1958 -60, p 42; sponsoring funeral insurance as soliciting, 1962 -64, p 151; licensee -as alicensed funeral insurance salesman, 1964 -66, p 365; distinguishing solicitation' from general advertising, 1966 -68, p382.

692. 190

NOTES OF DECISIONS

A license can be withheld only on the grounds stated

in the statute. DeMarais v. Stricker, ( 1936) 152 Or 362, 53

P2d 715.

Members of the board who required an applicant to dis-

charge an employe as a condition precedent to the grant

of a license were liable in damages to the employe. Id.

692.300

ATTY. GEN. OPINIONS: Payment of additional monthlycompensation to the State - Health Officer for services ren-

dered the Board of Funeral Directors and Embalmers,

1948- 50, p 288.

692.310

ATTY. GEN. OPINIONS: Payment of additional monthlycompensation to the State Health Officer for services rendered the Board of Funeral Directors and Embalmers,

1948 -50, p 288.

692.320

ATTY. GEN. OPINIONS: Rules relative to soliciting business, 1938-40, p 548; payment of additional monthly compensation to the State Health Officer for services rendered

the Board of Funeral Directors and Embalmers, 1948 -50, p288.

721

SUPERSEDED

Chapter 693

Plumbers

Chapter 693


sprinkler systems, 1964 -66, p 57; conditioning license ofjourneyman on apprentice training or journeyman experience, ( 1968) Vol 34, p 148.

693.010

ATTY. GEN. OPINIONS: Meaning of the term " plumbing," 1942 -44, p 199; conditioning license of journeyman on apprentice training or journeyman experience, ( 1968) Vol 34, p 148.

693.020

ATTY. GEN. OPINIONS: Whether buildings immediatelyadjacent to incorporated city containing altogether morethan 250 inhabitants are excepted, 1938 -40, p 714; permitto install plumbing to one not holding a certificate of competency from the board of health, 193840, p 63; conditioninglicense of journeyman on apprentice training or journeymanexperience, ( 1968) Vol 34, p 148.

693.030

ATTY. GEN. OPINIONS: Conditioning license of journey-

man on apprentice training or journeyman experience, 1968) Vol 34, p 148.

693.040

ATTY. GEN. OPINIONS: Conditioning license of journeyman on apprentice training or journeyman experience, 1968) Vol 34, p 148.

693.060

ATTY. GEN. OPINIONS: Refund or payment on second

examination of fee where applicant fails to appear for first

examination, 1942 -44, p 93; conditioning license of journeyman on apprentice training or journeyman experience, 1968) Vol 34, p 148.

693. 100


sprinkler systems, 1964 -66, p 57; conditioning license ofjourneyman on apprentice training or journeyman experience, ( 1968) Vol 34, p 148.

693. 120

ATTY. GEN. OPINIONS: Conditioning license of journeyman on apprentice training or journeyman experience, 1968) Vol 34, p 148.

722

SUPERSEDED

Chapter 694

Hearing Aid Dealers

Chapter 694 1 employes, 1954 -56, p 215; authority of State Board of Healthto refund application fee, 1958 -60, p 321.

ATTY. GEN. OPINIONS: Applicability to officers and employes of municipalities, 1954- 56, p 194; applicability to state 694. 155

723


SUPERSEDED

Chapter 695

Watch and Clock Makers. and Dealers

695.010 695.050

ATPY. GEN. OPINIONS: Applicability of former similar ATTY. GEN. OPINIONS: Statutory reduction in expendi- statute to persons repairing parking meters, safes and tunes of board, 1962 -64, p 460. vaults, 1940 -42, p 508.

724

SUPERSEDED

Chapter 696

Real Estate and Business Brokers; Escrow Agents

Chapter 698

NOTES OF DECISIONS

Under former similar statute, an employe who by agreement with his employer procured a purchase for employer's

business was not engaged in the business of dealing inbusiness chances and was not subject to business chance

broker's law. Klarr v. Heckart, ( 1955) 206 Or 178, 291 P2d1016.

FURTHER CITATIONS: Miller v. Ziedrich, ( 1953) 199 Or

505, 263 P2d 611; Sorenson v. Brice Realty Co., ( 1955) 204

Or 223, 282 P2d 1057; State ex rel. Jensen v. Standridge,

1960) 224 Or 334, 355 P2d 1114; Widing v. Jensen, ( 1962) 231 Or 541, 373 P2d 661; City of Beaverton v. Harris, ( 1970) 3 Or App 541, 474 P2d 771. -

ATTY. GEN. OPINIONS: Necessity of nonresident maintaining a definite place of business in this state, 1948 -50, p 433; splitting commissions with unlicensed nonresidentbroker, 1950 -52, p 197; selling of cemetery plots, 1950 -52, p 409; necessity for licensing of regular employe of corporation who buys, exchanges and sells real property regularlyfor a profit, 195456, p 217; applicability to special appraisersfor Department of Veterans Affairs, 1958 -60, p 40; as containing no apprenticeship requirement, 1958 -60, p 288; scopeof rulemaking power, 1960 -62, p 40; necessity that realproperty be part of the business chance to require licensing, 1960 -62, p 88; application to corporation performing appraisals and other services regarding real property, 1966 -68, p 37; application to manager of rental properties, 1966 -68, p 527; license required to auction real property, 1966 -68, p582.

69 &010

NOTES OF DECISIONS

A person engaged in buying unimproved lots, improvingthem, and then selling them, is engaged in the real estatebusiness. Roberts v. Mariner, ( 1952) 195 Or 311, 245 P2d927.

Furnishing names of interested purchasers expecting tobe paid constitutes assistance in procuring pro§pects. Car- nahan v. McCarver, ( 1970) 255 Or 36, 463 P2d 857.

ATTY. GEN. OPINIONS: License for State Land Board' s

agent-to sell state property, 1940 -42, p 467; need for licensefor persons making appraisals of buildings of manufacturingplants, together with machinery and equipment therein, which appraisals are made in relation to insurance, taxa-

tion, probation of estates, and other matters not havingto do with the sale or exchange of real property or intereststherein, 1942- 14, p 200; one *who auctions or attempts toauction real estate for a fee or commission as required to

be licensed as a real estate broker, 1944 -46, p 78; licenseneeded by company participating indirectly in sale of realty, 1948 -50, p 418; sale of standing timber as a sale of " realestate" within this section, 1948 -50, p 211; ,selling cemeterylots as within definitions of this section, 1950 -52, p 409; regular employe of corporation which buys, exchanges and

sells real property regularly for a profit, 1954 -56, p 217; realestate brokerage referral system as within subsection ( 8)

j), 1960 -62, p 55; construing " associate broker," 1964 -66,

p 281; application of chapter to corporation performingappraisals and other services regarding real property,

1966 -68, p 37; license required to auction real property, 1966- 68, p 582.

69& 020

NOTES OF DECISIONS

Under former similar statute, agreements entered into in

violation of the statutes regulating real estate brokers werevoid. Hunter v. Cunning, ( 1945) 176 Or 250, 154 P2d 562, 157 P2d 510.

A contract to pay a broker' s commission must be madein the name of the broker, not of a salesman, in order tobe valid. Miller v. Ziedrich, ( 1953) 199 Or 505, 263 P2d 611.

Only licensed brokers may receive remuneration for aiding in sale of real property by furnishing names of interestedpurchasers. Carnahan v. McCarver, ( 1970) 255 Or 36, 463P2d 859.

FURTHER CITATIONS: Devereaux v. Cockerfine, ( 1946)

179 Or 229, 170 P2d 727; Killam v. Tenney, ( 1961) 229 Or134, 366 P2d 739; Certified Realty Co. v. Reddick, ( 1969) 253 Or 617, 456 P2d 502; Ferris v. Meeker Fertilizer Co.,

1971) 258 Or 377, 482 P2d 523.

ATTY. GEN. OPINIONS: Splitting commissions with unlicensed nonresident broker, 1950 -52, p 197; applicability tospecial appraisers, for Department of Veterans Affairs,

1958 -60, p 40.

698.030

ATTY. GEN. OPINIONS: Authority of shareholders to sellrealty of corporation, 1924 -26, p 392; when attorneys forthe State Land Board must be licensed, 1936 -38, p 340; saleof standing timber, 1948 -50, p 212; splitting commissionswith unlicensed nonresident broker, 1950 -52, p 197; licensingof nonresident salesmen by reciprocity, 1950 -52, p 351; selling of cemetery plots, 1950 -52, p 409; regular employe ofcorporation which buys, exchanges and sells real propartyregularly for a profit, 1954 -56, p 217; application of chapterto corporation performing appraisals and other servicesregarding real property, 1966 -68, p 37; application to manager of residential properties, 1966 -68, p 527.

69& 040

NOTES OF DECISIONS

Under former similar statute, an employe who by agreement with his employer procures a purchaser for employer's

business is not engaged in the business of dealing in business chances and is not subject to business chance broker's

law. Klarr v. Heckart, ( 1956) 206 Or 178, 291 P2d 1016.

OR

SUPERSEDED

696.050

FURTHER CITATIONS: Carnahan v. McCarver, ( 1970) 255

Or 36, 463 P2d 657.

ATTY. GEN. OPINIONS: Applicability to special appraisersfor Department of Veterans Affairs, 1958 -60, p 40; application of chapter to corporation performing appraisals andother services regarding real property, 1966 -68, p 37.

696.050

ATTY. GEN. OPINIONS: United States citizenship statusof applicant for real estate license who has served sentence

in state penitentiary, 1950 -52, p 263; applicant charged withincome tax evasion, 1966 -68, p 536.

696.060

ATTY. GEN. OPINIONS: License issued to married woman

in surname of husband, 1938 -40, p 609; right of brokers toestablish branch offices, 1950 -52, p 115; authority to requirefingerprints, 1950 -52, p 185.

698.080

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

ration performing appraisals and other services regardingreal property, 1966 -68, p 37.

696.0911

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

ration performing appraisals and other services regarding

real property, 1966 -68, p 37.

696. 110

NOTES OF DECISIONS

Taxation of real estate businesses under a city ordinancewas for no regulatory purpose and not within the prohibition of subsection ( 1). City of Beaverton v. Harris, ( 1970) 3 Or App 541, 474 P2d 771.

ATTY. GEN. OPINIONS: City license fee on real estatebrokers and salesmen, 1956 -58, p 204; application to accountants, 1956 -58, p 215; application to engineers, 1956 -58, p 221; city license fee imposed on state licensed occupations, 1970) Vol 34, p 1089.


696. 120

ATTY. GEN. OPINIONS: Power of Real Estate Commis-

sioner to require fingerprints, 1950 -52, p 185.

696. 130

ATTY. GEN. OPINIONS: Licensing of nonresident salesmenby reciprocity, 1950 -52, p 351; purpose of temporary license, 1958 -60, p 288.

696. 140

ATTY. GEN. OPINIONS: Effect of temporary license issuedbefore 1947 amendment of this section, 1958 -60, p 288.

696. 160

ATTY. GEN. OPINIONS: Issuing of more than one licenseto brokers with branch offices, 1952 -54, p 28.

696. 165

ATTY. GEN. OPINIONS: Disposition of associate brokers'

fees prior to 1965, 1964 -66, p 281.

696. 180

ATTY. GEN. OPINIONS: Right of brokers to establish

branch offices, 1950 -52, p 115; authority to issue branchoffice license in name other than the name appearing onthe original license of the licensee, 1952 -54, p 27.

ATTY. GEN. OPINIONS: Necessity of nonresident maintaining a definite place of business in thisstate, 1948 -50, p 433; licensing of branch office to be operated by a realestate salesman, 1950 -52, p 116; issuing of more than onelicense to brokers with branch offices, 1952 -54, p 28.

696.221

ATTY. GEN. OPINIONS: Authority for rule for not chargingsalesman' s reactivation fee, 1966 -68, p 158.

696.224


696.226

CASE CITATIONS: Ferris v. Meeker Fertilizer Co., ( 1971)

258 Or 377, 482 P2d 523.


696.240

CASE CITATIONS: Medaz v. DePrez, ( 1963) 2.36 Or 31, 386P2d 805.

CASE CITATIONS: Hartford Acc. and Ind. Co. v. Ankeny, 1953) 199 Or 310, 261 P2d 387.

ATTY. GEN. OPINIONS: Necessity of nonresident maintaining a definite place of business in this state, 1948 -50, p 433; splitting commissions with unlicensed nonresidentbroker, 1950 -52, p 197; licensing of nonresident salesmenby reciprocity, 1950 -52, p 351; application of chapter tocorporation performing appraisals and other services re-

garding real property, 1966 -68, p 37.

696.260

ATTY. GEN. OPINIONS: Splitting commissions with unlicensed nonresident broker, 1950 -52, p 197; licensing ofnonresident salesmen by reciprocity, 1950 -52, p 351.


696.270

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

ATTY. GEN. OPINIONS: Right of brokers to establish

branch offices, 1950 -52, p 115; city license fees on real estatebrokers and salesmen, 1956 -58, p 204, 1958-60, p 59; compar-

726

r

is

SUPERSEDED

able provisions relating to insurance agents, 1958 -60, p 77; disposition of collected funds, 1960 -62, p 320; disposition ofassociate brokers' fees prior to 1965, 1964- 66, p 281; authority for rule for not charging salesman' s reactivation fee, 1966 -68, p 158.

696.290

NOTES OF DECISIONS

Real estate salesman can deal only with a broker eventhough the owner of property is an officer of the brokercompany. Sorenson v. Brice Realty Co., ( 1955) 204 Or 223,

282 P2d 1057.

Payment to an agent ( salesman) having authority toreceive payment is generally considered payment to theprincipal ( broker). Jensen v. Pitman, ( 1963) 236 Or 59, 386P2d 803.

A factual manual transfer of the. commission from the

broker to the salesman is not essential if the broker deter-

mines the distribution. Id.

FURTHER CITATIONS: Rahoutis v. State Unemp. Comp. Comm., ( 1943) 171 Or 93, 136 P2d 426.

ATTY. GEN. OPINIONS: Licensing of branch office to beoperated by a real estate salesman, 1950 -52, p 115; splittingcommissions with unlicensed nonresident broker, 1950 -52,

p 197; real estate brokerage referral system charging ap- parently flat fee, 1960 -62, p 55.

NOTES OF DECISIONS

Paragraph ( q) of subsection ( 1) embodies a statement ofthe common law rule of the fiduciary relationship of a realestate broker to his principal. Wnding v. Jensen, ( 1962) 231Or 541, 373 P2d 661.

If the facts found by the commissioner are supported bysubstantial evidence, they are binding upon the appellatecourt. Miesen v. Dept. of Commerce, ( 1970) 3 Or App 251, 473 P2d 691.

There was substantial evidence to support the findings

of the commissioner. Id.

FURTHER CITATIONS: Hartford Acc. and Ind. Co. v. An-

keny, ( 1953) 199 Or 310, 261 P2d 387; Jensen v. Pitman, 1963) 236 Or 59, 386 P2d 803.

ATTY. GEN. OPINIONS: Licensing of branch office to beoperated by a real estate salesman, 1950 -52, p 116; splittingcommissions with unlicensed nonresident broker, 1950 -52,

p 197; authority to determine denial of broker' s license, 1958 -60, p 26; authority of board to discipline licensees usingbait advertising," 1960 -62, p 40; construing " crime of moral

turpitude," 1966 -68, p 536; broker's use of third party forcollections, ( 1970) Vol 35, p 87.

696.375

ATTY. GEN. OPINIONS: Civil service status of positions

in Department of Commerce, 1964 -66, p 51; use of blanketposition bond in lieu of individual surety bond, 1966 -68, p83.

696.385

ATTY. GEN. OPINIONS: Scope of rulemaking power, 1960 -62, p 40.

69& 425

A=. GEN. OPINIONS: Delegation of duty to grade ex-

696.620

amination papers, 1958 -60, p 253; authority of . board todiscipline licensees using " bait advertising," 1960 -62, p 40.

696.480

ATTY. GEN. OPINIONS: Licensing of nonresident salesmenby reciprocity, 1950 -52, p 351.

696.490

ATTY. GEN. OPINIONS: Tithing from Real Estate Educa- tional Account, 1960 -62, p 320; disposition of associatebrokers' fees prior to 1965, 1964 -66, p 281.

69 &505 to 696.580

ATTY. GEN. OPINIONS: Authority of commissioner tosuspend or revoke escrow agency license for alleged unauthorized practice of law, 1966 -68, p 43; application to titleinsurance company's escrow service at branch office, (1970) Vol 35, p 133.

696.505

ATTY. GEN. OPINIONS: Construing " person," ( 1970) Vol

35, p 133.

696.520

ATTY. GEN. OPINIONS: Application to title insurance

company's escrow service at branch office, ( 1970) Vol 35, p 133.

696.535

ATTY. GEN. OPINIONS: Authority _ of commissioner tosuspend or revoke escrow agency license for alleged unauthorized practice of law, 1966 -68, p 43.

696.555

CASE CITATIONS: United States Nat. Bank v. Am. Escrow, Inc., ( 1965) 250 F Supp 302.

696.560

NOTES OF DECISIONS

Funds deposited under this section are held by the bankin trust. United States Nat. Bank v. Am. Escrow, Inc., (1965)

250 F Supp 302.

696.565

NOTES OF DECISIONS

The burden is on the attaching creditor to show whatpart, if any, of the fund is not fiduciary in character. UnitedStates Nat. Bank v. Am. Escrow, Inc., ( 1965) 250 F Supp302.

696.610

CASE CITATIONS: Klarr v. Heckart, ( 1959) 218 Or 1, 341

P2d 535.

ATTY. GEN. OPINIONS: Necessity for real property to bea part of the business chance, 1960 -62, p 88.

696.620

NOTES OF DECISIONS

Under former similar statute, an employe who by agreement with his employer procures a purchaser for employer's

727

SUPERSEDED

696.710

business is not engaged in the business of dealing in business chances and is not subject to business chance broker' slaw. Klarr v. Heckart, ( 1956) 206 Or 178, 291 P2d 1016.

690.710

NOTES OF DECISIONS

At the time the alleged action arose" means at the timeor throughout the period when the broker performed the

services which culminated in the accrual of his cause of

action. Hunter v. Cunning, ( 1945) 176 Or 250, 154 P2d 562, 157 P2d 510.

A contract to pay a broker's commission must be madein the name of the broker, not of a salesman, in order tobe valid. Miller v. Ziedrich, ( 1953) 199 Or 505, 263 P2d 611.

Only licensed brokers may receive remuneration for aiding in sale of real property by furnishing names of interestedpurchasers. Carnahan v. McCarver, ( 1970) 255 Or 36, 463

P2d 857.

This section does not preclude recovery merely becausethe broker' s agent was on an inactive license for part of

the period of the listing agreement. Ferris v. Meeker Ferti- lizer Co., ( 1971) 258 Or 377, 482 P2d 523.

FURTHER CITATIONS: Devereaux v. Cockerline, ( 1946)

179 Or 229, 170 P2d 727; Pedersen v. Pete Wilson Realty, Inc., (1970) 256 Or 622, 475 P2d 413; Wells v. Davis, ( 1970) 258 Or 93, 480 P2d 699.

696.740

NOTES OF DECISIONS

Jurisdiction for judicial review provided by a former similar statute was excepted from the Administratives Proce- dures Act. State v. Standridge, ( 1960) 224 Or 334, 355 P2d1114.

ATTY. GEN. OPINIONS: Power of commissioner to rein-

state license after cancellation or revocation for cause,

1924 -26, p 582; one licensed as a broker as entitled to ahearing before his license is canceled or revoked, even ifthe licensee has been found guilty of misconduct in courtin a civil suit brought against him for the recovery of asecret profit made by him, 1944 -46, p 195; hearing on denial, cancellation or revocation of broker's license, 1958 -60, p 26.


728

SUPERSEDED

11

Chapter 697

Collection Agencies;

Debt Consolidating Agencies

Chapter 697

NOTES OF DECISIONS

That part of the chapter regulating debt consolidatingagencies does not affect creditors rights or the law as to

assignments for benefit of creditors. Hall's W. Auto SupplyCo. v. Brock, ( 1965) 240 Or 85, 400, P2d 5.

FURTHER CITATIONS: Beck v. Aichele, ( 1971) 258 Or 245,

482 P2d. 184; People of Ore. ex rel. Johnson v. Debt Re- ducers, Inc., ( 1971) 5 Or App 322, 484 P2d 869.

ATTY. GEN. OPINIONS: Licensees with similar business

names, 1950 -52, p 109; legality of distributing a collectionsystem form book, 1950 -52, p 301; board's rule that solicitorbe Oregon resident for one year, 1960 -62, p 62; tithing tothe General Fund, 1962 -64, p 316; legality of unlicensedout -of -state firm advertising in Oregon for debt consolidating business. 196466, p 427.


697.010 to 697.470

ATTY. GEN. OPINIONS: Tithing to the General Fund, 1962 -64, p 316.

697.020

NOTES OF DECISIONS

Subsection ( 4) should be read as exempting the listedpersons and institutions from the necessity of becoming alicensed agency. Beck v. Aichele, ( 1971) 258 Or 245, 482 P2d184.

ATTY. GEN. OPINIONS: Company selling collectionstickers and forms to be used by creditors, as a collectionagency, 194012, p 88; accounting collection system whichcreates impression that third person is hired to collect, as

carrying on collection agency, 1940 -42, p 309; whether associations collecting accounts in Oregon by statements andletters from Chicago signed by the association must belicensed as collection agencies, 1940 -42, p 409; whether asale of accounts wherein the seller retains an interest

renders the buyer a collection agency, 1942 -44, p 58; whethercredit league making collections as accommodation to othercredit leagues or unions without compensation is engaged

in business of a collection agency, 1942 -44, p 257; legalityof distributing a collection system form book, 1950 -52, p301; board's authority as to examination and licensing ofapplicants, 1956 -58, p 61; subsidiary of a bank as a collectionagency, ( 1970) Vol 35, p 87.

697.030

NOTES OF DECISIONS

ORS 697.020(4) should be read as exempting the listedpersons and institutions from the necessity of becoming a

licensed agency. Beck v. Aichele, ( 1971) 258 Or 245, 482 P2d184.

ATTY. GEN. OPINIONS: Subsidiary of a bank as a collection agency, ( 1970) Vol 35, p 87.

697.035

CASE CITATIONS: State v. Horton, ( 1967) 248 Or 141, 432

P2d 518.

ATTY. GEN. OPINIONS: Legality of one licensee operatingtwo different businesses, 1964 -66, p 306.

697.041

ATTY. GEN. OPINIONS: Right of foreign corporations andnonresidents to license, 1940 -42, p 322; board' s rule thatsolicitor be Oregon resident for one year, 1960 -62, p 62.

697.061

ATTY. GEN. OPINIONS: Collection agency as authorizedto do business at one place only, 1938 -40, p 363; eligibilityof more than one partner, or officer or director of a partner-

ship or corporation, to qualify to operate the collectionagency, 1952 -54, p 64.

697. 111

ATTY. GEN. OPINIONS: Board' s authority as to examination and licensing of applicants, 1956 -58, p 61.

697. 120


697. 146

ATTY. GEN. OPINIONS: Board's rule that solicitor be Ore-

gon resident for one year, 1960 -62, p 62.

697. 190

ATTY. GEN. OPINIONS: Responsibility for conduct ofpartnership or corporate licensee, 1952 -54, p 64.

697.230

ATTY. GEN. OPINIONS: Licensees with similar business

names, 1950 -52, p 109.

697.240

ATTY. GEN. OPINIONS: Responsibility for conduct ofpartnership or corporate licensee, 1952 -54, p 64.

720

SUPERSEDED

696.250

697.250

ATTY. GEN. OPINIONS: Failure of agency to account andpay as grounds for suspension or revocation of license, 1942 -44, p 71.

697.261

ATTY. GEN. OPINIONS: Revocation of license on the

ground of an assumed name similar to another firm, 1950 -52,

p 109; licensing a married woman by whom an assumedbusiness name certificate has been filed, in her maiden name

only, under such assumed name, and state license as notissuing to a married woman in any other surname than thatof her husband, 1950 -52, p 375.

697.402

ATTY. GEN. OPINIONS: Qualification as " licensee" of

board member, 1952 -54, p 35.

697.422

ATTY. GEN. OPINIONS: Board' s authority as to examination and licensing of applicants, 1956 -58, p 61.

697.610 to 697.785

NOTES OF DECISIONS

This law in no way affects the law relative to assignmentsfor the benefit of creditors, nor does it affect creditor' s

rights. Hall' s W. Auto Supply Co. v. Brock, ( 1965) 240 Or85, 400 P2d 5; Rodakowski v. Budget Consultants, Inc., 1970) 255 Or 69, 464 P2d 686.

FURTHER CITATIONS: Ferguson v. Skrupa, ( 1963) 372 US

726, 83 S Ct 1028, 10 L Ed 2d 93; People of Oregon ex rel. Johnson v. Debt Reducers, Inc., ( 1971) 5 Or App 322, 484P2d 869.

ATTY. GEN. OPINIONS: Tithing to the General Fund, 1962 -64, p 316.

697.615

ATTY. GEN. OPINIONS: Legality of unlicensed out -of -statefirm advertising in Oregon for debt consolidating business, 1964- 66, p 427.

697.620

ATTY. GEN. OPINIONS: Legality of unlicensed out -of -statefirm advertising in Oregon for debt consolidating business, 1964 -66, p 427.

697.665


697.733


697.780

ATTY. GEN. OPINIONS: Tithing to General Fund, 1962 -64, p 316.

697.785

NOTES OF DECISIONS

This section does not preserve to the Attorney Generalsuch common -law powers as he had with reference to classsuits for damages. People of Oregon ex rel. Johnson v. DebtReducers, Inc., ( 1971) 5 Or App 322, 484 P2d 869.


697.790


697.810

ATTY. GEN. OPINIONS: Authority of commissioner inrespect of denial, suspension, and revocation of licenses,

1934 -36, p 439.

697.990

CASE CITATIONS: Ferguson v. Skrupa, ( 1963) 372 US 726, 83 S Ct 1028, 10 L Ed 2d 93.


697.992

CASE CITATIONS: Ferguson v. Skrupa, ( 1963) 372 US 726, 83 S Ct 1028, 10 L Ed 2d 93.

730

SUPERSEDED

is

Chapter 698

Auctions and Auctioneers

Chapter 698

ATTY. GEN. OPINIONS: Livestock auction- licensees ex-

cepted from general auctioneers' law, 1958 -60, p 84; application to employe auctioning for employer -owner whensales not in regular course of business, 1960 -62, p 84; licenseexamination, 1962 -64, p 183; license required to auction realproperty, 1966 -68, p 582.

698.210 to 698.350

ATTY. GEN. OPINIONS: Alternating auctions between twoplaces of business, 1962 -64, p 278.

698.510 to 698.640


cepted from general auctioneers' law, 1958 -60, p 84; effectof board' s failure to comply with statutory requirementsin passing rules and regulations, 1958 -60, p 230; licensingof corporation, 1960 -62, p 41; application to employe auctioning for employer -owner when sales not in regular courseof business, 1960 -62, p 84; duties of board regarding bonds, 1960 -62, p 390; license examination, 1962 -64, p 183; licenserequired to auction real property, 1966 -68, p 582; duty toobtain license to auction property at Oregon State Fair, 1970) Vol 34, p 952.

698.510

ATTY. GEN. OPINIONS: Corporation as " person," 1960 -62,

p 41; application to employe auctioning for employer -ownerwhen sales not in regular course of business, 1960 -62, p 87; regulations regarding special license, 1960 -62, p 124; alternating auctions between two places of business, 1962 -64, p 278; age requirement for license, 1962 -64, p 431; licenserequired to auction real property, 1966 -68, p 582.

698.520

ATTY. GEN. OPINIONS: Corporation as " person," 1960 -62,

p 41; application to employe auctioning for employer -ownerwhen sales not in regular course of business, 1960 -62, p 87; regulations regarding special license, 1960 -62, p 124; agerequirement for license, 1962 -64, p 431; license required toauction real property, 1966 -68, p 582; duty to obtain licenseto auction property at Oregon State Fair, ( 1970) Vol 34, p 952.

698.530


cepted from general auctioneers' law, 1958 -60, p 84; application to employe auctioning for employer -owner whensales not in regular course of business, 1960 -62, p 87; licenserequired to auction real property, 1966 -68, p 582.

698.540

ATTY. GEN. OPINIONS: Denying license upon proper application, 1958 -60, p 85; corporation as " person," 1960 -62,

p 41; regulations regarding special license, 1960 -62, p 124; license examination, 1962 -64, p 183; age requirement forlicense, 1962 -64, p 431.

698.550

ATTY. GEN. OPINIONS: Authority to prorate annual license fees, 1958 -60, p 395; alternating auctions between twoplaces of business, 1962 -64, p 278.

ATTY. GEN. OPINIONS: Duties of board regarding bonds, 1960 -62, p 390; as relating only to persons applying forlicenses, ( 1970) Vol 34, p 952.

698.710 to 698.770


cepted from general auctioneers' law, 1958 -60, p 84; effectof board' s failure to comply with statutory requirementsin passing rules and regulations, 1958 -60, p 230; licensingof corporation, 1960 -62, p 41; application to employe auctioning for employer -owner when sales not in regular courseof business, 1960 -62, p 84; duties of board regarding bonds, 1960 -62, p 390; license examination, 1962 -64, p 183; licenserequired to auction real property, 1966 -68, p 582.

698.710

A=. GEN. OPINIONS: Members as state officers, 1958 -60,

p 83.

698.730

ATTY. GEN. OPINIONS: Effect of board' s failure to complywith statutory requirements in passing rules and regulations, 1958 -60, p 230; authority to prorate annual licensefees, 1958.60, p 395; regulations regarding special license, 1960 -62, p 124; duties of board regarding bonds, 1960 -62, p 390.

731

SUPERSEDED

Chapter 699

Innkeepers. and Hotelkeepers

69& 010

NOTES OF DECISIONS

The liability of the innkeeper is founded on grounds ofpublic policy. Cook v. Kane, ( 1886) 13 Or 482, 11 P 226.

FURTHER CITATIONS: Jackson v. Steinberg, ( 1949) 186Or 129, 200 P2d 376, 205 P2d 562.

699.030

NOTES OF DECISIONS

Where chambermaid found bills secreted in hotel dresser

drawer by unascertainable guest, innkeeper became involuntary bailee and had no option to refuse to hold the bills. Jackson v. Steinberg, ( 1949) 186 Or 129, 200 P2d 376, 205P2d 562.

Making rbcord of the serial numbers of new bills not

shown to be marked for identification, where bills were

found secreted in hotel dresser by unascertainable guestand later deposited in innkeeper' s private account, was

sufficient to protect the. true owner's interest. Id.

699.050


699.060

ATTY. GEN. OPINIONS: " Motor vehicles" as excludingtransportation with fixed guidance system, ( 1970) Vol 35;

p 198.

699.070

CASE CITATIONS: Libby v. Olcott, ( 1913) 66 Or 124, 134P 13.

732

l u

1 u

SUPERSEDED

C Chapter 706

Application, Administration and Enforcement

of Banking Laws Generally

706. 100

Chapter 706

ATTY. GEN. OPINIONS: Superintendent' s supervisorypowers as incorporated into Industrial Loan Act, 1956 -58,

p 39; regulation of banks as exercise of police power forprotection of public, 1956 -58, p 42; application to employerpension and profit - sharing trusts, 1956 -58, p 251.

is708. 205

706.010

ATTY. GEN. OPINIONS: Unsecured loans by a foreignbank, 1962 -64, p 27; applicability of usury laws to nationalbank's BankAmericard program, 1966 -68, p 160.

706.030

CASE CITATIONS: Sargent v. Ore. Savings & Loan Co.,

1914) 73 Or 99, 144 P 455.

ATTY. GEN. OPINIONS: Corporation issuing travelerschecks, money orders and letters of credit, as engaged inbanking business, 1926 -28, p 178; status of a corporationwhich is engaged in the business of loaning the funds ofthe corporation as a bank, 1928 -30, p 246; savings and loanassociation as a bank, 1940 -42, p 325; activities constitutingbonding business, 1956 -58, p 42; as requiring series of transactions, 1956 -58, p 251.

706.060

CASE CITATIONS: American Trust Co. v. McCallister, 1931) 136 Or 338, 299 P 319.

ATTY. GEN. OPINIONS: Making loans in Oregon on realpropeiiy in Oregon, 1962 -64, p 119.

706.070

CASE CITATIONS: Superior Oil Syndicate v. Handley, 1921) 99 Or 146, 195 P 159.

ATTY. GEN. OPINIONS: Making loans in Oregon on realproperty in Oregon, 1962 -64, p 119; application to foreignbank that only advertises in this state, 1964 -66, p 11.

706. 100

tain a registered office and agent in this state, 1952 - 54, p201.

706. 215


in Department of Commerce, 1964 - 66, p 51; authority ofState Banking Board in fixing superintendent' s salary, 1964 - 66, p 71; use of blanket position bond in lieu of individual surety bond, 1966 - 68, p 83.

706. 410

ATTY. GEN. OPINIONS: Witness fees for state employes,

1948- 50, p 70.

706. 450

ATTY. GEN. OPINIONS: Requirements that statutory feebe charged for each instrument to which Superintendent

of Banks affixes his official seal, 1926 - 28, p 345.

706. 460

ATTY. GEN. OPINIONS: Superintendent' s supervisorypowers as incorporated into Industrial Loan Act, 1956 - 58,

p 39; power to prescribe form for records and accountsshowing assets and liabilities, 1958 - 60, p 116.

706. 500

NOTES OF DECISIONS

A bank examiner does not control a bank' s affairs. Guardian Bldg. & Loan Assn. v. McCallister, ( 1928) 127 Or440, 270 P 478.

ATTY. GEN. OPINIONS: Superintendent' s supervisorypowers as incorporated into Industrial Loan Act, 1956 - 58, p 39; power to prescribe form for records and accountsshowing assets and liabilities, 1958 - 60, p 116.

706. 530

ATTY. GEN. OPINIONS: Fee prescribed by disposition asin addition to annual tax on intangibles, 1928 - 30, p 490.

706. 570

ATTY. GEN. OPINIONS: Reflecting capital borrowings inaccounts, 1958 - 60, p 116.

733

706. 690

ATTY. GEN. OPINIONS: Control by• out - of - state holdingcompany, 1962 - 64, p 248; conditions of approval, 1964 - 66, p 473.

ATTY. GEN. OPINIONS: Filing of articles of incorporationof liquidated bank to transact business as corporation not

including banking business, 1924 -26, p 406; maintenance ofregistered office and agent, 1952 -54, p 201; proposed bankname " deceptively similar" to existing bank name, 1958 -60, p 408.

is708.205

ATTY. GEN. OPINIONS: Duty of banks and trust companies, industrial loan companies and credit unions to main-

tain a registered office and agent in this state, 1952 - 54, p201.

706. 215


in Department of Commerce, 1964 - 66, p 51; authority ofState Banking Board in fixing superintendent' s salary,

1964 - 66, p 71; use of blanket position bond in lieu of individual surety bond, 1966 - 68, p 83.

706. 410

ATTY. GEN. OPINIONS: Witness fees for state employes,

1948- 50, p 70.

706. 450

ATTY. GEN. OPINIONS: Requirements that statutory feebe charged for each instrument to which Superintendent

of Banks affixes his official seal, 1926 - 28, p 345.

706. 460



706. 500

NOTES OF DECISIONS

A bank examiner does not control a bank' s affairs. Guardian Bldg. & Loan Assn. v. McCallister, ( 1928) 127 Or

440, 270 P 478.



706. 530

ATTY. GEN. OPINIONS: Fee prescribed by disposition asin addition to annual tax on intangibles, 1928 - 30, p 490.

706. 570

ATTY. GEN. OPINIONS: Reflecting capital borrowings inaccounts, 1958 - 60, p 116.

733

706. 690

ATTY. GEN. OPINIONS: Control by• out - of - state holdingcompany, 1962 - 64, p 248; conditions of approval, 1964 - 66,

p 473.

SUPERSEDED

706.720

706.720

ATTY. GEN. OPINIONS: Right to examine records con-

cerning banks, 1938 -40, p 177; power to prescribe form forrecords and accounts showing assets and liabilities, 1958 -60, D 116.

734

l u

SUPERSEDED

Chapter 707

Organization of Banks and Trust Companies; General Powers; Stockholders, Directors and Officers

Chapter 707

ATTY. GEN. OPINIONS: Paid -up capital requirements offoreign banks and trust companies, 1952 -54, p 135.

707.010

ATTY. GEN. OPINIONS: Use of words " The Home of the

Calendar Bank," by savings and loan association, 1924 -26, p 330; use of the word " Bankers" as part of the name ofan association, 1930 -32, p 503; use of name " Autobanc, Inc.," 1936 -38, pp 136, 485; title company holding title to realtyfor undisclosed purchaser as engaging in " trust business," 1954 -56, p 115.

707.030

CASE CITATIONS: Pacific Title & Trust Co. v. Sargent,

1914) 73 Or 485, 144 P 452.

ATTY. GEN. OPINIONS: When bank may use the wordtrust" as a part of its corporate name, without qualifying

to do a trust business, 1926 -28, p 243; authority of a nonprofit charitable corporation to act as trustee to carry out itspurposes without compliance with the Bank Act, 1942 -44,

p 55; when corporation authorized to engage in " trust business," 1948 -50, p 434; title company holding title to realtyfor undisclosed purchaser as engaging in " trust business," 1954 -56, p 115.

707.050

ATTY.. GEN. OPINIONS: Paid -up capital requirements offoreign banks and trust companies, 1952 -54, p 135.

707.070

ATTY. GEN. OPINIONS: Residence requirements of direc-

tors of industrial loan corporation, 1962 -64, p 101; limitations on changing bank location and designation as branchor head office, 1966 -68, p 380.

707.080

CASE CITATIONS: Mulkey v. Bennett, ( 1920) 95 Or 70, 186P 1115.

ATTY. GEN. OPINIONS: Establishment of branch banks

in cities with other national or state banks, 1960 -62, p 216; residence requirement of directors of industrial loan corpo-

ration, 1962 -64, p 101; limitations on changing bank locationand designation as branch or head office, 1966 -68, p 380.

707.090


tors of industrial loan corporation, 1962 -64, p 101.

707. 100



707. 110

ATTY. GEN. OPINIONS: Duration of existence of banks,

1926 -28, p 26; duration of bank incorporated in 1902, 1926 -28, p 45; authority of Superintendent of Banks to require inclusion of provision in articles of incorporation of a bank or

industrial loan company, that such corporation shall besubject to laws of the state hereinafter enacted, 1926 -28,

p 451; residence requirements of directors of industrial loancorporation, 1962 -64, p 101.

707. 120

ATTY. GEN. OPINIONS: Time allowed for approval of

supplemental articles of incorporation, 1948 -50, p 133; postponement of effective date of approval, 1948 -50, p 133.

707.140

CASE CITATIONS: Mulkey v. Bennett, ( 1920) 95 Or 70, 186P 1115.



707. 160



707. 180

ATTY. GEN. OPINIONS: Effective date of approval, 1948-

50, p 133; limitations on changing bank location and designation as branch or head office, 1966 -68, p 380.

707.310

CASE CITATIONS: Dunn v. McCoy, ( 1941) 113 F2d 587.

ATTY. GEN. OPINIONS: Statute as prohibiting issuanceand sale of certain instalment bonds by state bank, 1924 -26, p 631; authority of state chartered bank that is a memberof the Federal Reserve System to invest more than 50

percent of its paid up capital and surplus in its bank building, 1950 -52, p 160; residence requirement of directors ofindustrial loan corporation, 1962 -64, p 101; applicability ofusury laws to national bank's BankAmericard program, 1966 -68, p 160.

707.320

NOTES OF DECISIONS

Authority of state - chartered bank that is a member of

735

SUPERSEDED

707.330

the Federal Reserve System to invest more than 50 percent

of its paid -up capital and surplus in its bank building, 1950- 52, p 160.

707.330

NOTES OF DECISIONS

Authority of state - chartered bank that is a member ofthe Federal Reserve System to invest more than 50 percent

of its paid -up capital and surplus in its bank building, 1950- 52, p 160.

707.640

ATTY, GEN. OPINIONS: Eligibility to directorship of person who has taken out first papers, 1924 -26, p 469; residence

requirement of directors of industrial loan corporation,

1962 -64, p 101.

707.650

ATTY. GEN. OPINIONS: Registered former owner as eligi-

ble as director after sale of stock, 193840, p 6; a personowning stock jointly with his son, of the par value of $500, as eligible to be a director of a bank issuing such stock, 1944 -46, p 403.

707.700

ATTY. GEN. OPINIONS: Right of president or other official

of a bank to also be the cashier, 1926 -28, p 427.

736

is

l u

SUPERSEDED

Chapter 708

Regulation of Bank and Trust Company Operations Generally

Chapter 708

ATTY. GEN. OPINIONS: Applicability to title companyacquiring title to realty as " nominee" for undisclosed purchaser, 195456, p 115; superintendent' s supervisory powersas incorporated into Industrial Loan Act, 1956 -58, p 39.

70 &030

ATTY. GEN. OPINIONS: The land and buildings of munici-

pal water systems and electric utility companies and also

their poles and pole lines, dams, reservoirs, rights of way, water rights, pipe lines and distributing lines and transformers ana meters, if permanently attached to the premises, as real estate, 1944 -46, p 305; investment of trust fundsadministered by a trust company or the trust departmentof a commercial bank as governed by the prudent man rulein ORS 128. 020, 1950 -52, p 414.

708.035

ATTY. GEN. OPINIONS: Authority to form a wholly ownedsubsidiary to hold title to bank' premises, 1960 -62, p 117.

708.210

NOTES OF DECISIONS


L ConstitutionalityThis statute is a reasonable exercise of the police power

and the restriction which it imposes upon the charter of

a bank conferring unlimited borrowing and pledging powersupon the latter does not affect the validity of the statute. Schramm v. Bank of Calif., Nat. Assn., ( 1933) 143 Or 546,

20 P2d 1093, 23 P2d 327.

This statute does not impose a personal liability uponthe stockholders nor deprive the corporation of a valuable

vested property right. Id.

2. Applicability and constructionThis statute is applicable to a national bank. Schramm

v. Bank of Calif., Nat. Assn., ( 1933) 143 Or 546, 20 P2d 1093,

23 P2d 327.

The Act, of which this statute is a part, is penal incharacter and restricts common -law rights and therefore

should be strictly construed. Id. Borrowings of a bank within this statute include loans

represented by promissory notes, and payment to it ofoverdrafts upon its account with another bank, but do not

include a transaction whereby another bank is guaranteedto be protected against loss in the drawing of a draft bythe latter for a customer of the former. Id.

3. Purpose

The general purpose of the Act, of which this statute is

a part, is to preserve the assets of the bank free from allliens except the one granted to the depositors, to which

general purpose there are only the specific exceptions

created by this statute and OC 22- 804, 22 -805 and 22 -2001ORS 708.225 and 711. 5151 Schramm v. Bank of Calif., Nat.

Assn., ( 1933) 143 Or 546, 20 P2d 1093, 23 P2d 327.

This statute is an exercise of the police power of the stateintended to promote the public welfare and to protect thedepositors against imposition. Id.

ATTY. GEN. OPINIONS: This section as applicable to• na-

tional banks, 1944 -46, p 234.

708.215

NOTES OF DECISIONS

See cases under ORS 708.210 and 708.220.

708.220

NOTES OF DECISIONS


A pledge to secure a loan in excess of the amount which

the bank is entitled to borrow as provided by this statuteis valid and enforcible. Schramm v. Bank of Calif., Nat.

Assn., ( 1933) 143 Or 546, 20 P2d 1093, 23 P2d 327. A lender to a bank is entitled to payment of its loans

even though they exceed the amount which the bank isentitled ,to borrow under this statute. Id.

The provision as to the total amount of security which

a borrower may pledge under this statute without the banksuperintendent's approval is mandatory and affects thepledge as well as rendering criminal the act of the officialwho made it, but the pledgee is not required to surrender

all of the coliateral which it possesses but only the excessof the statutory limitation. Id.

ATTY. GEN. OPINIONS: Basis upon which the limitation

of collateral pledged by a bank or trust company is to becomputed, 1930 -32, p 531; pledging assets in excess of limitation, as security for a loan from the Reconstruction Fi- nance Corporation, 1934 -36, p 393.


FIT :LAS 1

ATTY. GEN. OPINIONS: Right of bank legally to pledgecollateral in lieu of surety bond given to Superintendentof Banks to secure deposits in various banks, representingmoney belonging to depositors of insolvent banks in liquidation by State Banking Department, 1926 -28, p 439.

NOTES OF DECISIONS

This statute is not applicable' to a continuing bond executed prior to its enactment and the payment of an annual

premium does not have the effect of renewing a bond orre- executing it where the same has not expired, no noticehaving been served by the surety. Schiska v. Schramm, 1935) 151 Or 647, 51 P2d 668.

737

SUPERSEDED

708.255

708.255

ATTY. GEN. OPINIONS: Power of state banks to borrow

money, 1958 -60, p 116; application to mutual savings banks, 1964 -66, p 361.

708.260

ATTY. GEN. OPINIONS: Application to mutual savings

banks, 1964 -66, p 361.

708.265

ATTY. GEN. OPINIONS: Reflecting capital borrowings inaccounts, 1958 -60, p 116; authority of state - chartered mutualsavings bank to issue capital debentures, 1964 -66, p 361.

708.270

ATTY. GEN. OPINIONS: Authority of state - chartered mutual savings bank to issue capital debentures, 1964 -66, p361.

708.275

ATTY. GEN. OPINIONS: Authority of state - chartered mutual savings bank to issue capital debentures, 1964 -66, p361.

708.305

NOTES OF DECISIONS

Equity will not assume jurisdiction of an action to compelthe Superintendent of Banks to return a note given in a

transaction, the effect of which was to enable a bank tomake an excessive loan, in violation of statute. Astoria Nat.

Bank v. State Bank, ( 1924) 109 Or 699, 222 P 588.

ATTY. GEN. OPINIONS: Investment of trust funds admin-

istered by a trust company or the trust department of acommercial bank as governed by the prudent man rule inORS 128.020, 1950 -52, p,414.

70 &310

ATTY. GEN. OPINIONS: Meaning of "obligations" as usedin this section, 1940 -42, p 372.

70 &335

ATTY. GEN. OPINIONS: Stocks and bonds as " other such

documents," 1954 -56, p 86.

708.350

ATTY. GEN. OPINIONS: Default as applying only to particular obligations in which it is proposed to invest funds

of a bank or trust company, 1936 -38, p 196; when exchangeof municipal bonds does not constitute a default of the part

of the municipality, 1936 -38, p 356; limitation on purchaseof peoples' utility district bonds by state banks, 1942114, p 155.

708.360

ATTY. GEN. OPINIONS: Superintendent's supervisorypowers as incorporated into Industrial Loan Act, 1956 -58,

p 39.

70 &365

ATTY. GEN. OPINIONS: Capital and surplus limitations on

bank loans secured by a first lien on real estate, 1942 -44, p 475; land and buildings of municipal water systems andelectric utility companies and also their poles and pole lines, dams, reservoirs, rights of way, water rights, pipe lines anddistributing lines and transformers and meters, if permanently attached to the premises, as real estate, 1944 -46, p305.

70822

ATTY. GEN. OPINIONS: " Days of grace" as allowable in

computing due date of negotiable instrument payable in thisstate wherever same may be drawn, 1924 -26, p 385.

708.395

NOTES OF DECISIONS

An attempted payment for bank stock in realty, not beingwithin the exceptions of the statute, was, unauthorized and

amounted to no payment at all, except to the extent that

the proceeds of the attempted payment went to swell thebank' s assets. Sargent v. Am. Bank & Trust Co., ( 1916) 80

Or 16, 154 P 759, 156 P 431.

ATTY. GEN. OPINIONS: Power of state - chartered bank to

invest in its bank building in excess of 50 percent of itspaid -up capital and surplus, 1950 -52, p 160; restrictions onbank investments, 1958 -60, p 116.

708.400

ATTY. GEN. OPINIONS: Authority of state chartered bankthat is a member of the Federal Reserve System to invest

more than 50 percent of its paid up capital and surplus inits bank building, 1950 -52, p 160; restrictions on bank investments, 1958 -60, p 116; authority to form a wholly ownedsubsidiary to hold title to bank premises, 1960 -62, p 117.

708.410

ATTY. GEN. OPINIONS: Authority to form a wholly ownedsubsidiary to hold title to bank premises, 1960 -62, p 117.

70 &415

ATTY. GEN. OPINIONS: Authority to form a wholly ownedsubsidiary to hold title to bank premises, 1960 -62, p 117.

708.420

ATTY. GEN. OPINIONS: Failure to sell real estate within

time prescribed by ORS 708.410, 1958 -60, p 116.

70 &425

ATTY. GEN. OPINIONS: Investment of trust funds admin-

istered by a trust company or the trust department of acommercial bank as governed by the prudent man rule inORS 128.020, 1950 -52, p 414.

708.430

ATTY. GEN. OPINIONS: Merger of corporation and power

of merging corporation, 1928 -30, p 491; restrictions on bankinvestments, 1958 -60, p 116; authority to form a whollyowned subsidiary to hold title to bank premises, 1960 -62, p 117.

708.435

INOTES OF DECISIONSUnder a former similar statute, an attempted surrender

738

l IJ

SUPERSEDED

of bank stock by a subscriber who had given worthlessassets of another bank in exchange therefor was void, and

did not vest the bank with ownership of the stock surren- dered or give it a right to reissue the same. Sargent v. Am.

Bank & Trust Co., ( 1916) 80 Or 16, 154 P 759, 156 P 431.

Under a former similar statute, the surrender by bankstockholders of their stock was a valid transfer of their

stock, where the bank did not permanently retire such stockupon its surrender, but subsequently reissued it and soldit to other persons. Sargent v. Waterbury, ( 1917) 83 Or 159, 161 P 443, 163 P 416.

Under a former similar statute, since the provision was

copied from the federal bankruptcy Act, decisions of thefederal court construing the latter Act, to the effect thatonly the sovereign can take advantage of a violation ofthe provisions, were also adopted. Consequently, a statebank which received its own stock as collateral for a pre-

existing debt could enforce its lien as against subsequentlienholders, though it delayed disposing of the collateralmore than six months. Columbia Rock Co. v. Hibernia Say.

Bank, ( 1917) 86 Or 536, 169 P 88.

708.440

ATTY. GEN. OPINIONS: Application to loan by nationalbank, 1964 -66, p 473.

708.480

ATTY. GEN. OPINIONS: Applicability of usury laws tonational bank's BankAmericard program, 1966 -68, p 160.

708.505

ATTY. GEN. OPINIONS: Right of parent to set off a givendebt from him to bank of deposit of his minor child, 1928 -30,

p 287.

708.515

NOTES OF DECISIONS

A joint bank account, deposits in which are payable to

either of the parties thereto or the survivor in case of deathof either in accordance with an agreement with the bank, is contractual. In re Edwards' Estate, ( 1932) 140 Or 431, 14

P2d 274.

This statute is for the protection of the bank and does

not protect one who makes withdrawals contrary to amutual agreement between joint depositors. Lay v. Proctor, 1934) 147 Or 545, 34 P2d 331.

An estate by entirety in a bank account cannot he created. Holman v. Mays, ( 1936) 154 Or 241, 59 P2d 392.

The deceased' s interest in a joint deposit is taxable under

the state inheritance tax laws. Id.

708.605

A withdrawal by one codepositor of a joint bank accountwithout the consent of the other does not effect a severance

of the joint tenancy, but results only in a change in theform of the deposit while its joint character and the rights

therein remain unaltered. State Land Bd. v. Gralewski Es- tate, ( 1945) 176 Or 448, 159 P2d 211.

FURTHER CITATIONS: Beach v. Holland, ( 1943) 172 Or396, 142 P2d 990, 149 ALR 866.

ATTY. GEN. OPINIONS: When joint bank account taxable

for inheritance, 193436, p 653.

708.525

NOTES OF DECISIONS

This section is not restricted to attachment and garnish-

ment proceedings but is applicable in all cases when an

adverse claim to a deposit is made. Phil Grossmayer Co. v. Campbell, ( 1958) 214 Or 265, 328 P2d 320.

In the absence of fraud, collusion or bad faith, where the

garnishee bank did not know that the bank account, al-

though in the name of a dissolved corporation, was actuallythat of the defendant, and plaintiff failed to procure a

restraining order or to execute a bond, the bank was notliable for honoring a check drawn by defendant on thisaccount after notice of garnishment. Id.

708.530

NOTES OF DECISIONS

The president of a bank cannot withdraw the money ofa depositor without his authority, and the bank is liablefor his wrongful act in doing so. De War v. First Nat. Bankof Roseburg, ( 1918) 88 Or 541, 171 P 1106.

Where a bank president is authorized by a depositor towithdraw and invest the latter's money, an action may notbe maintained against the bank for the deposit. Id.

708.555

ATTY. GEN. OPINIONS: Right of payee to set off dishon-

ored certified check against debt of payee to certifyingbank, 1928 -30, p 284.


708.605

ATTY. GEN. OPINIONS: Duty and authority of Superin- tendent of' Banks in connection with sale of real propertyby state bank operating under restriction, 1934 -36, p 587.

739

SUPERSEDED

Chapter 709

Regulation of Trust Business

Chapter 709

ATTY. GEN. OPINIONS: Transaction of trust business byforeign insurance company, 1950 -52, p 192; applicability totitle company acquiring title to realty as " nominee" forundisclosed purchaser, 1954 -56, p 115; superintendent's supervisory powers as incorporated into Industrial Loan Act, 1956 -58, p 39.

709.010

ATTY. GEN. OPINIONS: Use of " trust" or " trustee" inarticles of incorporation of general business corporation,

1948 -50, p 434; title company holding title to realty forundisclosed purchaser as engaging in " trust business," 1954 -56, p 115; applicability. of Bank Act to. trustee of employer pension and profitsharing trust, 1956 -58, p 251.

709.020

NOTES OF DECISIONS

A corporation, organized prior to 1913, which had not

made the deposit required by ORS 709.030, was not a trustcompany, within the meaning of this section, although itwas authorized by its charter to perform a trust business. American Trust Co. v. McCallister, ( 1931) 136 Or 338, 299P 319.

FURTHER CITATIONS: Pacific Title & Trust Co. v. Sar-

gent, ( 1914) 73 Or 485, 144 P 452.

ATTY. GEN. OPINIONS: Corporation authorized to trans-

act trust business at time statute was passed as not beingsubject to statute, 1924 -26, p 507; supplemental articles ofincorporation of title and investment company submittedto include the word " trust" in corporate name, 1930 -32, p178; a general corporation authorized to do a trust business

and incorporated before 1913 as subject to the jurisdiction

of the Superintendent of Banks in matters relating to itstrust business, 1944 -46, p 480; applicability of Bank Act totrustee of employer pension and profit - sharing trust, 1956- 58, p 251.

709.050

NOTES OF DECISIONS

A general corporation, although empowered to do a trust

business is not a " trust company," which is exempt fromthe statutory provision requiring it to obtain a permit fora sale of its stock. American Trust Co. v. McCallister, (1931) 136 Or 338, 299 P 319.

ATTY. GEN. OPINIONS: Custody and safe guarding ofsecurities deposited, 1928 -30, p 592; deposit' of securities asdisbursable only upon court order, deposit as a trust fund, 1934 -36, p 52; construing this section with OC 22. 1203 and22 -1204 [ ORS 709.060 and 709.070], 1934 -36, p 53; as requirement for foreign trust company to do business in Oregon, 1952 -54, p 135.

709. 150

NOTES OF DECISIONS

Syndicate for making brick and refining petroleum, organized under the laws of another state, seeking a permit tosell its capital shares or certificates, receiving funds thereforto invest in property which the association shall hold intrust for its shareholders was a foreign trust company. Superior Oil Syndicate v. Handley, ( 1921) 99 Or 146, 195P 159.

A general corporation empowered to do a trust business

is not necessarily a trust company within the meaning ofthis section and -OC. 22 -1213 [ ORS 709.030]. American Trust

Co. v. McCallister, ( 1931) 136 Or 338, 299 P 319.

ATTY. GEN. OPINIONS: The Cando Trust as doing a trustbusiness and required to comply with the trust laws, 1936- 38, p 67; use of " trust" or " trustee" in articles of incorporation of general business corporation, 1948 -50, p 434; titlecompany holding title to realty for undisclosed purchaseras engaging in " trust business," 1954 -56, p 115; applicabilityof Bank Act to trustee of employer pension and pro-

fit- sharing trust, 1956 -58, p 251.


709.300

ATTY. GEN. OPINIONS: Power of a national bank to transact a trust business pursuant to permit from a Federal

Reserve Board under Act of Congress, 1926 -28, p 29; purposeas to prevent foreign banks from engaging in general trustbusiness in Oregon, ( 1970) Vol 35, p 279.

709.310

ATTY. GEN. OPINIONS: Authority of Superintendent ofBanks to release securities deposited under statute, 1934 -36,

pp 50, 680.

709.390

ATTY. GEN. OPINIONS: Necessity of court order for release of securities, 193436, p 680.

740

SUPERSEDED

J

Chapter 711

Merger and Conversion; Reorganization;

Liquidation; Insolvency

Chapter 711

AM. GEN. OPINIONS: Banks' power of merger, 1958 -60, p 208; authority to refuse to file merger documents whenname is " deceptively similar," 1958 -60, p 408.

711.005 to 711.060

ATTY. GEN. OPINIONS: Effect of bank merger law on

branch banking law, 1960 -62, p 73.

711.020

AM. GEN. OPINIONS: Authority to refuse to file mergerdocuments when name is " deceptively similar," 1958 -60, p408; effect of bank merger law on branch banking law, 1960 -62, p 73.

711. 030

AM. GEN. OPINIONS: Authority to refuse to file mergerdocuments when name is " deceptively similar," 1958 -60, p408.

711. 115

AM. GEN. OPINIONS: Effect of depositors' waiver

agreements in connection with reorganization of bank,

1932 -34, p 649.

711.225


711.250

NOTES OF DECISIONS

A bank retained its corporate existence for' the purpose

of enabling it to liquidate a residue which consisted of theremaining assets which were delivered to a bank' s liquidating committee after the Superintendent of Banks had liquidated enough of the corporate assets to pay depositors infull. Bank of Commerce v. Ryan, ( 1937) 157 Or 231, 69 P2d964.

AM. GEN. OPINIONS: Condition under which banks and

trust companies are dissolved by force of statute, 1928 -30, p 253.

711. 305

NOTES OF DECISIONS `-

The object and the purpose of this statutory requirementis the protection of the-public in dealieg' with the banks. Skinner v. Rich, ( 1936) 153 Or 416, 55 P2d 1146.

711. 310

CASE CITATIONS: Harrison v: Skinner, ( 1939) 160 Or 43, 83 P2d 437.

AM. GEN. OPINIONS: Procedure where capital of bank

becomes impaired, 1926 -28, p 546.

711. 315

ATTY. GEN. OPINIONS: Effect of sale of pledged bank

stock for failure of owner to pay assessment, 1924 -26, p356.


711.410


711A15

AM. GEN. OPINIONS: Section as applying to officers ofnational banks, 1926 -28, p 312.

711. 425

NOTES OF DECISIONS

Under a former similar statute, the voluntary transfer ofa. bank and its property to .the Superintendent of Banksand the submission thereof to his administration in liquidation and disposition of the proceeds was in substance put-

ting " a receiver or trustee" in charge within the meaningof the Bankruptcy Act. Bramwell v. United States Fid. & Guar. Co., ( 1924) 299 Fed 705, afrd, 269 US 483, 46 S Ct

176, 70 L Ed 368; United States v. Adams, ( 1925) 9 F2d 624.

FURTHER CITATIONS: United States Fid. & Guar. Co. v.

Bramwell, (1923) 108 Or 261, 217 P 332, 32 ALR 829; Harrisonv. Skinner, ( 1939) 160 Or 43, 83 P2d 437.

711. 450

NOTES OF DECISIONSThe state superintendent' s duties are the same as those

of a trustee having legal title of property for the purposeof converting it into money to be paid over to specifiedpersons. Old First Nat. Bank & Trust Co. v. Barrett, ( 1936)

14 F Supp 778.

711.435

CASE CITATIONS: Harrison v. Skinner, ( 1939) 160 Or 43,

83 P2d 437.

AM. GEN. OPINIONS: Right of Superintendent of Banksto a loan from Reconstruction Finance Corporation to preserve assets and business of banks under his control, 1930- 32, p 576.

741

SUPERSEDED

711. 460

711.460

ATTY. GEN. OPINIONS: Sufficiency of bond submitted forapproval, 1966 -68, p 83.

711. 480

CASE CITATIONS: Sargent v. Am. Bank & Trust Co., ( 1916)

80 Or 16, 26, 154 P 759, 156 P 431.

711. 495

CASE CITATIONS: Sargent v. Am. Bank & Trust Co., (1916) 80 Or 16, 154 P 759, 156 P 431.

711.510

NOTES OF DECISIONS

In the liquidation of an insolvent bank, the Superinten- dent of Banks acts as trustee for the creditors and stockholders of the bank. Skinner v. Davis, ( 1937) 156 Or 174,

67 P2d 176.

In view of this provision, action may not be maintainedagainst the Superintendent of Banks for the recovery ofan alleged trust fund without first filing a claim with thesuperintendent. Harrisburg Nat. Bank v. Skinner, (1937) 157Or 569, 73 P2d 363.

ATTY. GEN. OPINIONS: Authority of superintendent inconnection with deposits of funds of bank in process of

liquidation and acceptance of security from depositories, 1934 -36, p 582; authority of superintendent to pay interestof funds of private depositors or payments that come intohis hands in the course of liquidation of a bank, 1932 -34,

p 597.

711. 515

NOTES OF DECISIONS

The beneficiary of funds held in trust by an insolventbank is not deprived by' this statute of the right to enforcea trust against the insolvent bank' s fund. American Can

Co. v. Schramm, ( 1931) 137 Or 328, 2 P2d 924.

The purpose of the Bank Act, of which this section isa part, is, with certain specific exceptions, to preserve theassets of banks free from all liens except the one granted

to the depositors. Schramm v. Bank of Calif., Nat. Assn.,

1933) 143 Or 546, 20 P2d 1093, 23 P2d 327.

A bailor of property delivered to a bank for safe keepingis not a depositor. Beck v. Junction City State Bank, ( 1935) 149 Or 352, 37 P2d 1089, 40 P2d 1017.

This section was not intended to provide an exclusive

remedy for the recovery of trust funds when the funds ofan insolvent bank have passed into the hands of the Su-

perintendent of Banks. Id. Distinguished In Harrisburg Nat. Bank v. Skinner, ( 1937) 157 Or 569, 73 P2d 363.

The remedies prescribed by OC 22 -2009 [ ORS 711. 530 to711. 5701 in favor of persons having claims against an insolvent bank which has passed into the hands of the superin-

tendent are exclusive. Harrisburg Nat. Bank v. Skinner, 1937) 157 Or 569, 73 P2d 363.

ATTY. GEN. OPINIONS: Claims of states and municipal

corporations against insolvent banks, 1930 -32, p 450; gamelicense fund in an insolvent bank as a trust fund, 1930 -32,

p 663; owners of fund held by bank as administrator, executor or trustee, and deposited in its own banking department, as entitled to preference in case of insolvency, 193436, p287.

711.520

ATTY. GEN. OPINIONS: Order in which proceeds of insol-

vent bank are to be applied as to depositors and other

claimants, 1920 -22, p 632; right to set off deposit againstnote which is secured by collateral, 1928 -30, p 270; preferredclaim of Veterans' State Aid Commission against insolvent

bank for money deposited with it in escrow, 1934 -36, p 182; owners of fund held by bank as administrator, executor ortrustee, and deposited in its own banking department, asentitled to preference in case of insolvency, 193436, p 287.

711. 525

NOTES OF DECISIONS

Interest is not allowable on noninterest-bea ring accountsafter a bank is placed in the hands of a Superintendent

of Banks for liquidation. Ledford v. Skinner, ( 1937) 156 Or651, 69 P2d 519.

By this section the legislature intended to and did enactan administrative law restricted to cases of insolvency, andfurther restricted the section under consideration to inter-

est- bearing deposits only. Jones v. Skinner, ( 1938) 159 Or325, 80 P2d 60.

This section, both originally and as amended, treats onlyof interest - bearing deposits in insolvent banks, that is, ofthose deposits which bear interest by the express terms ofthe contract of deposit or by reason of statutory provisionsapplicable to specific deposits. Id.

This section does not preclude payment of interest on

either interest - bearing or noninterest- bearing depositswhere a surplus remains over and above the amounts nec-

essary to pay all creditors in full. Id.

ATTY. GEN. OPINIONS: Effect of this statute on state

deposits in national banks, 1932 -34, p 191.

711. 530

NOTES OF DECISIONSThe published notice is for the benefit of persons whose

status as creditors may not be discovered by a mere inspection of the books. Harrisburg Nat. Bank v. Skinner, ( 1937) 157 Or 569, 73 132d 363.

711. 535

NOTES OF DECISIONS

In order to recover personal property from an insolventbank which has been delivered to it as bailee for safe keeping, it is not necessary to file a claim with the Superinten- dent of Banks within the meaning of OC 22 -2009 [ ORS711. 530 to 711. 5701. Beck v. Junction City State Bank, ( 1935) 149 Or 352, 37 P2d 1089, 40 P2d 1017.

A claim for money held in trust, which money was com- mingled with bank's own funds, may not be maintainedwhere the claimant has not filed a claim with the Superin-

tendent of Banks within the required time. Harrisburg Nat. Bank v. Skinner, ( 1937) 157 Or 569, 73 P2d 363.

711. 540

NOTES OF DECISIONS

The presentation of a claim to the Superintendent of

Banks for approval or rejection is a condition precedent

to the creditor's right thereafter to maintain any action

thereon, but the filing within the prescribed period of adepositor's claim is not a condition precedent to recovery, where assets remain applicable to such claim. HarrisburgNat. Bank v. Skinner, ( 1937) 157 Or 569, 73 P2d 363.

It is doubtful if the Superintendent of Banks under any

742

J

SUPERSEDED

circumstances has authority to waive the timely filing ofclaims. Id.

711. 555

NOTES OF DECISIONS

Where the Superintendent of Banks in control of an

insolvent bank fails and refuses to deliver to the owner

property held by the bank as bailee, ORS 711. 530 to 711. 570do not protect him against an action for claim and deliveryby the owner of such property nor do they limit the timeat which such action may be brought for the recoverythereof. Beck v. Junction City State Bank, ( 1935) 149 Or352, 37 P2d 1089, 40 P2d 1017.

The remedies prescribed by ORS 711. 530 to 711. 570 infavor of persons having claims against an insolvent bankwhich has passed into the hands of the Superintendent of

Banks are exclusive. Harrisburg Nat. Bank v. Skinner, (1937) 157 Or 569, 73 P2d 363.

711. 565

NOTES OF DECISIONS

The superintendent may allow claims of depositors, andpossibly of other general creditors, after the expiration of

the time fixed in the notice. Harrisburg Nat. Bank v. Skin- ner, ( 1937) 157 Or 569, 73 P2d' 363.

711. 580

NOTES OF DECISIONS

In view of this statute a person attempting to recoverpersonal property from an insolvent bank which has beendelivered' to the bank as bailee for safe keeping is notrequired to comply with OC 22 -2009 [ ORS 711. 530 to711. 5701 Beck v. Junction City State Bank, ( 1935) 149 Or352, 37 P2d 1089, 40 P2d 1017.

The owner of property bailed as provided in this statuteis not foreclosed of his right to recover possession thereof

because of the absence of any notice from the Superinten- dent of Banks as provided by the statute. Id.

This statute is not limited to those cases where the rec-

ords of, the bank affirmatively show that the bank is notthe owner of the securities in question. Id.

743

711. 610

ATTY. GEN. OPINIONS: Items deductible as necessaryexpenses of Superintendent of Banks in sale of unclaimed

articles, 1944 -46, p 219.

711. 585

NOTES OF DECISIONSThis section is invalid in so far as it permits noncontri-

buting stockholders to share in the sums paid by those whohave met their assessments. Harrison v. Skinner, (1939) 160

Or 43, 83 P2d 437.

The.validity of an assessment against stockholders of aninsolvent bank is not affected by the alleged invalidity ofthis section. Id.

711.590

ATTY. GEN. OPINIONS: Correction of small overdraft in

special dividend account of the Superintendent of Banks,

1940 -42, p 302.

711. 600

ATTY. GEN. OPINIONS: Authority of Superintendent ofBanks to employ counsel for liquidation proceedings inconnection with insolvent bank, 1926 -28, p 320; salaries andcompensation of employes of the State Banking Departmentas chargeable against estate of insolvent banks and trustcompanies in proportion to amount of expenses incurred

in behalf of them, 1926 -28, p 557; acceptance of employmentas attorney to assist in liquidation as vacating membershipin legislature, 1936 -38, p 149.

711.605

CASE CITATIONS: Re Astoria Savings Bank, ( 1932) 139

Or 573, 11 P2d 1062.

711.610 -

CASE CITATIONS: Breese v. Bramwell, ( 1924) 110 Or 105,

223 P 239.

SUPERSEDED

Chapter 713

Foreign Banks and Trust Companies

Chapter 713

ATTY. GEN. OPINIONS: Unsecured loans by a foreignbank, 1962 -64, p 27; application to foreign bank that onlyadvertises in this state, 1964 -66, p 11.

713.010

CASE CITATIONS: Fidelity Trust Co. v. Wash. -Ore. Corp., 1914) 217 Fed 588.

ATTY. GEN. OPINIONS: Trust law as applicable to corpo-

ration filing the resolution declaring its intention to confineits business to loaning of money on mortgage security, 1924 -26, p 257; foreign bank or trust company acting astrustee for an issue of bonds in this state, as within statute,

1924 -26, p 372; duty of consolidated bank to qualify inaccordance with law before it can legally transact a limitedtrust business, 1926 -28, p 593; filing of consolidation agreement by foreign corporation, as qualifying consolidatedcompany, under the laws of Oregon, 1928 -30, p 336; stepsnecessary in order to qualify a foreign trust company toact as executor or trustee under the will of a resident of

Oregon, 1928 -30, p 529; the Cando Trust as doing a trustbusiness and required to comply with the trust laws, 1936- 38, p 67; paid -up capital requirements of foreign banks andtrust companies, 1952 -54, p 135; unsecured loans by a foreign bank, 1962 -64, p 27; application to foreign bank thatonly advertises in this state, 1964 -66, p 11; noncommercialactivities and subsection ( 2), ( 1970) Vol 35, p 279.

713.020

ATTY. GEN. OPINIONS: Duty of banks and trust compa-

nies, industrial loan companies and credit unions to main-

tain a registered office and agent in this state, 1952 -54, p201.

713.030

ATTY: GEN. OPINIONS: Paid -up capital requirements offoreign banks and trust companies, 1952 -54, p 135.

713.050

AM. GEN. OPINIONS: Paid -up capital requirements offoreign banks and trust companies, 1952 -54, p 135.

713.070

ATTY. GEN. OPINIONS:.Authority to make loans prior to1931 amendment, 1928 -30, p 504; loans by foreign bankssecured by Oregon real estate, 1960 -82, p 459; unsecuredloans by a. foreign bank, 1962 -64, p 27.

713.0s0

NOTES OF DECISIONS

Under a former similar statute, a syndicate for makingbrick and refining petroleum, organized under the laws ofanother state, seeking permit to sell its capital shares orcertificates, receiving funds therefor to invest in propertywhich the association shall hold in trust for its shareholders,

was a foreign trust company. Superior Oil Syndicate v. Handley, ( 1921) 99 Or 146, 195 P 159.

744

SUPERSEDED

is

Chapter 714

Branch Banking

Chapter 714

NOTES OF DECISIONS

A branch bank was a separate entity for purposes ofdetermining holder in due course. United States Nat. Bankv. Stonebrink, ( 1954) 200 Or 176, 265 P2d 238.

ATTY. GEN. OPINIONS: Right of state bank to establish

a branch in a city with less than 50,000 population, 1950 -52, p 77; application of this chapter to bank merger, 1960 -62, p 73; foreign bank that limits Oregon business to makingmortgage loans, unsecured loans by a foreign bank, 1962 -64, p 27; authority of union to have branch offices, ( 1968) Vol34, p 35.

714.010

ATTY. GEN. OPINIONS: Branch bank qualifications as

depository, 1960 -62, p 417; unsecured loans by a foreignbank, 1962 -64, p 27; limitations on changing bank locationand designation as branch or head office, 1966 -68, p 380.

714.020

ATTY. GEN. OPINIONS: Authority of industrial loan companies to establish branches, 1940 -42, p 537; right of statebank to establish a branch in a city with less than 50,000population, 1950 -52, p 77; effect of bank merger law on thissection, 1960 -62, p 73; branch bank qualifications as depository, 1960 -62, p 417; limitation on establishing a branch ofa national bank, 1964 -66, p 43.

714.030

ATTY. GEN. OPINIONS: Unsecured loans by a foreignbank, 1962-64, p 27.

714.040

ATTY. GEN. OPINIONS: Time allowed for approval of

supplemental articles of incorporation, 1948 -50, p 133; theeffect of the Superintendent of Banks' investigation and

approval or disapproval of national banks seeking to establish a branch, 1950 -52, p 75.

745

714.050

ATTY. GEN. OPINIONS: Right of state bank to establish

a branch in a city with less than 50,000 population, 1950 -52, pp 75, 77; merger as a taking over, 1960 -62, p 73; establishment of branch banks in cities with other national or state

banks, 1960 -62, p 216; construing " last federal census," 196466, p 12; limitation on establishing a branch of a national bank, 196466, p 43; limitations on changing banklocation and designation as branch or head office, 1966 -68,

p 380.

714.060

ATTY. GEN. OPINIONS: Amount of paid -up cash capitalrequired, 1938 -40, p 751; right of state bank to establish abranch in a city with less than 50,000 population, 1950 -52, p 77; effect of bank merger law on this section, 1960 -62, p 73; establishment of branch blinks in cities with othernational or state banks, 1960 -62, p 216; branch office asdistinct corporation, 1960 -62, p 417.

714.070

ATTY. GEN. OPINIONS: Time allowed for approval ofsupplemental articles of incorporation, postponement of

effective date of approval, 1948 -50, p 133; branch office asdistinct corporation, 1980 -62, p 417.

714.080

ATTY. GEN. OPINIONS: Branch office as distinct corpora-

tion, 1960 -62, p 417.

714. 100

ATTY. GEN. OPINIONS: As eliminating deception, 1958 -60, p 408.

714. 130

ATTY. GEN. OPINIONS: Branch office as distinct corpora-

tion, 1960 -62, p 417.

714.890

CASE CITATIONS: State v. Johnson, ( 1969) 1 Or App 363, 462 P2d 687. SUPERSEDED

Chapter 715

Corporations Controlling Banks

Chapter 715

ATTY. GEN.' OPIMONS: Out -of -state bank holding companies acquiring shares or assets of Oregon banks, 1962 -64, p 248.

715.010

ATTY. GEN. OPINIONS: Control by out -of -state holdingCompany, 1962 -64, p 248.

715.990

CASE CITATIONS: State v. Johnson, ( 1969) -I Or App 363, 462 P2d 687.

7.46

J

SUPERSEDED

Chapter 716

Mutual Savings Banks

Chapter 716

ATTY. GEN. OPINIONS: Mutual savings bank power to

incur long -term debt, 1964 -66, p 361.

716.060

CASE CITATIONS: Oregon Mut. Say. Bank v. State TaxComm., ( 1965) 2 OTR 124.

ATTY. GEN. OPINIONS: Liability of depositors of a mutualsavings bank for an assessment in case of failure or disso-

lution of the bank, 194446, p 412.

716.070

ATTY. GEN. OPINIONS: Right of surety company whichhas become a surety on the bond of a mutual savings bankto terminate its liability and cancel its undertaking, 1932 -34, p 530; right of surety company to cancel bond given underthe provisions, 1932 -34, p 679; authority of Superintendent

is of Banks to execute relief or cancellation of bond furnished

by mutual savings banks, 193436, p 149.

716.410

CASE CITATIONS: Oregon Mut. Say. Bank v. State Tax

Comm., ( 1965) 2 OTR 124.

716.470


716.610

ATTY. GEN. OPINIONS: Sufficiency of bylaws of mutualsavings banks, 1930 -32, p 406; authority of mutual savingsbanks to make gifts or donations to charities, 1944 -46, p

268; application of ORS 708.255 et seq. to mutual savingsbanks, 1964 -66, p 361.

716.640


Comm., ( 1965) 2 OTR 124.

716.720

ATTY. GEN. OPINIONS: " Good cause" for pay out on nopass book account, ( 1969) Vol 34, p 640.

716.750

CASE CITATIONS: Beach v. Holland, ( 1943) 172 Or 396,

142 P2d 990, 149 ALR 866.


716.770


716.780


716.800


716.830


Comm., ( 1965) 2 OTR 124.

747

SUPERSEDED

l/ u

748

SUPERSEDED

Chapter 721

Savings and Loan Supervisor

Chapter 721

ATPY. GEN. OPINIONS: Compliance as prerequisite to

doing of business by foreign savings and loan association, 1960 -62, p 143; applicability to foreign federal savings andloan association, 1962 -64, p 150.

721. 020

CASE CITATIONS: Gallegos v. Smith, ( 1940) 111 172d 805.

721. 030

ATfY. GEN. OPINIONS: Practice of using blanket bonds, 1966- 68, p 83.

721. 050

ATIY. GEN. OPINIONS: Liability of supervisor for disclos- ing information concerning a building and loan associationto a private person, 1930 -32, p 204; giving of informationby supervisors regarding business affairs of a savings andloan association to an investor, 1930 -32, p 218.

749

SUPERSEDED

Chapter 722

Loan Associations

Chapter 722

ATTY. GEN. OPINIONS: Using funds paid in on subscriptions to reserve fund stock to pay operating expenses, 1956 -58, p 310; advertising as transaction of business in thisstate by a foreign corporation, 1960 -62, p 143; incorporationand capitalization of association, 1962 -64, p 38; applicabilityto foreign federal associations, 1962 -64, p 150; regulationof funds of county central committee; 1962 -64, p 219; mortgage investments by a foreign association as " doing business" in Oregon, 1966 -68, p 322.

722.005

ATTY. GEN. OPINIONS: Reserve fund as nonwithdrawable

fixed amount for payment of obligations, 1956 -58, p 310; basis for issuing stock dividends, 1962 -64, p 38; authorityto invest funds in savings and loan associations, ( 1971) Vol

35, p 493.

722.010

ATTY. GEN. OPINIONS: Advertising as transaction ofbusiness in this state by a foreign association, 1960 -62, p143.

722.020


fixed amount for payment of obligations, 1956 -58, p 310; advertising as transaction of business in this state by aforeign association, 1960 -62, p 143; mortgage investmentsby a foreign association as " doing business" in Oregon, 1966 -68, p 372; authority to invest funds in savings and loanassociations, ( 1971) Vol 35, p 493.

722.030

ATTY. GEN. OPINIONS: Incorporation and capitalization

of association, 1962 -64, p 38; purpose of regulations, 1966 -68, p 372.

722.035

ATTY. GEN. OPINIONS: Basis for issuing dividends, 1962- 64, p 38.

722.040

ATTY. GEN. OPINIONS: Using funds paid in on subscriptions to reserve fund stock to pay operating expenses, 1956 -58, p 310; basis for paying cash dividends, 1962 -64, p38; purpose of regulations, 1966 -68, p 372.

722.055

AM. GEN. OPINIONS: Purpose of regulations, 1966 -68,

p 372.

722.065

ATTY. GEN. OPINIONS: Invalidity of certificate of incorporation of association upon-failure to commence business,

1930 -32, p 394.

722. 105_

ATTY. GEN. OPINIONS: Basis for issuing stock dividends, 1962 -64, p 38; mortgage investments by a foreign associationas " doing business" in Oregon, _purpose of regulations, 1966 -68, p 372.

722. 145

ATTY. GEN. OPINIONS: Basis for paying cash dividends, 1962 -64, p 38.

722. 150

NOTES OF DECISIONS

Statutory reserve requirement to do business does notalone justify reserve under tax law. Equitable Say. & Loan

Assn. v. State Tax Comm., ( 1967) 3 OTR 1, affd, 251 Or

70, 444 P2d 916.


fixed amount for payment of obligations, 1956 -58, p 310; basis for issuing dividends, 1962 -64, p 38.

722. 155

ATTY. GEN. OPINIONS: Money derived from sale of reserve fund stock as available for payment of dividends,

1930 -32, p 301; basis for paying cash dividends, 1962 -64, p38.

722. 190

ATTY. GEN. OPINIONS: Fee on fractional amounts be-

tween two and three million dollars of assets, 1930 -32, p260; foreign association fee as based on amount of assets

in state, 1930 -32, p 395; license fee of foreign association, 1930 -32, p 690; annual fees and taxes for credit unions, 1958 -60, p 193.

722.240


722.310

ATTY. GEN. OPINIONS: Meaning of " reserve fund stock," 1956 -58, p 310; basis for issuing stock dividends, 1962 -64, p 38.

750

r

is

SUPERSEDED

r

722.315

CASE CITATIONS: Andrews v. Hochmuth, ( 1969) 253 Or

313, 454 P2d 636.

722.330

ATTY. GEN. OPINIONS: Investments by trust companies, 1940 -42, p 324; investing county central committee funds, 1962 -64, p 219.

722.350


722.370

CASE CITATIONS: Guardian Bldg. & Loan Assn. v. Mc-

Callister, (1928) 127 Or 440, 270 P 478; Mott v. Western Say.

Loan Assn., ( 1933) 142 Or 344, 20 P2d 236.

ATTY. GEN. OPINIONS: Authority of association to investfunds and ignore matured withdrawal notices, 1930 -32, p275; waiver of rights to withdrawal notice with respect to

juvenile shares or obligations, 1930 -32, p 524; issuance ofdemand securities for public funds, 1962 -64, p 197; authorityto invest funds in savings and loan associations, ( 1971) Vol

35, p 493.

722.410

ATTY. GEN. OPINIONS: Purchase of mortgages from other

building and loan associations, 1930 -32, p 275.

722.430

NOTES OF DECISIONS

An obligation for an association's business location which

will require the expenditure of more than 10 percent of the

association' s net assets, whether presently made or to bedischarged partly in the future, is prohibited by this section. State Say. & Loan Assn. v. Bryant, ( 1938) 159 Or 601, 81

P2d 116.

The provision against use of more than 10 percent of net

assets in acquiring real estate for its business location applies to purchase of a leasehold as well as a freehold. Id.

This section did not change the interpretation which

theretofor had been placed upon the statute which it super -

seded. Id.

722.450

CASE CITATIONS: Washington Nat. Bldg., Loan & Inv.

Assn. v. Stanley, ( 1900) 38 Or 319, 63 P 489, 84 Am St Rep793, 58 LRA 816; Western Loan & Say. Co. v. Houston,

1900) 38 Or 377, 65 P 611; Prudential Say. & Loan Assn.

v. Stevens, ( 1933) 144 Or 298, 14 P2d 296, 23 P2d 901.

722.460

CASE CITATIONS: Washington Nat. Bldg. Loan & Inv.

Assn. v. Stanley, ( 1900) 38 Or 319, 63 P 489, 84 Am St Rep793, 58 LRA 816; Western Loan & Say. Co. v. Houston,

1900) 38 Or 377, 65 P 611; Prudential Say. & Loan Assn.

v. Stevens, ( 1933) 144 Or 298, 14 P2d 296, 23 P2d 901.

722.605


751

722. 805

722.720

ATTY. GEN. OPINIONS: Meaning of " reserve fund stock," 1956 -58, p 310.

722.725

ATTY. GEN. OPINIONS: Dues or payments to commissioner as subject to same action as other moneys of associ-

ation upon liquidation, 1930 -32, p 247; commissioner's authority to delegate to private citizen or groups thereof theadministration and conduct of the affairs of an insolvent

association, 1934 -36, p 449; reserve fund as nonwithdrawable fixed amount for payment of obligations, 1956 -58, p310.

722.740


722.745

NOTES OF DECISIONS

The liquidating procedure as specified in the statutes isadequate. Gallegos v. Smith, ( 1940) 111 F2d 805 afrg 34 FSupp 672.

The federal district court' s refusal to appoint ancillaryreceivers for a Utah association doing business in Oregonand to decree a lien on assets of the association in Oregon,

was proper. Id.

722.755

ATTY. GEN. OPINIONS: Right of stockholders of insolvent

associations to receive dividends, 1930 -32, p 735; reservefund as nonwithdrawable fixed amount for payment of

obligations, 1956.58, p 310.

722.760


fixed amount for payment of obligations, 1956 -58, p 310.

722.765

ATTY. GEN. OPINIONS: Commissioner as required to de-

posit funds with State Treasurer, 1934 -36, p 520; right ofminor to reclaim funds deposited in association which have

escheated, 1938 -40, p 197.

722.790

NOTES OF DECISIONS

The effect of this section was for the time being to withdraw from the circuit court jurisdiction over the association

with respect to enforcing creditors' claims. Silbaugh v. Guardian Bldg. & Loan Assn., ( 1940) 164 Or 286, 97 P2d

943, 99 P2d 1017, 101 P2d 420.

The purpose of this section was not to impair creditors'

rights, but to facilitate the orderly liquidation of such associations' affairs by the statutory receiver. Id.

The purpose of constituting the commissioner the properparty in actions against insolvent associations was not todestroy any substantial right of the creditor, but merelyto alter the remedies. Id.

Where the association appeared in an action and did notraise the point that the action should have been broughtagainst the commissioner, the objection was waived. Id.

722.805 to 722.860

ATTY. GEN. OPINIONS: Advertising as transaction of

SUPERSEDED

722.805

business in this state by a foreign corporation, 1960 -62, p143.

722.805


Assn. v. Stanley, ( 1900) 38 Or 319, 329, 63 P 489, 84 AmSt Rep 793, 58 LRA 816.

ATTY. GEN. OPINIONS: Requirements for foreign insur-

ance company to transact savings and loan business inOregon, 1950 -52, p 192; advertising. as transaction of business in this state by a foreign association, 1960 -62, p 143; distinguishing foreign association from foreign trust company, 1962 -64, p 119; application to federal associations, 1962-64,. p 150; mortgage investments by a foreign association as " doing business" in Oregon, 1966 -68, p 372.

722.810


Assn. v. Stanley, ( 1900) 38 Or 319, 340, 63 P 489, 84 AmSt Rep 793, 58 LRA 816.

ATTY. GEN. OPINIONS: Advertising as transaction ofbusiness in this state by a foreign association, 1960 -62, p143; explanation of "doing business," 1962 -64, p 119; application to federal associations, 1962 -64, _p 150; mortgage

investments by a foreign association as " doing business" in Oregon, 1966 -68, p 372.

722.815

ATTY. GEN. OPINIONS: Duties, powers and responsibilities

of commissioner and savings and loan supervisor in con-

nection with foreign building and loan associations doingbusiness in Oregon, 1932 -34, p 382; advertising as transaction of business in this state by a foreign association, 1960- 62, p 143; provisions that conflict, 1962 -64, p 150; mortgageinvestments by a foreign association as " doing business" in Oregon, purpose of regulations, 1966 -68, p 372.

722.820

ATTY. GEN. OPINIONS: Discretion to impose retaliatoryprovisions, 1926 -28, p 511; application to Washington association, 1962 -64, p 119.

722.930

NOTES OF DECISIONSThe Act was not unconstitutional because it required

deposit of specific mortgages to secure Oregon investors.

Gallegos v. Intermountain Bldg. & Loan Assn., ( 1939) 34

F Supp 672, afrd on other grounds sub. nom., Gallegos v. Smith, ( 1940) 111 F2d 805.

752

is

SUPERSEDED

r U

Chapter. 723

Credit Unions

Chapter 723

ATTY. GEN. OPINIONS: Filing record of registered officeand agent, 1952 -54, p 201; credit union as assignee for benefit of creditors, 1956 -58, p 37; authority to invest in realproperty, 1960 -62, p 246; authority of state credit unionto merge with federal credit union, 1960 -62, p 343; authorityof state agency to make salary deductions for state employecredit unions, ( 1969) Vol 34, p 569.


723.010

ATTY. GEN. OPINIONS: Authority of union to have branchoffices, ( 1968) Vol 34, p 35.

723.020

ATTY. GEN. OPINIONS: Credit unions as subject only totaxes provided for savings and loan associations, 1934 -36,

p 63; fees and taxes paid by credit unions, 1958 -60, p 193; personal property tax on federal credit unions, 1962 -64, p453.

723.030

ATTY. GEN. OPINIONS: Authority to invest in real property, 1960 -62, p 246; regulating trust deposits by one creditunion in a single savings and loan association, 1964 -66, p160.

723.040

ATTY. GEN. OPINIONS: Jurisdiction of Superintendent of

Banks over foreign credit unions, 1940 -42, p 325; duty ofbanks and trust companies, industrial loan companies andcredit unions to maintain a registered office and agent in

this state, 1952 -54, p 201; removal of credit union to anothercounty, 1956 -58 „p 223; unions as limited to corporate form, 1960 -62, p 246; authority of state credit union to merge withfederal credit union, 1960 -62, p 343; authority of union tohave branch offices, ( 1968) Vol 34, p 35; authority of stateagency to make salary deductions for state employe creditunions, ( 1969) Vol 34, p 569; authority of union to havebranch offices, ( 1968) Vol 34, p 35.

rx 1

ATTY. GEN. OPINIONS: Authority of union to have branchoffices, ( 1968) Vol 34, p 35.

723.060

ATTY. GEN. OPINIONS: Superintendent of Banks as re-

quired to pay filing fees to county clerks for filing creditunion organization and authorization certificates, 1936 -38,

p 21; removal of credit union to another county, 1956 -58,

p 223; authority of union to have branch offices, ( 1968) Vol34, p 35.

723.070

ATTY. GEN. OPINIONS:. Authority of union to have branchoffices, ( 1968) Vol 34, p 35.

723.080

ATTY. GEN. OPINIONS: Removal of credit union to an-

other county, 1956-58, p 223; authority of union to havebranch offices, ( 1968) Vol 34, p 35.

723. 100


other county, 1956 -58, p 223.

723. 110


other county, 1956.58, p 223; authority of union to havebranch offices, ( 1968) Vol 34, p 35.

723. 120

ATTY. GEN. OPINIONS: Operation of credit unions and

authority to lend money to members, 1936 -38, p 149; authority of credit union to become a member of anothercredit union, 1936 -38, p 212; individuals only as eligible tomembership, 1938 -40, p 625; authority to change the nameof a credit union, 1942 -44, p 320; authority of a credit unionto purchase and hold real estate as an investment, 194446, p 318; authority of credit union to eliminate share accountswhether fully paid up or not, 194648, p 528; credit unionas assignee for benefit of creditors, 1956 -58, p 32; authorityto invest in real property, 1960 -62, p 246; authority of statecredit union to merge with federal credit union, 1960 -62,

p 343; regulating trust deposits by one credit union in asingle savings and loan association, 1964 -66, p 160; authorityof union to have branch offices, ( 1968) Vol 34, p 35.


723. 130

ATTY. GEN. OPINIONS: Credit union as assignee for bene-

fit of creditors, 1956 -58, p 37; authority of union to havebranch offices, ( 1968) Vol 34, p 35.

723.380

ATTY. GEN. OPINIONS: Credit union as assignee for bene-

fit of creditors, 1956 -58, p 37; authority to invest in realproperty, 1960 -62, p 246.

753

SUPERSEDED

723.400

723.400

ATTY. GEN. OPINIONS: Validity of "Kwik -Loan Account" ATTY. GEN. OPINIONS: Fees and taxes paid by creditloan plan, 1958 -60, p 243. 1 unions, 1958 -60, p 193.

754

SUPERSEDED

is

Chapter 724

Industrial Loan Companies

Chapter 724

AM. GEN. OPINIONS: Exemption of securities from state

registration, 1948 -50, p 149; foreign companies desiring todo business in Oregon, 1950 -52, p 42; as requiring registeredagent in each county, 1952 -54, p 201; regulation of typesof insurance required of lenders, 1956 -58, p 39; duties ofSuperintendent of Banks under this chapter, 1960 -62, p 378; incorporation of Business Corporation Act, 1962 -64, p 101.


724.010

AM. GEN. OPINIONS: Right of foreign industrial loan

company organized under a general law to transact business in this state, 1950 -52, p 42; duty of banks and trustcompanies, industrial loan companies and credit unions to

maintain a registered office and agent in this state, 1952 -54,

p 201; loaning funds on security of real property, 1960 -62, p 378.

724.020

AM. GEN. OPINIONS: Residence requirement of direc-

tors, 1962 -64, p 101.

AM. GEN. OPINIONS: Right of association to renounce

its right to operate as an industrial loan company andqualify as a pawnbroker, 1928 -30, p 292; industrial loancompanies distinguished from banks and trust companies,

1950 -52, p 42.

kiz.*1o7

AM. GEN. OPINIONS: Authority of corporation organized and chartered prior to passage of statute to continue

issuance of the preferred and common stock until capitali-

zation authorized under original articles is fully subscribedand paid, 1924 -26, p 615; application of loan company toreduce its capital stock, 1930 -32, p 657; authority of corporation to issue stock having a par value of $1 per share, and to create two additional classes of stock, 1932 -34, p500; applicability to foreign corporation desiring to do business in Oregon, 1950 -52, p 42.

724.120

ATTY. GEN. OPINIONS: Applicability to foreign corporation desiring to do business in Oregon, 1950 -52, p 42.

724. 130

AM. GEN. OPINIONS: Authority of loan company tomake a loan without requiring purchase of an investmentcertificate, 1940 -42, p 537; computation of maximum per-

missible interest charges, 1940 -42, p 537; extension chargesas referable to instalments on certificate purchase agree-

ments only, 1940 -42, p 537, 1946 -48, p 99; authority of anindustrial loan company to insert a stipulated collectioncharge in its contracts, 194648, p 107; powers of a foreignindustrial loan company, 1950 -52, p 42; computation ofmaximum permissible interest charges, 1926 -28, p 600; loaning funds on security of real property, 1960 -62, p 378; incorporation of Business Corporation Act, 1962 -64, p 101.


724. 140

ATTY. GEN. OPINIONS: Making of a loan in an amountwhich exceeds $ 500, 1926 -28, p 410; purchase by loan company of taxi cabs and resale thereof to cab company asa violation of law, 1928 -30, p 46; powers of foreign corporation as limited to those of domestic companies, 1950 -52, p42; applicability of yield tax to publicly -owned land, 1958 -60, p 271; loaning funds on security of real property, 1960 -62, p 378.


724.150

ATTY. GEN. OPINIONS: Loaning funds on security of realproperty, 1960 -62, p 378.

724. 160

AM. GEN. OPINIONS: Powers of foreign corporation as

limited to those of domestic companies, 1950 -52, p 42; loaning funds on security of real property, 1960 -62, p 378.

724. 190

ATTY. GEN. OPINIONS: Disposition of fees paid by a foreign industrial loan company, 1950 -52, p 42; incorporationof Business Corporation Act, 1962 -64, p 101.

724.220

AM. GEN. OPINIONS: Superintendent of Banks as with-

out authority to conduct examination of corporations notwithin scope of statute, 1924 -26, p 394; loaning funds onsecurity of real property, 1960 -62, p 378.

724.260

AM. GEN. OPINIONS: Powers of foreign corporation as

limited to those of domestic companies, 1950 -52, p 42; regulation of types of insurance required of lenders, 1956 -58,

p 39.

755

SUPERSEDED

724.310

LAW REVIEW CITATIONS: 49 OLR 106. 1950 -52, p 42; as requiring registered agent in each county, • 1952 -54, p 201.

724.3I0

724.320

ATTY. GEN. OPINIONS: Requirement that foreign corpo-

ration also qualify through corporation commissioner, ATTY. GEN. OPINIONS: Powers of foreign corporation as

limited to those of domestic companies, 1950 -52, p 42.

CJ

flu

756

SUPERSEDED

Chapter 725

Small Loans

Chapter 725

ATTY. GEN. OPINIONS: License number on cover letter

with inclosed advertisement, 1950 -52, p 190; effect of changein membership of partnership upon license of partnership, 1952 -54, p 63; issuance of license in a partnership name, 195244, p 148; constitutionality of chapter, 1954 -56, p 14; validity of chattel mortgage regarding repairs, 1960 -62, p222; application to loans exceeding, $ 1, 500, 1962 -64, p 232; legality of interest charge on side loan for premium forinsurance on collateral, 1966 -68, p 115; applicability to national banks, 1966 -68, p 160.

LAW REVIEW CITATIONS: 42 OLR 5; 49 OLR 97- 110, 426.

725.010

ATTY. GEN. OPINIONS: Issuance of license in a partner-

ship name, 1952 -54, p 148.

725.025

ATTY. GEN. OPINIONS: Application to loans exceeding1, 500, 1962 -64, p 232.

725.030

NOTES OF DECISIONS

The legislative intent was to make legal the charging andcollecting of a rate of interest in excess of 10 percent perannum on certain loans, under certain conditions, and notto declare void such loans, which, prior to the enactment

of laws regulating the business of making small loans, weremerely usurious. Ford v. Bates, ( 1935) 150 Or 672, 47 P2d951.

ATTY. GEN. OPINIONS: Interest chargeable on loans ex-

ceeding $300, 1944 -46, p 16; " releasing' borrower to assumefurther obligation within statutory limit, 1950 -52, p 236; application to loans exceeding $ 1, 500, 1962 -64, p 232; sideloan for insurance premiums as indirectly exceeding themaximum allowed interest rate, 1966 -68, p 115; applicabilityof small loan laws to national banks, 1966 -68, p 160.

725.040

NOTES OF DECISIONS

The only apparent purpose in including this section inthe Small Loan Act, the Motor Vehicle Finance Act, and

the Pawnbrokers Act, was to permit any individual or firmto engage in any or all of the three kinds of loaning business, if properly licensed under each separate Act to engagein the kind of business regulated by that Act; licenseesunder one of these Acts could not merely by virtue of beingso licensed do business under either of the other Acts. Fordv. Bates, ( 1935) 150 Or 672, 47 P2d 951.

725.050

ATTY. GEN. OPINIONS: Motor vehicle finance licensee as

restricted to motor vehicles as security for loans, 1934 -36, p 484; validity under motor vehicle finance licensing lawof a form of transfer of title and assumption of mortgage,

1944 -46, p 443; duty of lender to include loan for premiumon insurance on collateral in statement concerning loans, 1966 -68, p 115.


725.060

ATTY. GEN. OPINIONS: License number on cover letter

with inclosed advertisement, 1950 -52, p 190.

725. 110

ATTY. GEN. OPINIONS: Licensing of national banks toengage in the business of making loans on motor vehicles, 1936 -38, p 88; necessity of foreign corporation, its solicitorsand salesmen to be licensed to engage in a small loan

business, 1944 -46, p 104.

725. 120

CASE CITATIONS: Ford v. Bates, ( 1935) 150 Or 672, 47 P2d951.


ship name, 1952 -54, p 148.

725. 140

ATTY. GEN. OPINIONS: Intent to employ person convictedof, violating Act as justifying refusal of license, 1934 -36, p745; effect of change in membership of partnership uponlicense of partnership, 1952 -54, p 63; applicability of smallloan laws to national banks, 1966 -68, p 160; considerationsin approving application for changing location of a bank, 1966 -68, p 380.

725. 160


ship name, 1952 -54, p 148.

725.210

ATTY. GEN. OPINIONS: Requirement that applicant for

additional license comply with all provisions governing anoriginal issuance of a license, and file an additional bond,

1934 -36, p 58.

725.230

ATTY. GEN. OPINIONS: Revocation of motor vehicle fi-

757

SUPERSEDED

725.310

nance license for unethical repossession, 1932 -34, p 328: revocation of motor vehicle finance license for failure torepair damages in connection with repossession, 1934 -36,

p 196; revocation of motor vehicle finance license for lend- ing to persons not owning vehicles, 1938 -40, p 169.


725.310

ATTY. GEN. OPINIONS: Application to loans exceeding1, 500, 1962 -64, p 232.

725.320

ATTY. GEN. OPINIONS: Authority of Superintendent ofBanks in connection with repossession of an automobile

held as security for a loan, 1932 -34, p 328; duty of Superin- tendent of Banks in connection with repossession and rede-

livery of a motor vehicle, 1934 -36, p 196; regulations governing advertising, 1950 -52, p 190.

725.340

NOTES OF DECISIONS

The provision that any loan made by any licensee forwhich a greater rate of interest or consideration than is

permitted by this Act has been charged, contracted for orreceived, shall be void, applies only to licensees. Ford v. Bates, ( 1935) 150 Or 672, 47 P2d 951.

Subsection ( 1) is constitutional and not violative of Ore.

Const. Art. IV, §20, providing for the title requirements ofstatutes or of §23( 12), prohibiting special or local laws asto interest on money. Wrenn v. Portland Loan Co., ( 1937)

155 Or 395, 64 P2d 520.

ATTY. GEN. OPINIONS: Right of person acting as aninsurance agent, who is also an officer of a corporation

licensed under the Small Loan Act, to accept his commis-

sion on insurance written to cover property mortgaged bya borrower to the corporation of which he is an officer,

1930 -32, p 619; company entering into a small loan transaction in this state as governed by the Oregon Act in chargingfees although the borrower is a Washington resident and

the security for the loan is situated in that state, 194446, p 292.

Validity of a chattel mortgage provision for deduction

of expenses of repossession, etc., 193840, p 656; makingof loan secured by second mortgage upon a motor vehicle, 1936 -38, p 362; validity of liens upon trailers as security, 193840, p 19; applicability of the $500 provision where theaggregate of loans made to one person under the motor

vehicle finance licensing law exceeds that amount, 1940 -42, p 87; where amount of loan under the motor vehicle financelicensing law is increased upon renewal, applicability ofinterest rates, 1940 -42, p 237; including in the loan the recording fee and insurance premium to be charged theborrower, 1944 -46, p 51; legality of adding to the unpaidprincipal of a loan held by the licensee an insurance premium which becomes due and charging interest at the rateof 10 percent per annum, 1944.46, p W.

Releasing" borrower to assume further obligation withinstatutory limit, 1950 -52, p 236; inclusion of accommodationnote in computation of maximum permissible interest

charges, 1956 -58, p 151; validity of chattel mortgage provision regarding repairs, 1960 -62, p 222; application to loansexceeding $ 1, 500, 1962 -64, p 232; legality of interest chargeon side loan for premium for insurance on collateral, 1966-

68, p 115; applicability of usury laws to national bank' sBankAmericard program, 1966 -68, p 160.

LAW REVIEW CITATIONS: 37 OLR 78; 47 OLR 146; 49OLR 426.

725.360

ATTY. GEN. OPINIONS: Duty of lender to include loan forpremium on insurance on collateral in statement concerningloans, 1966 -68, p 115.

725.370

NOTES OF DECISIONS

To avoid repayment of the loan, the borrower may availhimself of the defense of usury, and, if successful, he isrelieved of paying anything more than the principal, whichhe is required to pay into the school fund. If the borrowerwould escape the payment of both principal and interest,

he must see that the lender is convicted of charging a rateof interest in excess of that countenanced by law. Ford v. Bates, ( 1935) 150 Or 672, 47 P2d 951.

725.990


758

SUPERSEDED

JChapter 726

Pawnbrokers

Chapter 726


72 &010

NOTES OF DECISIONS

The legislative intent was to make legal the charging andcollecting of a rate of interest in excess of 10 percent perannum on certain loans, under certain conditions, and not

to declare void such loans, which, prior to the enactment

of laws regulating the business of making small loans, weremerely usurious. Ford v. Bates, ( 1935) 150 Or 672, 47 P2d951.

726.030

NOTES OF DECISIONS

The only apparent purpose in including this section inthe Small Loan Act, the Motor Vehicle Finance Act, and

759

the Pawnbrokers Act, was to permit any individual or firmto engage in any or all of the three kinds of loaning business, if properly licensed under each separate Act to engagein the kind of business regulated by that Act; licenseesunder one of these Acts could not merely by virtue of beingso licensed do business under either of the other Acts. Ford

v. Bates, ( 1935) 150 Or 672, 47 P2d 951.

726.270

CASE CITATIONS: McGowan v. Maryland, ( 1961) 366 US420, 557, 81 S Ct 1101, 6 L Ed 2d 393.

726.380

CASE CITATIONS: Adye v. Grossman, ( 1958) 214 Or 363, 329 P2d 1116, 68 ALR2d 1256.

726.390


SUPERSEDED

JJ

760

SUPERSEDED

Chapter 731

Administration and

General Provisions

Chapter 731

CASE CITATIONS: Earle v. Holman, ( 1936) 154 Or 578, 55P2d 1097, 61 P2d 1242; Barmeier v. Ore. Physicians' Serv., 1952) 194 Or 659, 243 P2d 1053.

ATTY. GEN. OPINIONS: Applicability to foreign insurancecompany desiring only to transact mortgage loan investment business in this state, 1950 -52, p 192; application ofchapter to reciprocal or interinsurance exchanges, 1960 -62,

p 80.

731. 004

ATTY. GEN. OPINIONS: Issuance of credit insurance based

only on a medical questionnaire, 1966 -68, p 7.

731. 008

ATTY. GEN. OPINIONS: Discretion commissioner may exercise in granting or denying a license, 1964 -66, p 366; construing " felony" and " good moral character," 1964 -66, p 370; experience required to serve as commissioner, 1966 -68, p106.

731.012

CASE CITATIONS: Transnational Ins. Co. v. Rosenlund,

1966) 261 F Supp 12.

731.016

ATTY. GEN. OPINIONS: Use of preamble in determiningcommissioner's powers, 1964 -66, p 366; use of preamble inconstruing insurance law, 1964 -66, p 370.

731. 022

ATTY. GEN. OPINIONS: Whether title insurance compa-

nies are within definitions, 1928 -30, p 272; authority of interinsurance exchange to issue " assessment guaranty

bond," 1934 -36, p 584; authority of state agencies and municipalities to secui-e insurance in interinsurance exchanges,

1940 -42, p 644, 1942.44, p 236; necessity of foreign insurancecompany complying with the state insurance laws whenthe corporation is limiting its business to mortgage loantransactions, 1950 -52, p 192; unemployment insurance byautomobile dealer, 195456, p 130; authority to licenseGrange Insurance Association to write automobile insur-

ance, 1960 -62, p 258; authority of mass transit district totax, ( 1970) Vol 34, p 1066.

731.026

ATTY. GEN.,OPINIONS: Whether certain employes' benefit

association is exempt, 1928 -30, p 65; physicians furnishingservices to employers as exempt, 1928 -30, p 547, 1932 -34, p 547; physicians organizing association to treat workmen

in consideration of wage deduction, 1936 -38, p 518; authorityof mass transit district to tax, ( 1970) Vol 34, p 1066.

731. 032

CASE CITATIONS: Rosebraugh v. Tigard, ( 1927) 120 Or

411, 252 P 75; Geddes v. Ore. Grange Fire Relief Assn., ( 1934)

147 Or 275, 32 P2d 774.

ATTY. GEN. OPINIONS: Whether benefit association is

required to have license, 1928 -30, p 65; application to certainsociety, 1932 -34, p 696; patrons of husbandry engaged inactivities other than fire and life insurance, 1956 -58, p 41; charter of benevolent society as determinative of form ofaid to members, 1956 -58, p 156; ski breakage warranty asinsurance, 1958 -60, p 94; " members of charitable, fraternalor religious societies" defined, 1958 -60, p 274; applicationof retaliatory tax to reciprocal or interinsurance exchanges, 1960 -62, p 80; application of General Insurance Law to aforeign corporation doing a hospital association business, 1960 -62, p 215; authority to license Grange Insurance Asso- ciation to write automobile insurance, 1960 -62, p 258.

731.036

ATTY. GEN. OPINIONS: Existing society' s eligibility toreceive license or certificate under amended and supple-

mentary articles, 1928 -30, p 56.

731.042

ATTY. GEN. OPINIONS: Application of Unclaimed Proper-

ty Act to fraternal benefit societies, 1966 -68, p 302.

731. 052 to 731. 146

NOTES OF DECISIONS


A principal contractor' s indemnity bond in favor of subcontractors, etc., was an insurance contract within the

meaning of the statute. Fred Christensen, Inc. v. HansenConstr. Co., ( 1933) 142 Or 549, 21 P2d 195.

The statutory definition did not include a contract ofannuity. Hall v. Metropolitan Life Ins. Co., ( 1934) 146 Or

32, 28 P2d 875. A contract which provided for return of the consideration

paid was not a life insurance or annuity contract. Ballouv. Fisher, ( 1936) 154 Or 548, 61 P2d 423.

An oral agreement of insurance by a general agent wasvalid. Mock v. Glens Falls Indemn. Co., ( 1957) 210 Or 71,

309 P2d 180.

Defendant's insurance contract met the statutory definition of insurance. Baker v. Federal Crop Ins. Corp., ( 1965)

241 Or 609, 407 P2d 841, cert. dis., 385 US 801, 86 S Ct 1459,

18 L Ed 2d 538.

AM. GEN. OPINIONS: " Insurance" charges by laundries, 1922 -24, pp 162, 193; savings and loan contracts, 1926 -28, p 188; tire servicing contracts, 1926 -28, p 194; check writing

761

SUPERSEDED

731. 062

machine companies issuing bond or policies to machinepurchasers, 1926 -28, p 307; land value guaranty, 1926 -28, p576; whether certain alien insurance company is a citizenwithin treaty provisions, 1930 -32, p 172; whether religiousvoluntary benevolent society is an insurance company, 1932 -34, p 696; certain annuity type contracts or policies, 1930 -32, p 700, 1932 -34, p 199, 1940 -42, pp 51, 456; warehousereceipts insuring goods, 1934 -36, p 130; interinsurance exchanges issuing assessment guaranty bonds, 1934 -36, p 584; undertakings in criminal cases, 1936 -38, p 693; sales contracts providing for suspension or cancellation of paymentsupon certain contingencies, 1940 -42, p 58; legal and attorneys fees, court costs, accountants fees, and expenses in-

curred by insured against all claims for taxes as a validsubject of insurance, 1952 -54, p 111; unemployment insurance by automobile dealer, 1954 -56, p 130; ski breakagewarranty as insurance, 1958 -60, p 94; application of definition to corporation formed to provide death and medical

plan to membership, 1958-60, p 274; application of retaliatory tax to reciprocal or interinsurance exchanges, 1960 -62, p 80; application of General Insurance Law to a foreigncorporation doing a hospital association business, 1960 -62, p 215; authority to license Grange Insurance Associationto write automobile insurance, 1960 -62, p 258; medical creditagreements, 1960 -62, p 304; regulation of debt cancellationcontracts executed by national banks, 1964 -66, p 59; regulation of provisions allowing participation in divisible surplus, 1964 -66, p 61; licensed funeral director as a licensed agentor salesman, 1964 -66, p 365.

731. 062

CASE CITATIONS: Ramstead v. North -West Ins. Co.,

1969) 252 Or 423, 450 P2d 538.

731. 102

CASE CITATIONS: Richardson v. Ry. Express Agency, 1971) 258 Or 170, 482 P2d 176.

731. 106

NOTES OF DECISIONS

Under former similar statute a mutual benefit association

was an insurance company within the statutory definition. Mutual Benefit Health & Acc. Assn. v. Lee, ( 1929) 128 Or

536, 275 P 43.

Under former similar statute a surety company on acontractor's bond was an insurance company and was liablefor reasonable attorney fees in an action on the bond. FredChristensen, Inc. v. Hansen Constr. Co., ( 1933) 142 Or 549,

21 P2d 195.

FURTHER CITATIONS: United States ex rel. Western SteelCo. v. Travelers Indem. Co., ( 1965) 37 FRD 322; Travelers

Inden-L Co. v. United States ex rel. Western Steel Co., (1966)

362 F2d 896; Richardson v. Ry. Express Agency, ( 1971) 258Or 170, 482 P2d 176.

ATTY. GEN. OPINIONS: Television service company as aninsurance company, 1952 -54, p 237; unemployment insurance by automobile dealer, 1954 -56, p 130; automobile inspection service with warranty as an insurance company, 195456, p 219; authority to license Grange Insurance Asso- ciation to write automobile insurance, 1960 -62, p 258; regulation of debt cancellation contracts executed by nationalbanks, 1964. 66, p 59.

731. 150 to 731. 194

CASE CITATIONS: Hall v. Metropolitan Life Ins. Co., ( 1934)

146 Or 32, 28 P2d 875; Medford v. Pac. Nat. Fire Ins. Co.,

1950) 189 Or 617, 219 P2d 142, 222 P2d 407; Am. Sur. Co.

v. Fischer Whse. Co., ( 1937) 88 F2d 536; United States ex

rel. Western Steel Co. v. Travelers Indem. Co., ( 1965) 37

FRD 322.

ATTY. GEN. OPINIONS: Marine insurance on mixed sea

and land risks, 1924 -26, p 29; guaranteeing payment of notesand mortgages as within surety insurance, 1924 -26, p 444; risks within automobile insurance, 1924 -26, p 572; tire servicing agreement as insurance, 1926 -28, p 194; bonds orpolicies given with check writing machine purchases assurety insurance, 1926 -28, p 307; income savings bond aslife insurance; companies issuing income saving bonds, 1926 -28, p 316; land value insurance, 1926 -28, p 576; confiscation bond as surety insurance, 1928 -30, p 36; fire andmarine policies distinguished, 1928 -30, p 556; warehousereceipt as insurance policy, 1934 -36, p 130; types of insurance that may be written by fire and by marine companies, 1936 -38, p 54: undertakings in criminal cases, 1936 -38, p 693; issuing certificates with sales contracts with provisions forrelief of payment on certain contingencies, 1940 -42, p 58; domestic mutual companies transacting casualty insurance, 1942 -44, p 335; life insurance and medical expense benefitsunder one class, 1958 -60, p 3; organization of reciprocalinsurance exchange to insure liability and material damagerisks for aircraft, 1960 -62, p 93; interpretation of statutesregulating annuity agreements made by educational institutions, 1960 -62, p 180; regulation of provisions allowingparticipation in divisible surplus, 1964 -66, p 61.

731. 174

ATTY. GEN. OPINIONS: Organization of reciprocal insur-

ance exchange to insure liability and material damage risksfor aircraft, 1960 -62, p 93.

731. 190

ATTY. GEN. OPINIONS: Procedure for incorporation of

title insurance companies, 1924 -26, p 597; conditions forreinsurance of title insurance obligations, 1926 -28, p 607; Corporation Commissioner's authority over title insurancecompanies, 1966 -68, p 259.

731. 194

ATTY. GEN. OPINIONS: Extent of coverage of marine

insurance, 1924 -26, p 29; whether a certain policy is a marineor fire policy, 1928 -30, p 556; what insurance may be writtenby a marine insurance company and by a fire insurancecompany, 1936 -38, p 54.

731. 208


in Department of Commerce, 1964 -66, p 51; vested renewalsand agents' retirement policy as interest in an insurancecompany, 196466, p 270; use of blanket position bond inlieu of individual surety bond, 1966 -68, p 83; construingexperienced in insurance matters," 1966 -68, p 106.

731.212

ATTY. GEN. OPINIONS: Blanket position bond for com-

missioner, 1966 -68, p 83.

731. 224

ATTY. GEN. OPINIONS: Providing dental services as ahospital corporation, 1956 -58, p 301; discretion of commissioner to issue license, 1960 -62, p 54.

762

SUPERSEDED

J

731. 232

ATTY. GEN. OPINIONS: Power of commissioner to sub -

pena witnesses at hearing upon revocation or renewal, 1928 -30, p 598; nature of the proceeding before the commissioner, 1930 -32, p 71; right of agent to carry on businesspending entry of order upon renewal application, 1936 -38, p 228; construing authority to suspend a license withouta hearing, 1964 -66, p 109; informal hearing on incorrectstatements, 1964 -66, p 284.

731.240

CASE CITATIONS: Peterson v. State Farm Mut. Auto. Ins. Co., ( 1964) 238 Or 106, 393 P2d 651.

ATTY. GEN. OPINIONS: Insured' s right to appeal to com-

missioner question of application of fire insurance ratingschedule, 1964 -66, p 168; construing " felony" and " goodmoral character," 1964 -66, p 370; review of division rule fornonresident agent license, ( 1970) Vol 35, p 165.

731. 280

ATTY. GEN. OPINIONS: Sufficiency of publication of synopsis of annual statement, 1924 -26, p 183; authority of commissioner with reference to annual statements, 1924 -26, p539; liability of surety for principal' s failure to file annualstatements, 1926 -28, p 197; title insurance companies' statements, 1928 -30, p 272; whether hospital associations mustpublish annual statements, 1938 -40, p 289; publishing andselling insurance commission literature, 1950 -52, p 352.

731. 292

ATTY. GEN. OPINIONS: Retaliatory taxes collected priorto 1958, 1960 -62, p 263.

731. 300

ATTY. GEN. OPINIONS: Examination to determine rightof mutual fire association to use assets to organize stockcasualty company, 1926 -28, p 523; examination of hospitalcare associations, 1960 -62, p 310.

731. 312

ATTY. GEN. OPINIONS: Examination of hospital care associations, 1960 -62, p 310.

731.316

ATTY. GEN. OPINIONS: Examination of hospital care as-

sociations, 1960 -62, p 310.

731. 358

ATTY. GEN. OPINIONS: Construing authority to terminatecertificate for failure to file financial statement, 1966 -68, p524.

731. 382

NOTES OF DECISIONS

Under a former similar statute, a foreign mutual companycould do business in this state only by complying with therequirements of the statute. Johnson v. Sch. Dist. 1, ( 1929)

128 Or 9, 270 P 764, 273 P 386.

FURTHER CITATIONS: Mutual Benefit Health & Acc.

Assn. v. Lee, ( 1929) 128 Or 536, 275 P 43; State v. Tazwell,

731. 394

1928) 125 Or 528, 266 P 238, 59 ALR 1436; Gilbert v. New

Zealand Ins. Co., ( 1892) 49 Fed 884, 15 LRA 125.

ATTY. GEN. OPINIONS: Requirements for mutual insur-

ance companies to do business, 1922 -24, pp 236, 601, 678; foreign companies making cash deposit for benefit of policyholders, 1924 -26, p 291; foreign insurance companies, notauthorized to do business in Oregon, soliciting by mail, 1924 -26, p 514; proof of capital and surplus of foreign company, 1926 -28, p 155; discussion of " paid -up capital," 1926-

28, pp 203, 239; surplus and capital requirements of foreignor alien company, 1926.28, p 367; whether foreign life company having non -par stock may be excluded, 1928 -30, p 518; authority of fire company to change name and transactcasualty business, 1936 -38, p 519; patrons of husbandryengaged in activities other than fire and life insurance,

1956 -58, p 41; authority to license Grange Insurance Associ- ation to write automobile insurance, 1960 -62, p 258; authority to act against a company for misappropriations of anagent, 1964 -66, p 20; Corporation Commissioner' s authorityover title insurance companies, 1966 -68, p 259.

731. 366

ATTY. GEN. OPINIONS: Applications for insurance cover-

ing property outside the state, 1922 -24, p 260; certificate ofauthority for reciprocal or interinsurance exchange, 1958 -60, p 152; organization of reciprocal insurance exchange toinsure liability and material damage risks for aircraft, 1960 -62, p 93.

731.370

NOTES OF DECISIONS

A former similar statute, applied to venue rather than

jurisdiction, so that transitory action against insurancecompany was within court' s jurisdiction although the parties were nonresidents, the contract was executed outside

the state and the accident occurred outside the state. Cana-

dian Indem. Co. v. State Auto. Ins. Assn., ( 1959) 174 F Supp71.

731. 378

ATTY. GEN. OPINIONS: Insurance Commissioner as proper

authority for foreign insurance companies to deal with totransact insurance business in Oregon, 1922 -24, p 678, 1932 -34, p 538; necessity of foreign insurance companycomplying with the state insurance laws when the corporation is limiting its business to mortgage loan transactions, 1950 -52, p 192.

731. 382

CASE CITATIONS: Rosebraugh v. Tigard, ( 1927) 120 Or411, 252 P 75; Johnson v. Sch. Dist. 1, ( 1929) 128 Or 9, 270

P 764, 273 P 386; Meader v. Farmers' Mut. Fire Relief Assn., 1931) 137 Or 111, 1 P2d 138.

ATTY. GEN. OPINIONS: Whether benevolent society is amutual fire insurance company, 1932 -34, p 551.

731. 390

ATTY. GEN. OPINIONS: Effect of statute generally, 1922- 24, p 601.

731.394

ATTY. GEN. OPINIONS: Licensing foreign company totransact title insurance business, 1926 -28, p 103; licensingforeign company to transact land value insurance, 1926 -28,

763

SUPERSEDED

731. 410

p 576; depreciation insurance, 1936 -38, p 336; domestic mutual insurance company transacting casualty business, 1942 -44, p 335; eligibility of mutual assessment life insurancecompany to do accident and health insurance business, 1958 -60, p 108; application to medical credit corporation, 1960 -62, p 304.

731. 410

ATTY. GEN. OPINIONS: Necessity for fire insurance companies to furnish new bonds when new licenses are issued,

1922 -24, p 587; authority to refuse renewal of license, 1936- 38, p 181; disability insurance company applying for newcertificate of authority after May 12, 1955, 1956 -58, p 317.

731.414

CASE CITATIONS: Johnson v. Sch. Dist. 1, ( 1929) 128 Or9, 270 P 764, 273 P 386.

ATTY. GEN. OPINIONS: Misrepresenting policy, 1962 -64, p 427; authority to act against a company for misappropriations of an agent, 1964 -66, p 20.

731.434

NOTES OF DECISIONS

1. Under former similar statuteRequirements of the statute were not unreasonable. State

v. Tazwell, ( 1928) 125 Or 528, 266 P 238, 59 ALR 1436.

A foreign corporation that complied with the statuteassumed all the duties and liabilities that it imposed. Id.

The attorney appointed under the statute had as muchauthority to accept service as an officer of the corporation. Id.

Service upon the agent designated under the statute conferred jurisdiction upon the court, though the contract suedon was executed abroad and the plaintiff was a nonresident.

Id.

A policy stipulation which provided that only the courtsof a particular foreign jurisdiction were competent " for the

fulfillment of this contract" was contrary to public policyand, therefore, void. Id.

Service of summons upon the resident agent for service

was sufficient to give complete jurisdiction to any courtof the state in which the venue of an action was properlylaid; and any private corporation, domestic or foreign, couldbe sued on a transitory action either in the county of itsprincipal place of business or in the county where the causeof action arose. State v. Updegraff, 51943) 172 Or 246, 141

P2d 251.

Where a transitory action against a foreign corporationwas commenced either in the county of its principal placeof business or in that wherein the cause of action arose,

personal service could be made upon the statutory agentfor service at any place where he might be found withinthe state. Id.

ATTY. GEN. OPINIONS: Method of making proof of serviceby the commissioner, 1928 -30, p 625; patrons of husbandryengaged in activities other than fire and life insurance,

1956 -58, p 41; constructive service on insurance companynot doing business in the state, 1956 -58, p 298.

731. 438

ATTY. GEN. OPINIONS: Title plant as related • to each

county in which company conducts business, not eachbranch office, ( 1970) Vol 35, p 133.

731. 442

ATTY. GEN. OPINIONS: Validity of proposed plans ofinsurance, 1928 -30, p 469, 1932- 34, p 401; eligibility of mutualassessment life insurance company to do accident andhealth insurance business, 1958 -60, p 108; reserve requirements for mutual assessment life insurance company, 1958 -60, p 108; reserve requirement, 1964 -66, p 14; application to a business engaged in but not selling credit lifeinsurance, 1966 -68, p 524.

731. 458

CASE CITATIONS: Truck Ins. Exch. v. Truck Ins. Exch., 1940) 165 Or 332, 107 P2d 511.

ATTY. GEN. OPINIONS: Requisites. for organization and

operation of interinsurance under former similar statute,

1922 -24, p 260; validity of reinsuring a policy issued byinterinsurance exchange under a former similar statute,

1928-30, p 94; authority of interinsurance exchange to writeinsurance and bonds required of motor carriers, 1932 -34, p430; authority to issue financial responsibility bond, 1934 -36, p 422; authority to issue " assessment guaranty bonds," 193436, p 584; whether state -owned vehicles may be insuredthrough interinsurance exchanges, 1942 -44, p 236; state, county or municipal corporation making contract of insurance with reciprocal insurance exchange, 1954 -56, p 151.

731. 508

ATTY. GEN. OPINIONS: Reserve requirements for mutual

assessment life insurance company, 1958 -60, p 108.

731. 512

ATTY. GEN. OPINIONS: Whether section applied to hospi-

tal association, 1926 -28, p 238, 1930 -32, p 578; conditionsunder which reinsurance could be effected, 1926 -28, p 607.

731. 554

ATTY. GEN. OPINIONS: Disability insurance companysurrendering certificate and applying for new one, 1956 -58, p 317; eligibility of mutual assessment life insurance company to do accident and health insurance business, 1958 -60, p 108.

731. 562

ATTY. GEN. OPINIONS: Duty of commissioner to determine eligibility of securities offered for deposit, 1934 -36, p650; commissioner's authority over title insurance companies, 1966 -68, p 259.

731. 574

ATTY. GEN. OPINIONS: Commissioner' s authority overtitle insurance companies, 1966 -68, p 259; imposition ofretaliatory tax when insurer pays assessments, 1966 -68, p392; construing authority to terminate certificate for failureto file financial statement, 1966 -68, p 524.

731. 604

ATTY. GEN. OPINIONS: Charging companies for costs ofservicing securities deposited, 1966 -68, p 594.

731.612

NOTES OF DECISIONS

Under former similar statute securities deposited by in-

764

is

lu

SUPERSEDED

surance company as. a condition precedent to doing suretyand fidelity business were for the benefit of holders ofpolicies of that class and were not available to policyholders

and others having claims arising out of other classes ofinsurance. Earle v. Holman, ( 1936) 154 Or 578, 55 P2d 1097,

61 P2d 1242; Averill v. Holman, ( 1936) 155 Or 125, 60 P2d

968, 62 P2d 939.

ATTY. GEN. OPINIONS: Surety bond deposited in lieu ofsecurities by insolvent foreign fire company, 1926 -28, p 227; whether surety bond may be deposited in lieu of securities, 1928 -30, p 207; authority to collect interest on bonds deposited by foreign insurance companies upon insolvency, 1932 -34, p 514, 1934 -36, p 674; whether section applied todeposits by foreign investment companies, 1938 -40, p 332, 1940 -42, p 130; charging companies for costs of servicingsecurities deposited, 1966 -68, p 594.

731.624

CASE CITATIONS: Herbring v. Lee, ( 1928) 126 Or 588, 269P 236, 60 ALR 1165; Jones & Son, Inc. v. Columbia Cas.

Co., ( 1934) 73 F2d 449; Earle v. Holman, ( 1936) 154 Or 578,

55 P2d 1097, 61 P2d 1242.

ATTY. GEN. OPINIONS: Necessity for furnishing newbonds annually when license is renewed, 1922 -24, p 587; authority of company to write fire insurance under additional title without filing additional bond or securities, 1922 -24, p 799; liability of surety for taxes and penaltiesimposed on fire company, 1926 -28; p 197; scope of protectionafforded by bond filed in lieu of deposit, 1926 -28, p 227; termination of liability on bonds, 1926 -28, p 525; use ofvoluntary deposit as guaranty fund, 1926 -28, p 152; conditions for reinsurance of title insurance obligations, 1926 -28,

p 607; report and synopsis required of title insurance company, 1928 -30, p 272; authority to substitute bonds in lieuof security deposited, 1928 -30, p 207; procedure for retiringcompany to obtain release of bond, 1930 -32, p 106; authorityof commissioner as ancillary receiver to demand and receivesecurities deposited with him, 1930 -32, p 780; duties of commissioner and disposition of funds deposited by insolventforeign fire and casualty company, 1930 -32, p 797; validityof section, 1934 -36, p.240; release of surety bond and depositof securities, 1938 -40, p 346; municipalities obtaining insurance with interinsurance exchange if deposit made or bond

filed, 1940 -42, p 644; charging companies for costs of servicing securities deposited, 1966 -68, p 594.

731. 628


731. 632


731.636


731. 640

ATTY. GEN. OPINIONS: Acceptance of mortgage certifi-

cate for deposit, 1924 -26, p 551; deed of trust for deposit, 1926 -28, p 322; whether " corporate stock" of a municipalityis eligible for deposit, 1934 -36, p 284; duty of commissionerto determine eligibility of securities offered for deposit,

731. 816

1934 -36, p 650; charging companies for costs of servicingsecurities deposited, 1966 -68, p 594.

731. 648

NOTES OF DECISIONS


A holder of a casualty policy issued by another companywas not entitled to any part of the fund deposited merelybecause the company that made the deposit reinsured thepolicy. Earle v. Holman, ( 1936) 154 Or 578, 55 P2d 1097, 61P2d 1242.

The fact that liability on a surety bond arose from adefault occurring in another state did not prevent the beneficiary from claiming his proper share of the deposit if thebond itself was written in Oregon. Id.

The deposit made by a foreign surety company was notavailable to persons having claims arising out of policiesof a different character. Id.

ATTY. GEN. OPINIONS: Authority of commissioner todivert deposit to payment of claims not contemplated bystatute, 1920 -22, p 346; procedure for withdrawal of depositby foreign company, 1928 -30, p 32; procedure to collectclaims payable from deposit, 1930 -32, p 533; authority ofancillary receiver of insolvent foreign surety company toreceive deposit, 1932 -34, p 468; whether notice of sale ofsecurities need be given insolvent surety company, 1934 -36; p 154; authority of State Treasurer to exchange bonds deposited, 1934 -36, p 206; charging companies for costs ofservicing securities deposited, 1966 -68, p 594.

731. 652

ATTY. GEN. OPINIONS: Procedure to withdraw deposit,

1926 -28, p 238, 1928 -30, p 32, 1930 -32, p 106; conditions underwhich a title insurance company may reinsure its obligations and secure a release of deposit, 1926 -28, p 607; charging companies for costs of servicing securities deposited, 1966 -68, p 594.

731. 704 to 731. 724

ATTY. GEN. OPINIONS: Interpretation of statutes regulat-

ing annuity agreements made by educational institutions, 1960 -62, p 180; authority of mass transit district to tax, 1970) Vol 34, p 1066.

731. 804

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

731. 816

NOTES OF DECISIONS

Under former similar statute, the loading factor of thepremium charged to the insured for making payments byinstalments was a part of gross premium and subject to

tax. State Ins. Commr. v. Allstate Ins. Co., ( 1960) 221 Or

371, 351 P2d 433.

ATTY. GEN. OPINIONS: Liability for tax on premiums received by one company and ceded in part to another for reinsurance, 1924 -26, pp 539, 559; liability of surety on bond fordelinquent taxes of foreign insurance company, 1926 -1928, p 197; whether tax on alien company violated treaty rights, 1930 -32, p 171; tax on consideration paid for annuity contracts, 1930 -32, p 700; tax liability of foreign company inhands of receiver, 1930 -32, p 814; tax liability of insurancecompany purchasing assets of dissolved insurance company, 1936 -38, p 388; whether cash surrender values are

765

SUPERSEDED

731. 820

return premiums, 193840, p 694; fee for privilege of payingpremium in instalments, 1956 -58, p 40; validity of grosspremium tax on premiums of foreign corporations not

authorized to do business in Oregon, 1960 -62, p 131; application of General Insurance Law to a foreign corporation

doing a hospital association business, 1960 -62, p 215; testused in applying section, 1960 -62, p 346; crediting ratingbureau fees in applying retaliatory tax, 1960 -62, p 449; limitation on collection of gross premium tax, 1964 -66, p 28; authority of mass transit district to tax, ( 1970) Vol 34, p1066.

731. 820

ATTY. GEN. OPINIONS: Duty of commissioner to collectgross premium tax due on unreported instalment premium

income, 1964 -66, p 28.

731. 832

ATTY. GEN. OPINIONS: Imposition of retaliatory tax wheninsurer pays assessments, 1966 -68, p 392.


731. 840

NOTES OF DECISIONS


City ordinances which charged fees for the licensing ofinsurance agents were nullified by the former statute. Lovejoy v. Portland, ( 1920) 95 Or 459, 188 P 207.

The nature of the annual license fee exacted from insur-

ance companies was the same as the annual corporation

license fee. Title & Trust Co. v. Wharton, ( 1941) 166 Or 612,

114 P2d 140.

FURTHER CITATIONS: Lyons v. Portland ( 1925) 115 Or

533, 235 P 691; Homer' s Market v. Tri- County MetropolitanTrans. Dist., (1970) 2 Or App 288, 467 P2d 671, Sup Ct reviewdenied ( with opinion), 256 Or 124, 471 P2d 798.

ATTY. GEN. OPINIONS: Liability of insurance companiesfor motor vehicle license fees, 1922 -24, p 357; fee for filingpowers of attorney, 1924 -26, p 627; liability of foreign companies for general taxes upon real estate, furnishings, etc.,

1926 -28, p 555; city licenses for insurance agents, 1958 -60, p 77; Green River Ordinance restrictions on licensed insurance agents, 1958 -60, p 77; authority of mass transit districtto tax, ( 1970) Vol 34, p 1066.

731. 854

ATTY. GEN. OPINIONS: Construing retaliatory tax whenOregon insurance company is not present in foreign insurer's home state, 1958 -60, p 363; use of scheduled premiumtax formula of foreign state in retaliatory tax calculation, 1960 -62, p 80; retaliatory taxes collected prior to 1958, 1960 -62, p 263; crediting rating bureau fees in applyingretaliatory tax, 1960 -62, p 449; imposition of tax when insurer pays employer's assessments under Workmen's Com-

pensation Act, 1966 -68, p 392.

731. 988


missioner question of application of fire insurance ratingschedule, 1964 -66, p 169.

731.992

CASE CITATIONS: Ocean Acc. & Guar. Corp. v. AlbinaMarine Iron Works, ( 1927) 122 Or 615, 260 P 229; Hall v.

Metropolitan Life Ins. Co., ( 1934) 146 Or 32, 28 P2d 875;

Baker v. Federal Crop Ins. Corp., ( 1965) 241 Or 609, 407P2d 841.

ATTY. GEN. OPINIONS: Whether advertising in newspaperby insurance organization not authorized to do businessin this state was prohibited, 1928 -30, p 31; misstatement bya mortgagor in claim against insurance company as perjurywithin the statute, 1930 -32, p 96; misrepresenting policy, 1962- 64, p 427.

766

SUPERSEDED

Chapter 732

Organization and Corporate Proceduresof Domestic Insurers

Chapter 732'

ATTY. GEN. OPINIONS: Regulatory jurisdiction over titleinsurance as with the Insurance Division, 1966 -68, p 259.

732.005

ATTY. GEN. OPINIONS: Nature of surplus required for

dividend, 1920 -22, p 486.

732.025

ATTY. GEN. OPINIONS: Whether section applied to hospi-

tal associations, 1930 -32, p 578; authority of mutual fireassociation to amend articles and carry on other insurancebusiness, 1936 -38, p 519; organization of corporations toorganize and hold stock of domestic insurance companies,

1940 -42, p 114; authority of domestic mutual insurancecompany to transact casualty business, 1942 -44, p 335; discretion commissioner may exercise in granting or denyinga license, 196466, p 366.

732.045

ATTY. GEN. OPINIONS: Authority to inquire into reportedcapital stock impairment, 1926 -28, p 419; discretion commissioner may exercise in granting or denying a license, 1964 -66, p 366.

732. 105

CASE CITATIONS: Oregon Auto. Ins. Co. v. Bateman, 1971) 258 Or 360, 482 P2d 744.

MYA M

CASE CITATIONS: Oregon Auto. Ins. Co. v. Bateman, 1971) 258 Or 360, 482 P2d 744.

ATTY. GEN. OPINIONS: Discretion commissioner may exercise in granting or denying a license, 1964 -66, p 366.

732. 145

ATTY. GEN. OPINIONS: Promoter's liability for use ofsubscription money in excess of 15 percent limitation orfailure to reimburse if not organized, 1958 -60, p 218; useof capital stock subscriptions for promotional expenses,

1958 -60, p 218.

732. 165

ATTY. GEN. OPINIONS: Promoter's liability for use ofsubscription money in excess of 15 percent limitation orfailure to reimburse if not organized, 1958 -60, p 218.

732.205

CASE CITATIONS: Union States Life Ins. Co. v. Bernert,

1939) 161 Or 44, 87 P2d 774.

ATTY. GEN. OPINIONS: Whether domestic mutual insur-

ance company may be authorized to transact casualty business, 1942 -44, p 335.

732.215

ATTY. GEN. OPINIONS: Authority to deposit surplus' ontime certificates, 1938 -40, p 382; authority to deposit orinvest surplus with building and loan associations, 1940 -42, pp 139, 185.

732.315

ATTY. GEN. OPINIONS: Validity of contract between firecompany and its manager covering a period of over fiveyears, 1920 -22, p 115.

732.415

ATTY. GEN. OPINIONS: Whether use of proxy is limitedto a single meeting, 1920 -22, p 183.

767

SUPERSEDED

Chapter 733

Accounting and Investments

Chapter 733

CASE CITATIONS: Oregon Motor Club v. Dept. of Rev.,

1970) 4 OTR 101.

733.550

ATTY. GEN. OPINIONS: Charging companies for costs ofservicing securities deposited 1966 -68, p 594.

733580

ATTY. GEN. OPINIONS: Housing authority bonds as acceptable for security deposits, 1956 -58, p 115.

768

SUPERSEDED

C Chapter 734

Rehabilitation and Liquidation of Insurers

is

ATTY. GEN. OPINIONS: Disposition of funds deposited bycasualty company upon insolvency, 1930 - 32, p 797; disposition of securities upon claim of a receiver, 1932 - 34, p 468; insolvency of insurance companies with security depositsto back up automobile membership cards as bail, 1958 - 60, p 27; duty of Secretary of State to audit accounts of receiver, 1964 - 66, p 85.

734. 220

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 1964 - 66, p 85; disposition of reservefor expenses and unclaimed distributions, 1964 - 66, p 252.

CASE CITATIONS: Ezell v. Equity Gen. Ins. Co., ( 1962) 219

F Supp 51; Korlann v. Belton, ( 1963) 236 Or 23, 384 P2d210, 386 P2d 664.

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 196466, p 85.

J

NOTES OF DECISIONS

The law of the district controls the right of the judgment

creditor to garnishee. Ezell v. Equity Gen. Ins. Co., ( 1962)

219FSupp51.

769

Chapter 734

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 196466, p 85; disposition of reservefor expenses and unclaimed distributions, 196466, p 252.

734.030

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 1964 -66, p 85.

734. 150

ATTY. GEN. OPINIONS: Disposition of reserve for ex-

penses and unclaimed distributions, 1964 -66, p 252.

734.210

NOTES OF DECISIONS

Under former similar statute a claim against securitiesdeposited had to be proved to the satisfaction of the com-

missioner, and approved by the court. Averill v. Holman, 1936) 155 Or 125, 60 P2d 968, 62 P2d 939.

Under former similar statute a verified statement of

claim, standing alone, was not sufficient proof of the validity of the demand as against attack. Id.

FURTHER CITATIONS: Bank of Calif. Nat. Assn. v. Scott,

1938) 159 Or 70, 78 P2d 342.

is

ATTY. GEN. OPINIONS: Disposition of funds deposited bycasualty company upon insolvency, 1930 - 32, p 797; disposi-

tion of securities upon claim of a receiver, 1932 - 34, p 468; insolvency of insurance companies with security deposits

to back up automobile membership cards as bail, 1958 - 60, p 27; duty of Secretary of State to audit accounts of recei-

ver, 1964 - 66, p 85.

734. 220

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 1964 - 66, p 85; disposition of reserve

for expenses and unclaimed distributions, 1964 - 66, p 252.

CASE CITATIONS: Ezell v. Equity Gen. Ins. Co., ( 1962) 219

F Supp 51; Korlann v. Belton, ( 1963) 236 Or 23, 384 P2d210, 386 P2d 664.

ATTY. GEN. OPINIONS: Duty of Secretary of State to auditaccounts of receiver, 196466, p 85.

J

NOTES OF DECISIONS

The law of the district controls the right of the judgment

creditor to garnishee. Ezell v. Equity Gen. Ins. Co., ( 1962)

219FSupp51.

769

SUPERSEDED

Chapter ,737

Rates and Rating Organizations

Chapter 737

CASE CITATIONS: State Ins. Commr. v. Allstate Ins. Co., 1960) 221 Or 371, 351 P2d 433.

ATTY. GEN. OPINIONS: Sharing commission with otherinsurance agents, 1964 -66, p 70.


737.205

NOTES OF DECISIONS

1. Under former similar statuteThe rates fixed in the schedule were presumed to be

reasonable. Ocean Acc. & Guar. Corp. v. Albina MarineIron Works, ( 1927) 122 Or 615, 260 P 229.

A contract of insurance was not void because it specified

that the rate was to be determined, since it was presumedthat the schedule rates would be applied. Id.

The company was not authorized to charge any rate otherthan the scheduled one. Id.

Stock companies were not prohibited by the statute fromreturning to their policyholders any part of their unabsorbed premiums. General Ins. Co. v. Earle, ( 1937) 156 Or

40, 65 P2d 1414.

FURTHER CITATIONS: Dolan v. Continental Cas. Co.,

1929) 131 Or 327, 279 P 855, 281 P 182, 283 P 15; Massachu-

setts Protective Assn. v. Palmer, ( 1933) 141 Or 688, 18 P2d585; Peterson v. State Farm Mut. Auto. Ins. Co., ( 1964) 238

Or 106, 393 P2d 651.

ATTY. GEN. OPINIONS: Whether insurance exchange must

adopt ratings, 1922 -24, p 380; issuance by foreign companyof policy to be given away in advertising scheme, 1924 -26, p 653; power of surety company to impose minimum premium or to return premium upon pro rata basis when can-

celed, 1938 -40, p 66; propriety of acceptance of bids forgroup insurance by the Board of Control when companyfailed to file its rates or when bid was below rates that

had been filed, 1950 -52, p 219; compulsory arbitration clausein uninsured motorist indorsements, 1960 -62, p 190; ratingbureau fees as credits in applying retaliatory tax, 1960 -62, p 449; insured' s right to appeal to commissioner questionof application of fire insurance rating schedule, 1964 -66, p168.

737.225


missioner question of application of fine insurance ratingschedule, 196466, p 168.

737.235

ATTY. GEN. OPINIONS: Insured's right to appeal to com-

missioher question of application of fire insurance ratingschedule, 1964 -66, p 168.

737.312

ATTY. GEN. OPINIONS: Validity of proposed amendmentrelating to a compulsory assigned risk plan, 1954 -56, p 81.

737.320

ATTY. GEN. OPINIONS: Rating bureau fees as not withinfees imposed by state that may be credited against tax, 1960 -62, p 450.

737.350


737.355


737.360


737.505

ATTY. GEN. OPINIONS: Insured's right to appeal to com-

missioner question of application of fire insurance ratingschedule, 196466, p 168.

737.545


missioner question of application of fire insurance ratingschedule, 1964 -66, p 168.

770

1 u

SUPERSEDED

Chapter 743

Insurance Policies

743.096


ATTY. GEN. OPINIONS: Approval of group credit insurance form with a " soundhealth" clause, 1966 -68, p 7.

743.009

ATTY. GEN. OPINIONS: Reserve required for companies

operating under a mutual assessment plan, 1964 -66, p 14; approval of group credit insurance form with a " sound - health" clause but no medical questionnaire, 1966 -68, p 7.

743.015


operating under a mutual assessment plan, 1964 -66, p 14; approval of group credit insurance form with a " soundhealth" clause, 1966 -68, p 7.

743.033

NOTES OF DECISIONS

Plaintiffs complaint alleged an interest at the time of the

five which was insurable. Fenter v. Gen. Acc. Fire and Life

Assur. Corp., ( 1971) 258 Or 545, 484 P2d 310.

rckll1_H

NOTES OF DECISIONS

1. In general

The insured is not bound by false representations madein the application if made by the insurer's agent withknowledge of the facts. Bunn v. Monarch Life Ins. Co.,

1970) 257 Or 409, 478 P2d 363; Gabel v. Time Ins. Co., ( 1970)

257 Or 241, 478 P2d 368; Scribner v. Equitable Life & Cas.

Ins. Co., ( 1971) 257 Or 602, 481 P2d 76. Bunn v. Monarch

Life Ins. Co., supra, overruling Comer v. World Ins. Co., 1957) 212 Or 105, 318 P2d 916; Reserve Life Ins. Co. v.

Howell, ( 1960) 225 Or 71, 357 P2d 400 and Martin v. Ore.

Ins. Co., ( 1962) 232 Or 197, 375 P2d 75.


Whether a fact misrepresented would reasonably haveinfluenced the company in accepting the risk or fixing thepremium determines the materiality of the misrepresentation. Mayflower Ins. Exch. v. Gilmont, ( 1960) 280 F2d

13.

The purpose of the statute was to provide certainty inthis area of law and to prevent fraud. Martin v. Ore. Ins. Co., ( 1962) 232 Or 197, 375 P2d 75.

Statutory safeguards against fraud and deception weremandatory and could not be waived. Id.


771

743.045

NOTES OF DECISIONS

The insured is not bound by false representations madein the application if made by the insurer's agent withknowledge of the facts. Bunn v. Monarch Life Ins. Co., 1970) 257 Or 409, 478 P2d 363; Gabel v. Time Ins. Co., ( 1970)

257 Or 241, 478 P2d 368. Bunn v. Monarch Life Ins. Co.,

supra, overruling Comer v. World Ins. Co., ( 1957) 212 Or

105, 318 P2d 916; Reserve Life Ins. Co. v. Howell, ( 1960)

225 Or 71, 357 P2d 400 and Martin v. Ore. Ins. Co., ( 1962)

232 Or 197, 375 P2d 75.

Ambiguous provisions in a policy should be resolved infavor of the assured. Whitlock v. United States Inter -Ins. Assn., ( 1932) 138 Or 383, 6 P2d 1088.

Ambiguities in an application prepared by the companywill be construed against the company; words susceptibleof two reasonable constructions will be given the one mostfavorable to the insured so as to avoid forfeiture. Purcell

v. Wash. Fid. Nat. Ins. Co., ( 1932) 141 Or 98, 16 P2d 639.

It is the duty of the applicant to make truthful answersto the questions and to make reasonable use of his faculties

in endeavoring to understand them, but it is also incumbentupon the company so to frame its questions that they willbe free from misleading interpretations. Id.

The fact that an applicant, who already possesses a policywhich partly overlaps the protection sought, fails to disclosethat fact in answering one of the questions will not releasethe insurer from liability unless the question was specificenough to induce in the applicant' s mind a reasonable belief

that mention of such policy was contemplated. Id. Where one is asked to sign an instrument, he is bound

by the instrument he signs in the absence of evidenceshowing that he was misled or that there were other circumstances excusing him from scrutinizing the instrument. Knappenberger v. Cascade Ins. Co., ( 1971) 259 Or 392, 487

P2d 80.

Statements made in an oral application cannot be trans-

formed into warranties simply by designating them as suchin the policy. Williams v. Pac. States Fire Ins. Co., ( 1926)

120 Or 1, 251 P 258. Distingulshed in Comer v. World Ins. Co., (1957) 212 Or 105, 318 P2d 916.

In order to invalidate a policy of accident insurance, incorrect statements made in the application as to the applicant's occupation and income must be material and must

have been wilfully made with intent to deceive. Eaid v. Nat. Cas. Co., ( 1927) 122 Or 547, 259 P 902. Distinguished In

Comer v. World Ins. Co., ( 1957) 212 Or 105, 318 P2d 916.

Where an applicant for health and accident insurance

answered " none" to a question as to what other health oraccident insurance he carried although in fact a certain life

policy had an incidental.disability provision, the policy wasnot avoided or the answer considered false. Purcell v. Wash.

Fid. Nat. Ins. Co., ( 1932) 141 Or 98, 16 P2d 639.

FURTHER CITATIONS: Medford v. Pac. Nat. Fire Ins. Co., 1950) 189 Or- 617, 219 P2d 142, 222 P2d 407; Scribner v.

Equitable Life & Cas. Ins. Co., ( 1971) 257 Or 602, 481 P2d

76.

SUPERSEDED

743.048

ATTY. GEN. OPINIONS: Authority of agents of fire insurance companies to write all -risk automobile insurance,

1924 -26, p 249; whether automobile dealer may be licensedas agent to write own fire and auto insurance, 1924 -26, p332; approval of group credit insurance form with a " soundhealth" clause, 1966 -68, p 7.

743.048

NOTES OF DECISIONS

A policy stipulation providing that only the courts of aparticular foreign jurisdiction are competent " for the fulfillment of this contract" was void. State v. Tazwell, ( 1928)

125 Or 528, 266 P 238, 59 ALR 1436.

743.054

NOTES OF DECISIONS


A stock company policy containing a clause providingfor distribution of earnings to holders of participating policies did not violate the statute General Ins. Co. v. Earle, 1937) 156 Or 40, 65 P2d 1414.

The fact that a policy contained a clause which providedthat the company could from time to time distribute toholders of its participating policies " such sums out of itsearnings as in its judgment is proper" did not render it

objectionable for failure to specify on its face the amountof the premium required to be paid. Id.

AM. GEN. OPINIONS: Validity of policies and indorsements specifying profit sharing, 1928 -30, p 280.

743.072

CASE CITATIONS: Walker v. Fireman' s Fund Ins. Co.,

1925) 114 Or 545, 234 P 542; Medford v. Pac. Nat. Fire Ins.

Co., ( 1950) 189 Or 617, 219 P2d 142, 222 P2d 407.

AM. GEN. OPINIONS: Whether marine risks include

docks, 1936 -38, p 54; authority to refuse to renew licenseof a company which has issued policies in violation of law, 1936 -38, p 181; combining life insurance and medical expense benefits in one policy, 1958 -60, p 3.

743.093

NOTES OF DECISIONS

Prior to the 1967 amendment, insured had no duty, afternotice of loss, to furnish proof of loss, until the companyhad furnished him with forms. Higgins v. Ins. Co. of No. America, ( 1970) 256 Or 151, 469 P2d 766.

743.099

NOTES OF DECISIONS

This section applies when a person takes out insurance

with his own funds, but does not apply to insurance takenout by him with funds of another to which he is not entitled. Jansen v. Tyler, ( 1935) 151 Or 268, 47 P2d 969, 49 P2d 372.

A trust will be impressed on insurance effected by afiduciary with funds wrongfully taken from his cestui quetrust. Id.

This section should be given a liberal construction. Mil -

waukie Constr. Co. v. Glens Falls Ins. Co., ( 1968) 389 F2d

364.

LAW REVIEW CITATIONS: 12 OLR 267; 17 OLR 67; 37OLR 363.

743. 102


743. 114

NOTES OF DECISIONS

1. In general

1) Validity2) Construction and purpose

2. Application

3. Conditions governing allowance4. Pleading5. Allowance of fee

1) In trial court

2) In Supreme Court

3) Particular fees allowed

1. In general

1) Validity. This section was not unconstitutional asviolating the prohibition against class legislation under Ore. Const. Art. I § 20. Spicer v. Benefit Assn., ( 1933) 142 Or 574,

17 P2d 1107, 21 P2d 187.

The 1931 amendment to this section relating to allowanceof attorney' s fees in the Supreme Court was sufficientlyindicated within the title thereof and not unconstitutional

under Ore. Const. Art. IV §20. Id.

Allowance of the fee herein authorized amounts to noth-

ing more than the imposition of an item of costs so thatapplication of the section to actions arising out of pre -existing policies does not violate the constitutional provisionsprohibiting impairment of contract. Id.

2) Construction and purpose. The language of this sec-

tion is plain and its meaning clear so that constructionthereof is not permitted. School Dist. 106 v. New Amster-

dam Cas. Co., ( 1930) 132 Or 673, 288 P 196; Whitlock v.

United States Inter -Ins. Assn., ( 1932) 138 Or 383, 6 P2d 1088.

This section is compensatory rather than penal. Hageyv. Mass. Bonding & Ins. Co., ( 1942) 169 Or 132, 126 P2d

836, 127 P2d 346; Zurich Ins. Co. v. Sigourney, ( 1960) 278F2d 826.

This section should be liberally construed. Staff Jennings, Inc. v. Fireman' s Fund Ins. Co., ( 1962) 218 F Supp 112; Continental Cas. Co. v. Reinhardt, ( 1967) 284 F Supp 687.

A suit for a declaratory judgment is not an action againstan insurance company within the meaning of this section. Continental Cas. Co. v. Reinhardt, ( 1967) 284 F Supp 687; Hardware Mut. Cas. Co. v. Farmers Ins. Exch., ( 1970) 256

Or 599, 474 P2d 316. But see Foles v. United States Fid. Guar. Co., ( 1971) 259 Or 337, 486 P2d 537.

The purpose of this section is not to postpone litigation,

but to require the company to pay reasonable attorney' sfees for unnecessary and wrongful delay. Murray v. Fire- men' s Ins. Co., ( 1927) 121 Or 165, 254 P 817.

The object of this section was to discourage expensive

and lengthy litigation. Dolan v. Continental Cas. Co., ( 1930) 133 Or 252, 289 P 1057.

The word tender used herein has the meaning outlinedin ORS 20. 180. Id.

The provisions of this section should be given the same

consideration they would be accorded if they were a partof the contract of insurance. Title & Trust Co. v. UnitedStates Fid. & Guar. Co., ( 1932) 138 Or 467, 1 P2d 1100, 7

P2d 805. But see Tierney v. Safeco Ins. Co. of America, 1963) 216 F Supp 590. The law of the forum controls the allowance of attorney's

fees. Horwitz v. N.Y. Life Ins. Co., ( 1935) 80 F2d 295.

The statute contemplates an action by any person. StaffJennings, Inc. v. Fireman' s Fund Ins. Co., ( 1962) 218 F Supp112.

This section applies in an action on a bond given by a

772

SUPERSEDED

contractor to• protect those supplying him with labor andmaterial. Travelers Indem. Co. v. United States ex rel. W. Steel Co., ( 1966) 362 F2d 896.

The purpose of this section is to encourage the settlement

of claims and discourage the unreasonable rejection of

claims by insurers. Heis v. Allstate Ins. Co., ( 1968) 248 Or

636, 436 P2d 550.

This section allows recovery of attorney fees in a casewhere the assignee of insured brings the action. Groce v. Fid. Gen. Ins. Co., ( 1968) 252 Or 296, 448 P2d 554.

It is the intent of this section that " plaintiff' include

defendant" who files a counter claim or cross - complaint.

Hardware Mut. Cas. Co. v. Farmers Ins. Exch., ( 1970) 256

Or 599, 474- P2d 316.

Recovery of attorney fees is not defeated by insurer'sgood faith in failure to settle; the statute is compensatory, not penal. Id.

A shipping receipt issued by an express company to ashipper is not a policy of insurance within the meaning ofthis section. Richardson v. Ry. Express Agency, ( 1971) 258Or 170, 482 P2d 176.

Where the insured is the plaintiff and seeks both a decla-

ration of coverage and a judgment, the insured is entitled

to attorney fees under this section. Foles v. United StatesFid. & Guar. Co., ( 1971) 259 Or 337, 486 P2d 537.

2. ApplicationThis section was not intended to cover actions brought

by one insurance company as subrogee of rights againstanother insurer. General Acc. Fire & Life Assur. Corp. v. Continental Cas. Co., ( 1961) 287 F2d 464; Zidell v. Travelers

Indem. Co., ( 1967) 264 F Supp 496. General Acc. Fire & Life

Assur. Corp. v. Continental Cas. Co., supra, rev'g 179 FSupp 535.

An attorney' s fee is not authorized in an action broughtby an insurance company to recover premiums. Ocean Acc.

Guar. Corp. v. Albina Marine Iron Works, ( 1927) 122 Or615, 260 P 229.

The fact that an action upon a policy of casualty insurance is prosecuted on a contingent fee does not preclude

allowance of an attorney' s fee. Denley v. Ore. Auto. Ins. Co., ( 1935) 151 Or 42, 47 P2d 245, 946.

A fee may be allowed for services rendered by a districtattorney in an action brought in the name of the state onthe bond of a public officer. State v. Claypool, ( 1934) 145Or 615, 28 P2d 882.

A fee may be allowed in an action on a real estatebroker' s bond. Richer v. Burke, ( 1934) 147 Or 465, 34 P2d

317.

This section applies to policies issued by inter - insuranceorganizations. Whitlock v. United States Inter - Insur. Assn.

1932) 138 Or 383, 6 P2d 1088.

Allowance of an attorney' s fee in a workmen' s compensation proceeding is not contemplated by this section. Davisv. State Ind. Acc. Comm., ( 1937) 156 Or 393, 64 P2d 1330,

66 P2d 279, 68 P2d 118.

This section authorizes allowance of attorney's fees uponappeal of an action on a beneficiary certificate issued priorto the 1931 amendment relating to attorneys fees in theSupreme Court. Lane v. Brotherhood, ( 1937) 157 Or 667, 73P2d 1396.

This section was not intended to cover award of fees to

insured in action for declaratory judgment determiningliability. Breier v. Gladden, ( 1964) 229 F Supp 823.

This was not intended to cover action by insured fordeclaratory judgment determining liability of underwriterssubscribing certificates of third party property damage insurance. Close -Smith v. Conley, ( 1964) 230 F Supp 411.

This section permits the allowance of attorney fees inan action on a voluntary workmen's compensation policy. Shore v. St. Paul Fire & Marine Ins. Co., ( 1965) 242 F Supp164.

743. 114

In an action upon Miller Act Payment Bond, recovera-

bility of attorney fees is governed by the law of the statewherein the bond was issued. United States ex rel. WesternSteel Co. v. Travelers Indem. Co., ( 1965) 37 FRD 322.

3. Conditions governing allowanceThere can ordinarily be no allowance of attorney' s fees

if no proof of loss has been filed. Title & Trust Co. v. United

States Fid. & Guar. Co., ( 1934) 147 Or 255, 32 P2d 1035;

Breier v. Gladden, ( 1964) 229 F Supp 823. A fee may be recovered regardless of the period of delay

referred to in this section if the defendant waived proof

of loss before the action was commenced. Eaid v. Nat. Cas. Co., ( 1927) 122 Or 547, 259 P 902.

An attorney's fee may be allowed though no proof ofloss was made, if the policy does not require such proofand judgment is not entered until more than six months

after commencement of the action. State v. Claypool, ( 1934)

145 Or 615, 28 P2d 882.

This section restricts the recovery of an attorney' s feeto those cases wherein a final judgment has been entered.

United States Fid. & Guar. Co. v. Zidell- Steinberg Co., 1935) 151 Or 538, 50 P2d 584, 51 P2d 687.

An appellate court can allow attorney' s fee only if thetrial court allowed the fee and the judgment is affirmed

by the appellate court. American Sur. Co. v. Fischer Whse. Co., ( 1937) 88 F2d 536.

Recovery of attorney' s fee was allowed from surety company where surety company and county clerk were joinedin the same action. Esselstyn v. Casteel, ( 1955) 205 Or 344, 286 P2d 665, 288 P2d 214, 215.

4. PleadingThe correct way to ask for attorneys' fees in an action

that was filed before expiration of the period allowed for

settlement is by filing a supplemental complaint after theperiod has expired, and not by amendment of the originalcomplaint at the trial. Walker v. Fireman' s Fund Ins. Co.,

1925) 114 Or 545, 234 P 542; Johnson v. Prudential Life Ins.

Co., ( 1927) 120 Or 353, 252 P 556; Murray v. Firemen' s Ins. Co., ( 1927) 121 Or 165, 254 P 817.

It is not error to award an attorney's fee, even thoughthe allegation in respect thereto was premature, if the de-

fendant neither demurs to it nor moves to strike it but,

on the contrary, joins issue thereon. Murray v. Firemen' sIns. Co., ( 1927) 121 Or 165, 254 P 817.

A complaint which alleged that demand had been made

more than six months prior to the action, that the defendant

neglected and refused to pay and that a certain sum wasreasonable attorney's fees was sufficient. School Dist. 106v. New Amsterdam Cas. Co., ( 1930) 132 Or 673, 288 P 196.

Letters sent to the company's agent which stated theamount of loss and made demand for reimbursement weresufficient evidence of proper demand. Id.

5. Allowance of fee

1) In trial court. A defendant that admits its liability onretrial after reversal of a judgment in favor of the plaintiff

thereby renders itself liable for attorney' s fee. Dolan v. Continental Cas. Co., ( 1930) 133 Or 252, 289 P 1057.

Error in instructing the jury that in fixing the attorney'sfee they may take into consideration the possibility of anappeal will not warrant a reversal, if the fee allowed is not

exorbitant and, in fact, less than what the testimony wouldhave permitted. Johnson v. Prudential Life Ins. Co., ( 1927)

120 Or 353, 252 P 556.

Attorney fees incurred in declaratory judgment proceeding to determine coverage of insurance policy cannot becollected under this section in subsequent action to recover

for damages under the policy. Hollopeter v. Ore. Mut. Ins. Co., ( 1970) 255 Or 73, 464 132d 316.

773

SUPERSEDED

743. 150

The amount of attorney fees is a question of fact to bedetermined by the trial court. Higgins v. Ins. Co. of N. America, ( 1970) 256 Or 151, 469 132d 766.

2) In Supreme Court. Prior to the amendment of 1931,

the courts held that this section did not authorize an award

for services rendered in the Supreme Court. Lewis v. Con- tinental Cas. Co., ( 1931) 135 Or 170, 295 P 450; Spicer v.

Benefit Assn., ( 1933) 142 Or 574, 17 P2d 1107, 21 P2d 187.

A large allowance by the trial court does not abrogatethe plaintiff's right to an allowance in the Supreme Court. Bertschinger v. N.Y. Life Ins. Co., ( 1941) 166 Or 307, 111

P2d 1016.

In affirming a judgment for the plaintiff in an action onan indemnity bond, the Supreme Court may award himadditional attorney' s fees. Fred Christensen, Inc. v. HansenConstr. Co., ( 1933) 142 Or 549, 21 P2d 195.

Where the trial court has allowed attorney' s fees and thejudgment is affirmed, federal appellate court will also allow

fees. Michigan Millers Mut. Fire Ins. Co. v. Grange Oil Co., 1949) 175 F2d 544. If the insured is the appellant on appeal he is not entitled

to attorney' s fees under subsection ( 2) of this section. Sch- weiger v. Beneficial Life Ins. Co., ( 1955) 204 Or 292, 282

P2d 621.

The immunity of the United States against liability forattorney fees does not extend to defendant corporation. Baker v. Fed. Crop Ins. Corp., ( 1965) 241 Or 609, 407 P2d

841, cert. dis., 385 U.S. 801, 86 S Ct 1459, 16 L Ed 2d 538.

Where consolidated actions to recover on marine insur-

ance policies were affirmed on appeal, an additional sum

of $150 was allowed in each case as attorney's fees on theappeal. Shaver Forwarding Co. v. Eagle Star Ins. Co., ( 1945)

177 Or 410, 162 P2d 789.

3) Particular fees allowed. The Supreme Court allowed

500 on a second appeal in which a judgment for $3, 400

was affirmed although the trial court allowed $ 500 also.

Purcell v. Wash. Fid. Nat. Ins. Co., ( 1934) 146 Or 475, 30

P2d 742.

A fee of $250 was not excessive for services rendered inboth the trial court and the Supreme Court, though the

judgment proper was only for $376.32 and interest. Statev. Employes' Hosp. Assn., ( 1937) 157 Or 618, 73 P2d 693.

Where the amount involved was $ 1000 and interest, a

total fee of $450 for services was reasonable and allowed.

Trevathan v. Mut. Life Ins. Co., ( 1941) 166 Or 515, 113 132d621.

Where the trial court allowed $ 1000, the Supreme Court

allowed $ 50 although the defendant argued the first fees

were grossly excessive. Bertschinger v. N.Y. Life Ins. Co., 1941) 166 Or 307, 111 132d 1016. An additional fee of $350 was allowed for services ren-

dered in the Supreme Court where the amount involvedwas $ 7, 500. Mock v. Glens Falls Indem. Co., ( 1957) 210 Or

71, 309 P2d 180.

FURTHER CITATIONS: Rosebraugh v. Tigard, ( 1927) 120

Or 411, 252 P 75; Gibbs v. First Nat. Ins. Co., ( 1935) 151

Or 241, 47 P2d 943; Bird v. Cent. Mfg. Ins. Co., ( 1942) 168

Or 1, 120 P2d 753; Hefford v. Metropolitan Life Ins. Co.,

1944) 173 Or 353, 144 P2d 695; New York Life Ins. Co. v.

Lee, ( 1956) 232 F2d 811; Borglund v. World Ins. Co., ( 1957)

211 Or 175, 315 P2d 158; Roberts v. Union Ins. Socy., ( 1958)

215 Or 183, 332 P2d 600; Bankers Union Life Ins. Co. v.

Montgomery, ( 1958) 261 F2d 852; Brown v. Mut. BenefitHealth & Acc. Assn., ( 1960) 222 Or 165, 352 P2d 748, 83ALR2d 694; State v. E. H. White Co., ( 1960) 224 Or 483,

356 P2d 943; Beitey v. Benefit Assn. of Ry. Employes, ( 1961) 226 Or 522, 360 P2d 620; Zeh v. Nat. Hosp. Assn., ( 1963)

233 Or 221, 377 P2d 852; Oregon Farm Bureau v. Thompson,

1963) 235 Or 162, 378 P2d 563; Ladd v. Gen. Ins. Co., ( 1964)

236 Or 260, 387 P2d 572; First Nat. Bank v. Malady, ( 1965) 242 Or 353, 408 P2d 724; Kennedy v. Pac. Indem. Co., ( 1967)

267 F Supp 16; New York Life Ins. Co. v. Hannon, ( 1967) 280 F Supp 291; Williams v. Stockman' s Life Ins. Co., ( 1968)

250 Or 160, 441 P2d 608; State ex rel. Hawkins- Hawkins Co.

v. Travelers Indem. Co., ( 1968) 250 Or 356, 442 P2d 612; StateFarm Mut. Auto. Ins. Co. v. Brewer, ( 1968) 406 F2d 610;

Pringle v. Robertson, ( 1970) 258 Or 389, 465 P2d 223, 483

P2d 814; Richardson v. Ry. Express Agency, ( 1971) 258 Or170, 482 P2d 176.

743. 150

NOTES OF DECISIONS

Under a former similar statute the courts did not favor

narrow and unreasonable interpretations of the provisions

of an insurance policy. Stipcich v. Metropolitan Life Ins. Co., ( 1927) 277 US 311, 48 S Ct 512, 72 L Ed 895.

FURTHER CITATIONS: Mut. Life Ins. Co. v. Muckler,

1933) 143 Or 327, 21 P2d 804; Hall v. Metropolitan Life Ins.

Co., ( 1934) 146 Or 32, 28 P2d 875; Union States Life Ins.

Co. v. Bernert, ( 1939) 161 Or 44, 87 P2d 774; Christiansenv. Prudential Ins. Co., ( 1963) 235 Or 93, 384 P2d 142; Green

v. Beneficial Standard Life Ins. Co., ( 1963) 235 Or 282, 383

P2d 770; Clough v. Prudential Ins. Co., ( 1963) 235 Or 625,

386 P2d 464; Peterson v. State Farm Mut. Auto. Ins. Co.,

1964) 238 Or 106, 383 P2d 651.

ATTY. GEN. OPINIONS: Regulation of provisions allowingparticipation in divisible surplus, 1964 -66, p 61.

743. 153

ATTY. GEN. OPINIONS: Income savings bonds as life in-

surance, 1926 -28, p 316.

743. 168

NOTES OF DECISIONS

Under a former similar statute, telephone information

given by the physician of the applicant to the insurancecompany's medical examiner was not available in defenseof a claim. Northwestern Mut. Life Ins. Co. v. Wiggins,

1926) 15 F2d 646.

743. 174

NOTES OF DECISIONSUnder former similar statute where there was no ambi-

guity, a policy was not subject to oral explanation orvariance. Morford v. Calif. W. States Life Ins. Co., ( 1941)

166 Or 575, 113 P2d 629.

A former similar statutory provision, which provided thatthe policy constituted the entire contract, did not preventapplication of the general rule which made the contract

voidable if the applicant failed to disclose conditions within

his knowledge which affected the risk. Stipcich v. Metro- politan Life Ins. Co., ( 1927) 277 US 311, 48 S Ct 512, 72

L. Ed 895.

743. 177

NOTES OF DECISIONS


It was presumed that the answers made by the insuredto queries contained in the application were true. North- western MuL Life Ins. Co. v. Wiggins, ( 1926) 15 F2d 646.

That false statements by the insured were knowinglymade by him had to be proved by the insurer to avoid thepolicy. Mutual Life Ins. Co. v. Muckler, ( 1933) 143 Or 327, 21 P2d 804; Northwestern Mut. Life Ins. Co. v. Wiggins, 1926) 15 F2d 646.

The burden of proving that the insured' s statements were

774

SUPERSEDED

C false rested on the insurer, and its proof had to be clear,

cogent and convincing. Northwestern Mut. Life Ins. Co. v. Wiggins, ( 1926) 15 F2d 646.

Equity would not accord relief to an insurance companybecause the answers to some of the questions on the appli-

cation form were false, if the insured showed that the

insurer's agent did not ask him the questions, but wrotein the answers on his own initiative. Simmons v. Wash. Fid. Nat. Ins. Co., ( 1931) 136 Or 400, 299 P 294.

743.186

NOTES OF DECISIONS

Under former similar statute, a policy loan did not createthe ordinary relation of debtor and creditor between thecompany and the insured, but was an advancement on thepolicy without any personal obligation as to repayment. Jansen v. Tyler, ( 1935) 151 Or 268, 47 P2d 969, 49 P2d 372.

743. 189

NOTES OF DECISIONS

Under former similar statute, upon recovery of a judgment on a contested policy, interest was properly allowedfrom the date of the expiration of the period set forth in

statute on nonforfeiture. Security Say. & Trust Co. v. Com- mercial Cas. Ins. Co., ( 1934) 147 Or 193, 32 P2d 582, 93 ALR

409.

743.225

CASE CITATIONS: Hall v. Metropolitan Life Ins. Co., ( 1934)

146 Or 32, 28 P2d 875; Peterson v. State Farm Mut. Auto. Ins. Co., ( 1964) 238 Or 106, 393 P2d 651.

ATTY. GEN. OPINIONS: Authority of commissioner toprohibit use of policy, 1962 -64, p 427.

743.303 to 743.345

ATTY. GEN. OPINIONS: Five -year limitation on credit life

insurance applied to group credit life insurance, 1958 -60, p33; group credit policy issued with sale of shares in a mutualinvestment fund, 1960 -62, p 94.

743.402 to 743.498

NOTES OF DECISIONS


If the insurer denied liability on grounds other than thoserelated to defects in the notice, compliance with the notice

and proof of loss requirements was deemed waived. Tra-

velers Ins. Co. v. Peerless Ins. Co., ( 1961) 287 F2d 742.

Voiding a voidable policy was not a cancellation underformer ORS 741. 130 ( 2) ( h). Martin v. Ore. Ins. Co., ( 1962)

232 Or 197, 373 P2d 75.

FURTHER CITATIONS: Headley v. United Fid. Hosp. Assur. Co., ( 1963) 235 Or 302, 384 P2d 1007; Peterson v. State

Farm Mut. Auto. Ins. Co., ( 1964) 238 Or 106, 393 P2d 651.

743.405

CASE CITATIONS: Peterson v. State Farm Mut. Auto. Ins.

Co., ( 1964) 238 Or 106, 393 P2d 651.

743.417

NOTES OF DECISIONS

A former similar statute prohibited the application ofpayments to premiums after expiration of the grace period.

Kennedy v. Pac. Ihdem. Co., ( 1967) 267 F Supp 16.

775

743.603

743.561

ATTY. GEN. OPINIONS: Investment plan with life insur-

ance protection as credit insurance, 1956 -58, p 147; blanketpolicy of group credit life insurance as insurance not subjectto five -year limitation, 1958 -60, p 33; regulation of debtcancellation contracts executed by national banks, 1964 -66, p 59.

743.564


operating under a mutual assessment plan, 1964 -66, p 14; regulation of debt cancellation contracts executed by national banks, 1964 -66, p 59.

743.585

ATTY. GEN. OPINIONS: Regulation of debt cancellation

contracts executed by national banks, 1964 -66, p 59.

743.603 to 743.681

NOTES OF DECISIONS


Patrons of husbandry fire insurance associations were notsubject to the pre -1967 insurance code. Rosebraugh v. Ti-

gard, ( 1927) 120 Or 411, 252 P 75.

The state had a general power to exclude, restrict or

regulate foreign insurance companies seeking to do businesswithin its borders but the exercise of such power was sub-

ject to all applicable state and federal constitutional provi-

sions. Herbring v. Lee, ( 1928) 126 Or 588, 269 P 236, 60 ALR1165.

Except for the section relating to standard fire policyprovisions, the insurance code enacted in 1917 completelycovered the fire branch of the insurance business. Geddesv. Ore. Grange Fire Relief Assn., ( 1934) 147 Or 275, 32 P2d

774.

ATTY. GEN. OPINIONS: Extent of insurer' s right to subro-

gation under loss payable to mortgagee clause, 1922 -24,

p 757; inspection of premises damaged by fire by the StateFire Marshal, 1924 -26, p 523; whether a misstatement bymortgagor in sworn claim is perjury, 1930 -32, p 96.

743. 603


The public policy of the state is violated when one procures fire insurance upon property in which he has nointerest. Yoshida v. Sec. Ins. Co., ( 1933) 145 Or 325, 26 P2d1082.

A month by month tenant of buildings who used suchbuildings for hog feeding had an insurable interest in thebuildings. Id.


A person had an insurable interest in property only whenconditions were such that he would suffer loss or damage

by the destruction of the property. Oatman v. Bankers' FireRelief Assn., ( 1913) 66 Or 388, 133 P 1183, 134 P 1033.

A married man had no insurable interest in his wife's

property in this state. Id. A policy of fire insurance on an automobile was voided

where the insured sold and delivered the automobile to

another without the assent of the insurer indorsed on the

policy. Cranston v. Calif. Ins. Co., ( 1919) 94 Or 369, 185 P

292.

A person in possession of property as trustee could insure

SUPERSEDED

743.606

it in his own name. Pacific State Fire Ins. Co. v. RowanMotor Co., ( 1927) 122 Or 665, 260 P 441.

In an action on an insurance policy, plaintiff had to allegeand prove that the insured had an insurable interest in the

property, both at the time of making the contract of insurance and at the time of the loss. Armbrust v. Travelers Ins. Co., ( 1962) 232 Or 617, 376 P2d 669.

743.606

NOTES OF DECISIONS


The court had authority to reform a policy for mutualmistake. Boardman v. Ins. Co., ( 1917) 84 Or 60, 164 P 558;

Spexarth v. R. I. Ins. Co., ( 1926) 118 Or 22, 245 P 515.

Although a fire insurance policy required payment of loss, an agreement by the insurer to loan insured the amountof the loss was valid. Condor Inv. Co. v. Pac. Coca -Cola

Bottling Co., ( 1962) 211 F Supp 671; Waterway TerminalsCo. v. P.S. Lord Mechanical Contractors, ( 1965) 242 Or 1,

406 P2d 556; 13 ALR 3d 1.

Where the insured did not read the policy delivered tohim, he was not precluded from having the policy reformedwhere he had explained to the agent the nature of his

interest in the property and the agent omitted to insert theproper rider. Gregan v. Northwestern Ins. Co., ( 1917) 83 Or

278, 163 P 588.

A clause which in general terms prohibited assignment

of the policy before loss did not apply to a conditionaltransfer made to a creditor to give him a lien on the pro-

ceeds of the policy in event of loss. Sheridan v. Pac. StatesFire Ins. Co., ( 1923) 107 Or 285, 212 P 783.

A single contract of insurance could contemplate several

different policies, as where insurance covering a numberof articles was effected by insertion in the main contractof a series of " covering notes." Walker v. Fireman' s FundIns. Co., ( 1925) 114 Or 545, 234 P 542.

743.612

NOTES OF DECISIONS


The terms " fraud" and " false swearing" had the sameapplication. Willis v. Horticultural Fire Relief, ( 1914) 69 Or

293, 137 P 761.

False swearing had to have been knowing and wilful toavoid the policy, but it need not have been done with afraudulent intent. Id.

To avoid the policy for fraud, the insurer had to showthat the statement complained of was false, that it was

relied upon, and that it caused injury. Waller v. City ofN.Y. Ins. Co., ( 1917) 84 Or 284, 164 P 959, Ann Cas 1918C,

139.

An insured who made a knowingly false statement ofhis losses thereby lost standing in court as to all claimsunder the policy. Willis v. Horticultural Fire Relief, ( 1914) 69 Or 293, 137 P 761.

Misrepresentation of the value of property covered bythe policy was not necessarily fatal if the property was dulyexamined by the agent of the insurer. Walker v. Fireman' sFund Ins. Co., ( 1925) 114 Or 545, 234 P 542.

If a misrepresentation was material the insurer need notestablish as a part of its defense that it suffered or would

suffer a pecuniary loss as a result of the misrepresentation. Hendricksen v. Home Ins. Co., ( 1964) 237 Or 539, 392 P2d

324.

743.633

NOTES OF DECISIONS

Under a former similar statute, a provision in the policyrequiring notice and proof of loss, being for the benefit of

the insurer, could be waived. Heidenreich v. Aetna Ins. Co., 1894) 26 Or 70, 37 P 64.

743.636

NOTES OF DECISIONS

Under a former similar statute, cancellation provisions

of the statute did not apply to automobile insurance policieswritten by a fire insurance company. Medford v. Pac. Nat. Fire Ins. Co., ( 1950) 189 Or 617, 219 P2d 142, 222 P2d 407.

743.639

NOTES OF DECISIONS

1. Under former similar statuteWhen the insurer at the request of the insured inserted

a clause making the loss payable to the mortgagee, a contractual relation was entered into by. the insurer and mortgagee._ Meader v. Farmers' Mut. Fire Relief Assn., ( 1931)

137 Or 111, 1 P2d 138.

A mortgagee of the insured property to whom the losswas made payable could recover despite a breach of condi-

tion by the mortgagor; and this rule applied to policiesissued by both stock and mutual organizations. Id.

The " loss payee" did not claim as an assignee of the

policy, but merely as an appointee to collect the insurance. Armbrust v. Travelers Ins. Co., ( 1962) 232 Or 617, 376 P2d

669.

743.648


It was the duty of each of the parties to select appraiserswho were impartial. Stemmer v. Scottish Ins. Co., ( 1898)

33 Or 65, 49 P 588, 52 P 498. Objections to the qualifications of an appraiser had to

be made at the time of appointment or be deemed to bewaived. Id.

The fact that an appraiser selected by the insurer hadacted for it on other occasions was not sufficient to rendersuch appraiser incompetent to act. Id.

The award of the appraisers was conclusive on bothparties in the absence of fraud or other misconduct on the

appraisers' parts. Id.

745.660


The estoppel of the insurer to set up the defense of thelimitations does not endure forever but merely suspendsthe limitation until the estoppel is removed. Gilbert v. Globe

Rutgers Fire Ins. Co., ( 1919) 91 Or 59, 174 P 1161, 178

P 358; Cody v. Ins. Co. of Ore., ( 1969) 253 Or 587, 454 P2d859.


The insurer could by its conduct estop itself from settingup the defense that the action was not brought within thetime limited in the provisions of the policy. Kimball v. Horticultural Fire Relief, ( 1916) 79 Or 133, 154 P 578.

An action to recover damages for failure to deliver a

policy conforming to the oral contract of the parties wastoo late when brought 15 months after loss of the propertysought to be protected. Greenberg v. German Am. Ins. Co., 1917) 83 Or 662, 160 P 536, 163 P 820.

Commencement of an action within the limitation in the

statute was governed by ORS 12.030. Bell v. Quaker CityFire & Marine Ins. Co., ( 1962) 230 Or 650, 370 P2d 219.

776

SUPERSEDED

0

17

743.669


743.672

NOTES OF DECISIONS

Liability to pay an assessment is a matter of contract, and only members who have assumed a contract obligationto pay assessments can be liable therefor. Beaver State Ins. Assn. v. Smith, ( 1820) 97 Or 579, 192 P 798; Rosebraughv. Tigard, ( 1927) 120 Or 411, 252 P 75; Johnson v. Sch. Dist. 1, ( 1929) 128 Or 9, 270 P 764, 273 P 386.

Members who have nonassessable policies on the cash

premium plan and have duly paid the premium cannot beassessed for the purpose of paying losses or expenses. Beaver State Ins. Assn. v. Smith, ( 1920) 97 Or 579, 192 P

798; Johnson v. Sch. Dist. 1, ( 1929) 128 Or 9, 270 P 764,

273 P 386.

The right to fix the contingent and mutual liability ofmembers is not confined by this section to domestic companies. Johnson v. Sch. Dist. 1, ( 1929) 128 Or 9, 270 P 764,

273 P 386.

A foreign mutual company may issue nonassessable policies so long as it maintains the assets and surplus requiredby statute. Id.

The cash premium plan is not in conflict with the theoryof mutual insurance. Id.

AM. GEN. OPINIONS: When exemption from assessment

on nonassessable policies ceases, 1922 -24, p 628; contingentliability of members, 1938-40, p 238.

743.675

NOTES OF DECISIONS

A mutual insurance organization may, by its course ofdealing, preclude itself from asserting forfeiture for delinquency in payment of assessments. Rosebraugh v. Tigard,

1927) 120 Or 411, 252 P 75.

A waiver of the right to enforce forfeiture may resultfrom extending the time for payment of assessments. Id.

All persons who become members of mutual insurance

organizations bind themselves to pay all assessments whendue. Geddes v. Ore. Grange Fire Relief Assn., ( 1934) 147

Or 275, 32 P2d 774.

743.681

CASE CITATIONS: Geddes v. Ore. Grange Fire Relief Assn., 1934) 147 Or 275, 32 P2d 774.

743.708

ATTY. GEN. OPINIONS: Certificates, purporting to evidence fractional interest in notes and mortgages securingsuch notes, as secured obligations, 1966 -68, p 22.

743.732

NOTES OF DECISIONS

The sole requirement for a surety company to justify isto exhibit its certificate of authority to do business withinthe state or a certified copy thereof. In re First & Farmers

Nat. Bank, ( 1933) 145 Or 150, 26 P2d 1103.

AM. GEN. OPINIONS: Whether writing of undertakingsin criminal cases is surety business, 1936 -38, p 693; procuringofficial bond of justice of peace from company for whichthe justice is the agent, 1964 -66, p 105; director of soil and

777

743.759

water conservation district as surety on treasurer' s bond, 1968) Vol 34, p 298.

743.735

CASE CITATIONS: Bell v. Hanover Fire Ins. Co., ( 1923)

107 Or 513, 214 P 340, 215 P 171; Fischer v. Bayer, ( 1923)

108 Or 311, 210 P 452, 211 P 162, 216 P 1028; Gray v. Ham- mond Lbr. Co., ( 1925) 113 Or 570, 232 P 637, 233 P 561, 234

P 261; Osburn v. DeForce, ( 1927) 122 Or 360, 257 P 685, 258

P 823; Herring v. Springbrook Packing Co., ( 1956) 208 Or

191, 299 P2d 604, 300 P2d 473.

743.738

ATTY. GEN. OPINIONS: Authority of county court to paypremium of deputy sheriffs bond, 1928 -30, p 180; authorityof state agency to approve claim for premium paid for bondgiven to secure state against loss on warrant, 1930 -32, p160; surety bond as official undertaking of justice of peaceor constable and payment of premiums thereon, 1948 -50,

p 46; procuring official bond of justice of peace from company for which the justice is the agent, 1964 -66, p 105.

743.741

NOTES OF DECISIONSThe last clause of subsection ( 3) is not to be construed

as permitting a company that has qualified to do a suretybusiness within this state to write any other kind of insurance it chooses. Earle v. Holman, ( 1936) 154 Or 578, 55 P2d

1097, 61 P2d 1103.

743.744

ATTY. GEN. OPINIONS: Cancellation of bond which is no

longer required, 1932 -34, p 211; whether salesman' s bondgiven in favor of the state may be canceled before expiration of salesman' s license, 1944 -46, p 94; applicability towarehousemen' s bond, 1956 -58, p 249.

743.747

AM. GEN. OPINIONS: Cancellation of bond of Oregon

National Guard officers, 1924 -26, p 422; required provisionsin bond of state officer, 1934 -36, p 784; filing notice ofcancellation of justice of peace bond, 1940 -42, p 368; applicability to warehousemen' s bonds, 1956 -58, p 249; conditionsnecessary for approval of blanket position bond, 1966 -68, p 83.

745.753

AM. GEN. OPINIONS: Sufficiency of bond submitted forapproval, 1966 -68, p 83.

743.756

CASE CITATIONS: Hagey v. Mass. Bonding & Ins. Co.,

1942) 169 Or 132, 126 P2d 836, 127 P2d 346.

ATTY. GEN. OPINIONS: Allowance of portion of premiumfor bond towards new bond as a prohibited rebate, 1924 -26,

p 248.

743.759



OLR 74, 76, 79, 85.

SUPERSEDED

743.783

743.783

NOTES OF DECISIONS

An insurer must make a substantial showing of diligencebefore it can successfully rely on the defense of nonco- operation, Johnson v. Doughty, ( 1963) 236 Or 78, 385 P2d760; State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Exch.,

1964) 238 Or 285, 387 P2d 825, 393 P2d 768.

This action is an equitable proceeding in the nature ofcreditor's bill. State Farm Mut. Auto. Ins. Co. v. FarmersIns. Exch., ( 1964) 238 Or 285, 387 P2d 825, 393 P2d 768;

Burnett v. W. Pac. Ins. Co., ( 1970) 255 Or 547, 469 Or 602.

A provision in an automobile liability insurance policyto pay all costs taxed against the assured in any legalproceedings defended by the company and all interest accruing after entry of the judgment must be construed withthis section. New Jersey Fid. & Plate Glass Ins. Co. v. Clark,

1929) 33 F2d 235.

Under this statute, the injured party is given all the rightswhich the insured would have had if he had paid the judgment, or if bankruptcy or insolvency had not intervened, including the right to recover costs and interest irrespectiveof the limits of liability contained in the policy. Id.

Statutes like this section which permit third- party -beneficiary actions by judgment creditors of injured tort- feasorsare held to give the injured plaintiff the same, but not

necessarily greater, rights than the insured had under hiscontract. Jarvis v. Indem. Ins. Co., ( 1961) 227 Or 508, 363

P2d 740.

This section may be construed with ORS 743. 114 to allowattorney fees in action by a third person. Tierney v. SafecoIns. Co. of America, ( 1963) 216 F Supp 590.

Where garnishee insurance company served and filed anappeal bond limited to $20,000, the appeal bond did not staylevy of execution on the judgment. Hecht v. James, ( 1959) 218 Or 251, 345 P2d 246.

FURTHER CITATIONS: Zimmerman v. Union Auto. Ins. Co., ( 1930) 133 Or 600, 291 P 495; Denley v. Ore. Auto. Ins. Co., ( 1935) 151 Or 42, 47 P2d 245, 946; Pacific Indem. Co.

v. McDonald, (1938) 25 F Supp 522; Jackman v. Jones, ( 1953) 198 Or 564, 258 P2d 133; Hale v. Fireman' s Fund Ins. Co.,

1956) 209 Or 99, 302 P2d 1010; Grubb v. Boston Old ColonyIns. Co., ( 1970) 257 Or 208, 477 P2d 901.

ATTY. GEN. OPINIONS: Attachment of a condition relatingto insolvency of the assured as compliance with section, 1926 -28, p 415; type of provision permitted, 1926 -28, p 568.

LAW REVIEW CITATIONS: 9 OLR 57; 12 OLR 256; 44 OLR86-90.

743.789

NOTES OF DECISIONS

The purpose of a former similar statute was to place theinjured policyholder in the same position he would have

been in if the tort feasor had had liability insurance. Peter- son v. State Farm Mut. Auto. Ins. Co., ( 1964) 238 Or 106, 393 P2d 651.

FURTHER CITATIONS: Shore v. Livengood, ( 1963) 234 Or

280, 381 P2d 492; State Farm Mut. Auto. Ins. Co. v. FarmersIns. Exch., ( 1964) 238 Or 285, 387 P2d 825, 393 P2d 768;

Bowsher v. State Farm Fire and Cas. Co., ( 1966) 244 Or

549, 419 P2d 606; Sparling v. Allstate Ins. Co., ( 1968) 249

Or 471, 439 P2d 616.

ATTY. GEN. OPINIONS: Uninsured motorist clause requirement for insurance on motorcycles and motor scooters,

1960 -62, p 182; compulsory arbitration clause in uninsuredmotorist indorsements, 1960 -62, p 190.

LAW REVIEW CITATIONS: 39 OLR 130; 43 OLR 258; 44OLR 78, 89; 48 OLR 74 -94; 1 WLJ 557; 2 WLJ 56 -65.

745.792

NOTES OF DECISIONS

Under a former similar statute, the purpose of an exception was to relieve truckers of the cost of providing uninsured motorist protection if their employes were given

equivalent protection by workmen' s compensation. SafecoIns. Co. v. Christensen, ( 1968) 248 Or 550, 436 P2d 270.

FURTHER CITATIONS: American Motorists Ins. Co. v.

Thompson, ( 1969) 253 Or 76, 453 P2d 164; Foles v. UnitedStates Fid. & Guar. Co., ( 1971) 259 Or 337, 486 P2d 537.


778

SUPERSEDED

Chapter 744

Agents and Adjusters

Chapter 744

ATTY. GEN. OPINIONS: Applicability to insurance companies writing automobile fire insurance only, 1950 -52, p 29; power of domestic life insurance companies to merge,

1958 -60, p 208.

744.005

NOTES OF DECISIONSSee also cases under ORS 744.075 and 744. 155.

FURTHER CITATIONS: Jackson v. N.Y. Life Ins. Co.,

1924) 299 Fed 679; Truck Ins. Exch. v. Truck Ins. Exch., 1940) 165 Or 332, 107 P 511; Ramstead v. North -West Ins.

Co., ( 1969) 252 Or 423, 450 P2d 538.

744.045

ATTY. GEN. OPINIONS: Authority to issue temporary license to agent and right of agent to continue business

pending entry of order upon renewal application, 1936 -38, p 228; licensing one person to represent more than one lifeinsurance company, 195456, p 139; providing dental servicesas a hospital corporation, 1956 -58, p 301; discretion of commissioner to issue license, 1960 -62, p 54; licensing corporation as life insurance agent, 1960 -62, p 340; construing " felony" and " good moral character", application to convictions prior to 1965 amendment, 1964 -66, p 365.

744.055

ATTY. GEN. OPINIONS: Whether nonresident corporation

must also pay fee provided by corporation laws, 1922 -24, p 314, 1932 -34, p 326; authority of nonresident brokers tosign policies and to share commissions, 1922 -24, p 361; liability for error in qualifying nonresident agent, ( 1970) Vol35, p 165.

744.075

NOTES OF DECISIONS

A former similar section was designed to limit the appointment of agents to qualified persons, and to compel

them to perform their duties faithfully. Lovejoy v. Portland, 1920) 95 Or 459, 188 P 207.

ATTY. GEN. OPINIONS: Appointment of monitor for ex-

amination, 1958 -60, p 323; delegation of duty to conductexamination, 1958 -60, p 323; licensing corporation as lifeinsurance agent, 1960 -62, p 340.

744. 135

ATTY. GEN. OPINIONS: Whether separate licenses are

required by an agent writing different classes of insurancefor the same company, 1924 -26, p 378; licensing corporationas life insurance agent, 1960 -62, p 340.

744. 145

ATTY. GEN. OPINIONS: Licensing one person to representmore than one life insurance company, 1954 -56, p 139.

744. 155

NOTES OF DECISIONS

L Under former similar statute

The state's right to regulate the insurance business included the right to control its brokers and agents through

whom the business was carried on. Herbring v. Lee, ( 1928) 126 Or 588, 269 P 236, 60 ALR 1165, affd, ( 1929) 280 US

111, 50 S Ct 49, 74 L Ed 217.

No person was entitled to receive a license as an agent

of a company until the company had complied with theconditions precedent to its right to appoint agents. Id.

744. 165

NOTES OF DECISIONS

This section makes the agent the company' s representative in all matters which, in the usual course of effectinginsurance, are incidental to the application and the deliveryof the policy. Stipcich v. Metropolitan Life Ins. Co., ( 1927)

277 US 311, 48 S Ct 512, 72 L Ed 895, rev'g 8 F2d 285. The agent who procures an application is the company' s

agent to receive a communication from the applicant advis-

ing the company of a serious deterioration in the conditionof his health pending issuance of the policy, even thoughthe application provides that the company shall not bebound by statements made to agents and not reproducedtherein. Id.

Disclosures of medical history made to a company' s soliciting agent are within the phrase " in all matters relatingto such application for insurance." Northwestern Mut. Life

Ins. Co. v. Cohn Bros., ( 1939) 102 F2d 74.

Questions and answers concerning the insured' s medicalhistory which are made " Part II of the Application" arepart of the " application," as that word is used in the section. Id.

Knowledge regarding an insured' s health on the part ofan agent employed to solicit applications binds the insurer

unless the agency had ended when the agent received suchknowledge. State Mut. Life Assur. Co. v. Schultz, ( 1940)

111 F2d 1009.

In case of an agent' s receipt of a check for the first

premium on a policy which allowed such payment " subject

to collection," the agency is not terminated until the checkis " paid ". Id.

FURTHER CITATIONS: Bunn v. Monarch Life Ins. Co.,

1970) 257 Or 409, 478 P2d 363.

779

SUPERSEDED

744.255

744.255

CASE CITATIONS: Wright v. Bateson, ( 1971) 5 Or App 628, 485 132d 641, Sup Ct review denied

ATTY. GEN. OPINIONS: Revocation of agent' s license,

1930 -32, p 71; misrepresenting policy, 1962 -64, p 427; authority to act against a company for misappropriations ofan agent, 1964 -66, p 20; construing authority to suspenda license without a hearing, 1964 -66, p 109; construingfalse" informal hearing on application, 1964 -66, p 284.

744.305

CASE CITATIONS: Travelers Ins. Co. v. Cimarron Ins. Co.,

1961) 196 F Supp 681.

ATTY. GEN. OPINIONS: Writing of surplus line businessprior to issuance of license, 1924 -26, p 185; validity of landvalue insurance and writing of such policies through surplusline agents, 1926 -28, p 576; validity of gross premium taxon premiums of foreign corporations not authorized to do

business in Oregon, 1960 -62, p 131.

744.345

AM. GEN. OPINIONS: Whether the State Industial Acci-

dent Commission is an insurer within this section, 1936 -38,

p 31.

744.355

NOTES OF DECISIONS

A state, as a condition to doing business within its boundaries, may by statute require a foreign corporation tosubmit to the jurisdiction of its courts and the federal courtslocated therein. Travelers Ins. Co. v. Cimarron Ins. Co.,

1961) 196 F Supp 681.

ATTY. GEN. OPINIONS: Meaning of " unauthorized company," 1932 -34, p 587.

744.375

ATTY. GEN. OPINIONS: Validity of gross premium tax onpremiums of foreign corporations not authorized to do

business in Oregon, 1960 -62, p 131.

744.395

CASE CITATIONS: State v. Johnson, ( 1969) 1 Or App 363, 462 P2d 687.

780

is

SUPERSEDED

Chapter 746

Trade Practices

746.005

NOTES OF DECISIONS

This section is not to be construed to change the usual

course of business nor to limit the term " payment" to those

transactions wherein money itself changes hands by actualmanual delivery. Union States Life Ins. Co. v. Bernert,

1939) 161 Or 44, 87 P2d 774.

An insurance agent who attacked the rate and dealings

of a fraternal society was not guilty of twisting in violationof this section. Woolley v. Hiner, ( 1940) 164 Or 161, 100 P2d608.

FURTHER CITATIONS: Transnational Ins. Co. v. Rosen -

lund, ( 1966) 261 F Supp 12.

746.015

NOTES OF DECISIONS

Under a former similar statute, payment of premiums due

on a life policy by the insured's assignment of indebtednessdue him from insurer's general agent and acceptance

thereof by the insurer was not unlawful discrimination. Union States Life Ins. Co. v. Bernert, ( 1939) 161 Or 44, 87

P2d 774.

746.045

NOTES OF DECISIONS


The only rate that could be legally charged was that setforth in the schedule. Ocean Acc. & Guar. Corp. V. AlbinaMarine Iron Works, ( 1927) 122 Or 615, 260 P 229.

A stock company operating,on a participation basis wasnot precluded by a former similar section from returningto its policyholders a portion of its unabsorbed premiums.

General Ins. Co. v. Earle, ( 1937) 156 Or 40, 65 P2d 1414:

One of the purposes of the statute was to promote com-

petition in the lowering of rates. Id.

ATTY. GEN. OPINIONS: Allowance of a portion of premi-

um on bond upon the premium for next year as rebate.

781

1924 -26, p 248; validity of contract wherein the agent offersa rebate of commission, 1936 -38, p 183; life insurance protection for investors in mutual fund, 1956 -58, p 147;, participation by insurance agent in advertising schemes as violation of statute, 1958 -60, p 313; application to policy issuedwith purchase of gas, 1960 -62, p 377; rebate by auctioninga policy, 196466, p 64; benefit derived by insured' s frominsurers advertising scheme, 1964 -66, p 177.

746.075

ATTY. GEN. OPINIONS: Misrepresenting policy, 1962 -64, p 427.

746. 110

CASE CITATIONS: Wright v. Bateson, ( 1971) 5 Or App 628, 485 P2d 641, Sup Ct review denied.

ATTY. GEN. OPINIONS: Misrepresenting policy, 1962 -64, p 427.

746. 160

CASE CITATIONS: United States v. South - Eastern Un- derwriters Assn., ( 1944) 322 US 533, 64 S Ct 1162,• 88 L Ed

1440, rehearing denied, 323 US 811, 65 S Ct, 26, 89 L Ed646; Transnational Ins. Co. v. Rosenlund, ( 1966) 261 F Supp12.

ATTY. GEN. OPINIONS: Discrimination against companymanager or agent not affiliated with fire insurance ,ex-

change, 1922 -24, p 37; legality of stipulation in mortgagerequiring insurance with specified company, 1926 -28, p 411; insurance companies- entering agreements discriminatingagainst other agents, 1934 -36, pp 75, 113.

746.320

CASE CITATIONS: Travelers Ins. Co. v. Cimarron Ins. Co.,

1961) 196 F Supp 681.

SUPERSEDED

Chapter 748

Fraternal Benefit Societies

Chapter 748

ATTY. GEN. OPINIONS: Authority of mass transit districtto tax, ( 1970) Vol 34, p 1066.

748. 105

CASE CITATIONS: Continental Cas. Co. v. Gen. Acc. Fire

Life Assur. Corp., ( 1960) 179 F Supp 535; General Acc. Fire & Life Assur. Corp. v. Continental Cas. Co., ( 1961) 287

F2d 464; Tierney v. Safeco Ins. Co. of America, ( 1963) 216F Supp-590; Close -Smith v. Conley, ( 1964) 230 F Supp 411.

ATTY. GEN. OPINIONS: Requirements for recognition as

fraternal benefit society, 1928 -30, p 426; whether certainorganizations are societies within this section, 1932 -34, pp401, 551.

748.210

ATTY. GEN. OPINIONS: Application of Unclaimed Proper-

ty Act to societies, 1966 -68, p 302.

748.220


A member of a society could withdraw at any time andthe society could refuse to accept payments from the beneficiary after such withdrawal. Somo v. Independent Orderof Foresters, ( 1917) 83 Or 654, 164 P 187.

Where bylaws provided a method for changing the beneficiary and a member changed the beneficiary under hiscertificate for a consideration and without compliance with

such bylaws, such substituted beneficiary was entitled tothe benefits under the certificate. United Artisans Life Assn. v. Odd Fellows Home, ( 1929) 129 Or 66, 275 P 39.

Formalities in designation of a new beneficiary were notrequired if the bylaws of the society itself did not demandany. Id.

One who paid the assessment on the certificate under

an agreement with the member to share in the benefits upon

the latter' s death acquired only a contingent interest inthem until death of the member. McCleery v. Woodmenof the World, ( 1931) 136 Or 407, 297 P 345, 299 P 1004.

A member who agreed that another would share in the

benefits in consideration of making the payments lost theright to change the beneficiary so long as payments weremaintained. Id.

There was no restriction against the assured contractingwith the beneficiary regarding the benefit under the certificate. Id.

While a labor union was not a fraternal benefit society,

a union limiting beneficiaries of a group life insurance policyto a restricted class was not contrary to public policy inOregon. Dyer v. Occidental Life Ins. Co., ( 1950) 182 F2d

128.

748.235

ATTY. GEN. OPINIONS: Authority of commissioner withrespect to change of plan of insurance of a society, 1924 -26, p 64.

748.240

NOTES OF DECISIONS

An attempted waiver of a provision of the bylaws of a

society, which bylaws are authorized by this section, is anullity. Hartman v. Nat. Council, ( 1915) 76 Or 153, 147 P931, LRA 1915E, 152.

Where the bylaws of a fraternal benefit society providedthat a member suspended for nonpayment of dues could

only be reinstated upon payment of arrearages which wouldconstitute ,a warranty of good health and also that localofficers had no authority to waive any provisions of thebylaws, acceptance by local officers of arrearages withknowledge of ill health did not reinstate the policy. Id.

Where bylaws provided a method for changing the beneficiary and a member changed the beneficiary under hiscertificate for a consideration and without compliance with

such bylaws, such substituted beneficiary was entitled tothe benefits under the certificate. United Artisans Life Assn.

v. Odd Fellows Home, ( 1929) 129 Or 66, 275 P 39.

748505

ATTY. GEN. OPINIONS: Authority of commissioner withrespect to change of plan of insurance of a society, 1924 -26, p 64.

748.545

CASE CITATIONS: Oregon Methodist Homes, Inc. v. State

Tax Comm., ( 1961) 226 Or 298, 360 P2d 293.



748.555

ATTY. GEN. OPINIONS: Authority of commissioner withrelation to change of plan of insurance of a society, 1924 -26, p 64.

782

SUPERSEDED

is

Chapter 750

Health Care Service Contractors

Chapter 750

ATTY. GEN. OPINIONS: Discretion of commissioner to

issue license, 1960 -62, p 54; application to nonprofit corporation offering ambulance service to members, 1960 -62, p293; authority of mass transit district to tax ( 1970) Vol 34, p 1066.

750.005

CASE CITATIONS: Guisti v. Weston Co., ( 1940) 165 Or 525,

108 P2d 1010.

ATTY. GEN. OPINIONS: Procedure for dissolution of hos-

pital associations, 1926 -28, p 238; whether dental clinic mustqualify as hospital association to do business, 1932 -34, p297; authority to require a corporation to . comply withchapter before issuing maternity benefit contracts, 1932 -34, p 442; physicians organizing association to treat workmenin consideration of wage deduction, 1936 -38, p 518; whethervoluntary athletic association is doing hospital associationbusiness upon execution of certain contracts, 193840, p 480; whether agricultural workers' health organization is a hos-

pital association within section, 1940 -42, p 104; providingdental services as a hospital corporation, 1956 -58, p 301; furnishing dental service by a hospital association, 1960 -62, p 141; application of General Insurance Law to a foreigncorporation doing a hospital association business, 1960 -62, p 215; application to medical credit corporation, 1960 -62, p 304.

750.045

ATTY. GEN. OPINIONS: Furnishing dental services by ahospital association, 1960 -62, p 141.

750.055

ATTY. GEN. OPINIONS: Whether hospital associations

must publish annual statements, 193840, p 289; validity ofallowance of credits on premiums to members securing newmembers, 193840, p 327; furnishing dental service by ahospital association, 1960 -62, p 141; examination procedure, 1960 -62, p 310; authority of mass transit district to tax, 1970) Vol 34, p 1066.

ffk3

SUPERSEDED

Chapter 751

Motorist Service Clubs

Chapter 751

CASE CITATIONS: Oregon Motor Club v. Dept. of Rev.,

1970) 4 OTR 101.


751. 055

CASE CITATIONS: United States Auto Serv. Club v. Van

Winkle, ( 1929) 128 Or 274, 274 P 308; State v. Hay, ( 1930) 132 Or 223, 283 P 753.

ATTY. GEN. OPINIONS: Commissioner's authority overtitle insurance companies, 1966 -68, p 259.

751. 145


784

C

is

SUPERSEDED

C JChapter 756

Public Utility Commissioner

Chapter 756

NOTES OF DECISIONSIt is beyond the power of judicial review conferred on

the Supreme Court to examine the evidence, in a proceedingto set aside an order of the commissioner, to resolve ques-

tions of fact. Mt. Hood Stages, Inc., v. Hill, ( 1966) 243 Or283, 413 P2d 392.

FURTHER CITATIONS: Anderson v. Heltzel, ( 1952) 197 Or

23, 251 P2d 482; Portland Gen. Elec. Co. v. United States,

1960) 189 F Supp 290.

756.010

ATTY. GEN. OPINIONS: Construing public utility definitionas applied to companies, associations and cooperatives,

furnishing telephone service, 1950 -52, p 145.

756.020

CASE CITATIONS: Southern Pac. Co. v. Heltzel, ( 1954) 201Or 1, 268 P2d 605. .

ATTY. GEN. OPINIONS: Authority for terminal leave payfor commissioner, 1956 -58, p 295.

756.040

NOTES OF DECISIONS

1. In general

The jurisdiction of the commissioner is exclusive in thefirst instance, and the courts will not interfere therewith. First Nat. Bank v. Pac. Tel. & Tel. Co., ( 1916) 81 Or 307,

159 P 561.

The commissioner has only the authority granted by thelegislature. Gates v. Pub. Serv. Comm., ( 1917) 86 Or 442,

167 P 791, 169 P 939.

The commissioner has wide range of discretion in the

exercise of the power to prescribe reasonable charges, and

he is not bound to fix uniform rates for all commodities

or to secure the same percentage of profit on every sortof business. Valley & Siletz R. Co. v. Thomas, ( 1935) 151

Or 80, 48 P2d 358.

The authority of the commissioner to order reformationand to determine the amount thereof is limited to thoseinstances in which some administrative function or discretion is involved; it does not include cases in which the court

has jurisdiction without prior finding or order by the commissioner as to the reasonableness of any rate, rule orregulation. Lee, Inc. v. Pac. Tel. & Tel. Co., ( 1936) 154 Or

272, 59 P2d 683.

2. State and municipal regulation

Rates may be fixed for a local utility different than thosespecified in the ordinance granting the franchise. City ofWoodburn v. Pub. Serv. Comm., ( 1916) 82 Or 114, 161 P

391, Ann Cas 1917E, 996, LRA 1917C, 98; City of Hillsborov. Pub. Serv. Comm., ( 1920) 97 Or 320, 187 P 617, 192 P

390; Salem v. Salem Water, Light & Power Co., ( 1919) 166

CCA 465, 255 Fed 295.

A city' s grant of a franchise containing a rate provisionis subject to the reserved power of the state to compel a

change in the rates. City of Woodburn v. Pub. Serv. Comm., 1916) 82 Or 114, 161 P 391, Ann Cas 1917E, 996, LRA 1917C,

98; City of Hillsboro v. Pub. Serv. Comm., ( 1920) 97 Or 320,

187 P 617, 102 P 390; Portland v. Pub. Serv. Comm., ( 1918)

89 Or 325, 173 P 1178; Central Ore. Irr. Co. v. Pub. Serv.

Comm., ( 1921) 101 Or 442, 196 P 832, 15 ALR 1216.

Alteration of rates prescribed in a municipal franchise

does not impair the obligation of the contract, since the

right of the state to exercise its regulatory powers is impliedtherein. City of Woodburn v. Pub. Serv. Comm., ( 1916) 82

Or 114, 161 P 391, Ann Cas 1917E, 996, LRA 1917C, 98;

Central Ore. Irr. Co. v. Pub. Serv. Comm., ( 1921) 101 Or

442, 196 P 832, 15 ALR 1216.

The statute operates to transfer the regulatory authorityover utilities, except those owned by municipalities, fromcities and towns to the commissioner. Portland v. Pub. Serv. Comm, ( 1918) 89 Or 325, 173 P 1178; Calif. -Ore. Power Co.

v. City of Grants Pass, ( 1913) 203 Fed 173.

FURTHER CITATIONS: Oregon R. & Nay. Co. v. Campbell,

1909) 173 Fed 957; Kalich v. Knapp, ( 1914) 73 Or 558, 604, 142 P 594, 145 P 22, Ann Cas 1916E, 1051; In re CountyRoad No. 65, ( 1919) 90 Or 519, 177 P 426; Portland Ry., Light

Power Co. v. Portland, ( 1914) 210 Fed 667; Portland

Traction Co. v. Hill, ( 1962) 231 Or 354, 372 P2d 501.

ATTY. GEN. OPINIONS: Power of commissioner to permit

a public utility to change a public use into an exclusivelyprivate use, 1920 -22, p 245; authority for terminal leave payfor commissioner, 1956 -58, p 295.


756.060


756.062

NOTES OF DECISIONS

Two letters specifying rates filed with the commissionerfulfilled the requirements of a valid schedule and order. McPherson v. Pac. Power & Light, ( 1956) 207 Or 433, 296

P2d 932.

FURTHER CITATIONS: Portland Ry., Light & Power Co.

v. R.R. Comm., ( 1912) 229 US 397, 33 S Ct 820, 57 L

Ed 1248; City of Woodburn v. Pub. Serv. Comm., ( 1916)

82 Or 114, 161 P 391, Ann Cas 1917E, 996, LRA 1917C, 98.

785

756.064

CASE CITATIONS: Board of R.R. Commr's. v. Oregon Ry. Nay. Co., ( 1888) 17 Or 65, 19 P 702, 2 LRA 195; Oregon

Ry. and Nay. Co. v. Campbell, ( 1909) 173 Fed 957.

SUPERSEDED

756.070

ATTY. GEN. OPINIONS: Authority to assess auditor' s salary and expenses as part of charge made to interstatecarriers for audits outside state, 1940 -42, p 311.

756.070

ATTY. GEN. OPINIONS: Examination of income tax re-

turns in possession of State Tax Commission by the commissioner or a complainant, 1956 -58, p 91.

LAW REVIEW CITATIONS: I WLJ 204.

756.090

CASE CITATIONS: Oregon Telephone Co. v. Pub. Util.

Commr., ( 1971) 5 Or App 231, 483 P2d 822.

756. 105


turns in possession of State Tax Commission by commissioner or complainant, 1956 -58, p 91.

756. 115



756. 160

CASE CITATIONS: McPherson v. Pac. Power & Light Co.,

1956) 207 Or 433, 296 P2d 932; Portland Traction Co. v.

Hill, ( 1960) 222 Or 636, 352 P2d 552, 353 P2d 838; State v. Portland Traction Co., ( 1963) 236 Or 38, 386 P2d 435.

ATTY. GEN. OPINIONS: Authority of commissioner to entertain complaint of private person that utility is aiding andabetting the operation of unlawful establishments, 1936 -38, p 442; Public Utility Commissioner' s authority to compelPortland and Mutlnomah County to allow for tracks acrossHawthorne Bridge, 1954 -56, p 202.

756. 180

NOTES OF DECISIONS


In order to justify the granting of an injunction underan express and unrestricted statutory authority, no balanc- ing of the equities was necessary. State v. O. K. TransferCo., ( 1958) 215 Or 8, 330 P2d 510.

The legislature intended by the former statute to confera special power on the courts unfamiliar to the common

law, since the injunctive remedy authorized was directedtowards conduct criminal in nature. Id.

The former statute did not specifically, either directly orby implication, require the commissioner to show irreparable injury or lack of other remedies in order to obtaininjunctive relief against violations of the Motor Transpor-

tation Code. Id.

The validity of the commissioner' s order could not becollaterally attacked in an application to the court to enforce the order, but had to be questioned in the mannerset forth in the statutes. Morgan v. Portland Traction Co., 1958) 222 Or 614, 331 P2d 344, 353 P2d 838.


23, 251 P2d 482; McPherson v. Pac. Power & Light Co.,

1956) 207 Or 433, 296 P2d 932; Portland Traction Co. v. Hill, ( 1960) 222 Or 636, 352 P2d 552, 353 P2d 838.

756.185

NOTES OF DECISIONS

Under a former similar statute, treble damages could not

be recovered for a mere overcharge. Service Lbr. Co. v.

Sumpter Valley R. Co., ( 1913) 67 Or 63, 135 P 539.

A patron who has received a refund of an excess charge

made by a utility cannot be said to be an " injured" personwithin the meaning of this section. Cash v. Portland R. R., Light & Power Co., ( 1919) 92 Or 81, 179 P 909.

The complaint was required to show that the order was

in effect at the time the injury complained of was suffered, otherwise there could be no recovery of treble damages. Crown Mills v. Ore. Elec. R. Co., ( 1933) 144 Or 25, 21 P2d

214.

756.325

ATTY. GEN. OPINIONS: Authority of the commissioner tocollect filing fees for amended applications, 1938. 40, p 518.


756.360

ATTY. GEN. OPINIONS: Authority of State Treasurer totransfer a portion of fees collected and paid to the commis-

sioner by public utilities, 1936 -38, p 288.

756.370

ATTY. GEN. OPINIONS: Leasehold in lieu of deposit,

1960 -62, p 287.

756.375

ATTY. GEN. OPINIONS: Sufficiency of notice of withdrawal from transaction of business within state, 1928 -30,

p 183; leasehold in lieu of deposit, 1960 -62, p 287.

756.500

NOTES OF DECISIONS

1. In general

To determine the jurisdiction of the commissioner over

a particular business, one must refer to the substantive

statutes goverriing that business. McPherson v. Pac. PowerLight, ( 1956) 207 Or 433, 296 P2d 932.

This section is only a uniform practice Act which governsall proceedings over which jurisdiction has been conferred

upon the commissioner in respect to various businesses

within his jurisdiction. Id.


1) In general. Rate making was a legislative function. Southern Pac. Co. v. Campbell, ( 1911) 189 Fed 182.

The right of the carrier to fix its rates was subject to

the revision of the commissioner under the statute. Ham-

mond Lbr. Co. v. Public Serv. Comm., ( 1920) 96 Or 595, 189

P 639, 9 ALR 1223.

The commissioner was authorized to change rates onlyin the event that he found them to be unreasonable. Valley

Siletz R. Co. v. Thomas, ( 1935) 151 Or 80, 48 P2d 358.

The legislature had not given the commissioner power

to establish minimum rates. Southern Pac. Co. v. Heltzel, 1954) 201 Or 1, 268 P2d 605.

It was not necessary, in an investigation of alleged discrimination in giving transfer privileges over another roadto patrons of one branch line while denying them to patronsof another, that the road honoring the transfers be madea party. Portland Ry., Light & Power Co. v. R.R. Comm.,

1910) 56 Or 468, 105 P 709, 109 P 273.

V

786

II

SUPERSEDED

2) Construction of former statute. The statute did not

define unjust discrimination, but left its existence in a par-

ticular case to be determined by the commissioner. PortlandRy., Light & Power Co. v. R.R. Comm., ( 1912) 299 US 397,

33 S Ct 820, 57 L Ed 1248.

The statute did not authorize the filing of a complaintmerely for the recovery of an alleged overcharge. Ore. - Wash. R. & Nay. Co. v. McColloch, ( 1936) 153 Or 32, 55

P2d 1133.

The word " unreasonable," used in the statute did not

have reference to charges based on rates in excess of thoseestablished. Id.

FURTHER CITATIONS: McPherson v. Pac. Power & Light

Co., ( 1956) 207 Or 433, 296 P2d 932.


756.512


756.515

NOTES OF DECISIONS

L Under former similar statute

An order that was based on a finding unsupported bythe evidence could be set aside in a proper case. Hammond

Lbr. Co. v. Pub. Serv. Comm., ( 1920) 96 Or 595, 189 P 639,

9 ALR 1223; Ore. -Wash. R. & Nay. Co. v. Corey, ( 1927) 120Or 517, 252 P 955.

A rate did not need to be unreasonable in order to be

discriminatory. Portland Ry., Light & Power Co. v. R. R.

Comm., ( 1910) 56 Or 468, 105 P 709, 109 P 273.

The polestar in all rate investigations was reason-

ableness. Portland v. Pub. Serv. Comm., ( 1918) 89 Or 325,

173 P 1178.

The commissioner had no authority to reduce a rate thatwas conceded by the persons interested therein to be fairand reasonable. Oregon - Wash. R. & Nay. Co. v. Corey,

1927) 120 Or 517, 252 P 955.

The commissioner was authorized to change rates onlyin the event that he found them to be unreasonable. Valley

Siletz R. Co. v. Thomas, ( 1935) 151 Or 80, 48 P2d 358.

The legislature had not given the commissioner power


The scope of hearing complaints under this section waslimited to only such complaints as may be filed under ORS757.505 [ repealed 1971; see ORS 756.5201. McPherson v. Pac. Power & Light, ( 1956) 207 Or 433, 296 P2d 932.

FURTHER CITATIONS: Southern Pac. Co. v. R. R. Comm., 1911) 60 Or 400, 119 P 727.

756.518 to 756.610

CASE CITATIONS: Mt. Hood Stages, Inc. v. Haley, ( 1969) 252 Or 538, 451 P2d 125; Mt. Hood Stages, Inc. v. Haley, 1969) 253 Or 28, 453 P2d 435.

756.518

NOTES OF DECISIONSWhere the commissioner fails to make findings on basic

issues, the Supreme Court is not authorized to review such

issues. Pacific Tel. & Tel. Co. v. Flagg, ( 1950) 189 Or 370, 220 P2d 522.

The demands of this Act are not met by the entry ofgeneral findings by the commissioner. Valley & Siletz R.

Co. v. Flagg, ( 1952) 195 Or 683, 247 P2d 639.

756.565

FURTHER CITATIONS: Morgan v. Portland Traction Co.,

1958) 222 Or 614, 331 P2d 344.




756.525


756.530


1956) 207 Or 433, 296 P2d 932.

75 &555


756.558

NOTES OF DECISIONS

Where the commissioner fails to make findings on basic

issues, the Supreme Court is not authorized to review such

issues. Pacific Tel. & Tel. Co. v. Flagg, ( 1950) 189 Or 370, 220 P2d 522.

The demands of this Act are not met by the entry ofgeneral findings by the commissioner. Valley & Siletz R.

Co. v. Flagg, ( 1952) 195 Or 683, 247 P2d 639. The commissioner in a proceeding challenging the rates

made as being confiscatory should enter findings disposingof all the issues, showing ( 1) the manner and the amountin which he distributed the indirect costs among the trafficwhich the carrier bore, and ( 2) his segregation of the property and revenue between the interstate and intrastatephases of the carrier's operations. Id.

Commissioner is required by this section to make findingsof fact in support of his order. Pacific Tel. & Tel. Co. v.

Hill, ( 1961) 229 Or 437, 365 P2d 1021, 367 P2d 790.

There is a need for clarity and completeness in the basicor essential findings on which administrative orders rest.

Mt. Hood Stages, Inc. v. Hill, ( 1966) 243 Or 283, 413 P2d

392.


1958) 222 Or 614, 331 P2d 344, 353 P2d 838.


756.565

NOTES OF DECISIONS

The statute means merely that the courts will presumethat the commissioner acted reasonably, fairly and justly. Southern Pac. Co. v. R.R. Comm., ( 1911) 60 Or 400, 119

P 727; Southern Pac. Co. v. Campbell, ( 1911) 189 Fed 182.

In view of this section, it is unnecessary, in an actionto recover a penalty for disregard of an order of the commissioner, to allege that the order was reasonable. Statev. Corvallis & E.R. Co., ( 1911) 59 Or 450, 117 P 980.

Under a former similar statute the commissioner's orders

were not conclusive on' the court. Pacific Tel. & Tel. Co.

v. Wallace, ( 1938) 158 Or 210, 75 P2d 942.

The manner of challenging in the circuit court an orderentered by the commissioner is by a suit against the commissioner. Southern Pac. Co. v. Heltzel, ( 1954) 201 Or 1,

268 P2d 605. A writ of prohibition is available to railroads and public

utilities since appeal is an inadequate remedy. Id.

787

SUPERSEDED

756.572


1958) 222 Or 614, 331 P2d 344, 353 P2d 838; Portland Trac- tion Co. v. Hill, ( 1962) 231 Or 354, 372 P2d 501; Mt. Hood

Stages, Inc. v. Haley, ( 1969) 252 Or 538, 451 P2d 125.


756.572

NOTES OF DECISIONS

Under a former similar statute a railroad company leasingits road to another corporation without special statutoryauthority could be held responsible for the lessee' s torts. Lakin v. Willamette Valley & Coast R. Co., ( 1886) 13 Or

436, 11 P 68, 57 Am Rep 25. Under a former similar statute, an order of the commis-

sion remained in effect unless it was suspended in accor-

dance with statutory authority. Crown Mills v. Ore. Elec. R. Co., ( 1933) 144 Or 25, 21 P2d 214.

756.580

NOTES OF DECISIONS

1. In general

2. Under former similar statutes

1) Procedure for utilities

2) Procedure for railroads

a) In general

b) Constitutionalityc) Burden of proof

d) Complaint

e) Parties

1. In general

Findings of fact of the commissioner will not be disturbed

on review unless they are not supported by the record. Pacific Tel. & Tel. Co. v. Hill, ( 1961) 229 Or 437, 365 P2d

1021, 367 P2d 790; Mt. Hood Stages, Inc. v. Haley, ( 1970) 4 Or App 385, 478 P2d 645, Sup Ct review denied.

The manner of challenging in the circuit court an orderentered by the commissioner is by a suit against the commissioner. Southern Pac. Co. v. Heltzel, ( 1954) 201 Or 1,

268 P2d 605.

Courts will not review the orders of public administrative

bodies that have failed to comply with statutes requiringfindings of fact and conclusions of law but will hold orders

made without meeting these requirements void. MitchellBros. Truck Lines v. Hill, ( 1961) 227 Or 474, 363 P2d 49.

The burden of proof to establish that existing rates areconfiscatory and the proposed rates reasonable rests withthe utility. Pacific Tel. & Tel. Co. v. Hill, ( 1961) 229 Or 437,

365 P2d 1021, 367 P2d 790.

The commissioner's findings are binding on the court, inthe event of judicial review, if supported by cogent, competent, material and substantial evidence. Borich Transfer Co.

v. Haley, ( 1970) 2 Or App 606, 469 P2d 638, Sup Ct reviewdenied.

2. Under former similar statutes

1) Procedure for utilities. The remedy provided by thestatute was exclusive. Gates v. Public Serv. Comm., ( 1917)

86 Or 442, 167 P 791, 168 P 939.

The city in which the utility operated was not a necessaryparty to a suit against the commission to set aside a rateorder made by it. Id.

An action to enjoin enforcement of an order fixing ratesof a private corporation was properly brought by mortga- gees and bondholders, and the corporation itself was not

an indispensable party. De Pauw Univ. v. Public Serv. Comm., ( 1917) 247 Fed 183.

A writ of prohibition was available to railroads and public

utilities when appeal was an inadequate remedy. SouthernPac. Co. v. Heltzel, ( 1954) 201 Or 1, 268 P2d 605.

The burden of proof to establish that rates were confisca-

tory and proposed rates reasonable rested with the utility. Pacific Tel. & Tel. Co. v. Hill, ( 1962) 229 Or 437, 365 P2d1021, 367 P2d 790.

The duty of the court was purely to review determi- nations made by the commissioner, not fix rates or directwhat additional orders or findings should be made. Id.

2) Procedure for railroads

a) In general. The only method by which a railroadcompany could challenge the reasonableness of an orderof the commissioner was that provided by the statute. Statev. Corvallis & E. R. Co., ( 1911) 59 Or 450, 117 P 980.

The courts were authorized to review the findings of the

commissioner only so far as to determine whether the ratespromulgated by him would deprive the carrier of its property without due compensation. Southern Pac. Co. v. Camp- bell, ( 1911) 189 Fed 182.

The rate complained of would not be set aside unless theevidence showed that the commissioner exceeded his au-

thority. Hammond Lbr. Co. v. Public Serv. Comm., ( 1920)

96 Or 595, 189 P 639, 9 ALR 1223.

The findings of the commissioner in a proceeding of thekind authorized were conclusive upon the court unless theywere without evidentiary support or were otherwise invalid. Oregon -Wash. R. & Nay. Co. v. Corey, ( 1927) 120 Or 517, 252 P 955.

The statute did not apply to orders awarding a shipperreparation. Oregon -Wash. R. & Nay. Co. v. McColloch,

1936) 153 Or 32, 55 P2d 1133.

A writ of mandamus or an enforcement order made pur-

suant to statute was effective until the validity of the commissioner' s order was determined in a review proceeding, or until a stay was granted by the reviewing court. Morganv. Portland Traction Co., ( 1958) 222 Or 614, 331 P2d 344,

353 P2d 838.

Reduction or discontinuance of service required consid-

eration of ( 1) the cost of providing the present service, ( 2) the use by the public of the present service, and ( 3) availability and adequacy of other transportation facilities. Portland Traction Co. v. Hill, ( 1962) 231 Or 354, 372 P2d

501. But see Hammond Lbr. Co. v. Public Serv. Comm.,

1920) 96 Or 595, 189 P 639, 9 ALR 1223.

b) Constitutionality. The procedure outlined in thestatute is consistent with the U.S. Const., Am. 14. Southern

Pac. Co. v. Campbell, ( 1912) 230 US 537, 33 S Ct 1027, 57

L Ed 1610.

c) Burden of Proof. The burden was on the complain-

ant to show by clear and satisfactory proof that the rateswere confiscatory. Southern Pac. Co. v. Campbell, ( 1911) 189 Fed 182.

The plaintiff in a suit of the character authorized wasnot required to produce a greater amount of proof than

would be necessary to overturn the findings of any selectedbody of experts. Southern Pac. Co. v. R. R. Comm., ( 1911)

60 Or 400, 119 P 727.

A carrier assailing an intrastate rate fixed by the commission had to show that it was invalid for one reason or

another, else the courts were without power to grant relief.

Oregon -Wash. R. & Nay. Co. v. Corey, ( 1927) 120 Or 517, 252 P 955.

d) Complaint. A complaint in an action to set aside

a rate order which failed to segregate the expenses of doingintrastate business from total expenses was wholly insufficient. Southern Pac. Co. v. Campbell, ( 1912) 230 US 537,

33 S Ct 1027, 57 L Ed 1610.

e) Parties. It was customary to join with the commissioner as defendants the persons who obtained the ordersought to be set aside. Oregon -Wash. R. & Nay. Co. v.

McColloch, ( 1936) 153 Or 32, 55 P2d 1133.

788

SUPERSEDED

C FURTHER CITATIONS: Butcher v. Flagg, ( 1949) 185 Or

471, 203 P2d 305; Bend- Portland Truck Serv., Inc. v. Pub. Util. Commr., ( 1960) 221 Or 514, 351 P2d 1117; Portland

Traction Co. v. Hill, ( 1960) 222 Or 636, 352 P2d 552, 353

P2d 838; Rogers Constr. Co. v. Hill, ( 1963) 235 Or 352, 384P2d 219; State v. Portland Traction Co., ( 1963) 236 Or 38,

386 P2d 435; Mt. Hood Stages, Inc. v. Hill, ( 1966) 243 Or

283, 413 P2d 392; Smith Canning & Freezing Co. v. LloydKrause, Inc., ( 1968) 398 F2d 128; Mt. Hood Stages, Inc. v.

Haley, ( 1969) 252 Or 538, 451 P2d 125; Mt. Hood Stages, Inc. v. Haley, ( 1969) 253 Or 28, 445 P2d 878.

LAW REVIEW CITATIONS: 40 OLR 258, 259; 43 OLR

278 -280; 1 WLJ 221, 222.

756.590

NOTES OF DECISIONS


A carrier was not bound to comply with an order thathad been suspended. Crown Mills v. Ore. Elec. R. Co., ( 1933)

144 Or 25, 21 P2d 214.

There could be no recovery of treble damages for non- compliance with an order that had been suspended. Id.

A writ of prohibition was available to railroads and public

utilities when appeal was an inadequate remedy. SouthernPac. Co. v. Heltzel, ( 1954) 201 Or 1, 268 P2d 605.

A writ of mandamus or an enforcement order made pur-

suant to statute was effective until the validity of the com-

missioner's order was determined in a review proceeding, or until a stay was granted by the reviewing court. Morganv. Portland Traction Co., ( 1958) 222 Or 614, 331 P2d 344,

353 P2d 838.

FURTHER CITATIONS: Portland Traction Co. v. Hill,

1960) 222 Or 636, 352 P2d 552; Portland Traction Co. v.

Hill, (1962) 231 Or 354, 372 P2d 501; State v. Portland Trac-

tion Co., ( 1963) 236 Or 38, 386 P2d 435.


756.594

NOTES OF DECISIONS

A stipulation that the evidence introduced in the circuit

court should not be referred to the commissioner and that

the court should determine the suit on the law and the factsin the record did not relieve plaintiff of burden of proofunder a former similar statute. Butcher v. Flagg, ( 1949) 185Or 471, 203 P2d 305.

FURTHER CITATIONS: Pacific Tel. & Tel. Co. v. Wallace,

1938) 158 Or 210, 75 P2d 942; Portland Traction Co. v. Hill,

1962) 231 Or 354, 372 P2d 502; State v. Portland TractionCo., ( 1963) 236 Or 38, 386 P2d 435.


756.600

NOTES OF DECISIONS

The commissioner's findings are binding on the court ifsupported by cogent, competent, material and substantialevidence. Pierce Auto Freight Lines v. Flagg, ( 1945) 177 Or1, 159 P2d 162.

756.990

A stipulation that the evidence introduced in the circuit

court should not be referred to the commissioner and thatthe court should determine the suit on the law and the factsin the record did not relieve plaintiff of burden of proof

under OCLA 112 -458 [ ORS 757.585], and did not transfer

from the commissioner to the court the determination of

whether plaintiff should be granted or denied permission

to construct a highway across certain railroad tracks. Butcher v. Flagg, ( 1949) 185 Or 471, 203 P2d 305.

The demands of this Act are not, met by the entry ofgeneral findings by the commissioner. Valley & Siletz R.

Co. v. Flagg, ( 1952) 195 Or 683, 247 P2d 639. The commissioner in a proceeding challenging the rates

made as being confiscatory should enter findings disposingof all the issues, showing ( 1) the manner and the amountin which he distributed the indirect costs among the trafficwhich the carrier bore, and ( 2) his segregation of the property and revenue between the interstate and intrastatephases of the carrier' s operations. Id.

Rescission under subsection ( 3) contemplates that the

order rescinded shall have no validity after the time it wasgiven. Portland Traction Co. v. Hill, ( 1960) 222 Or 636, 352

P2d 552.

An order " rescinding" prior orders, but only prospectively, was not a rescission within the meaning of subsection3) Id.

FURTHER CITATIONS: Horger v. Flagg, ( 1948) 185 Or 109, 201 P2d 515; Pacific Tel. & Tel. Co. v. Wallace, ( 1938) 158

Or 210, 75 P2d 942; Morgan v. Portland Traction Co., ( 1958)

222 Or 614, 331 P2d 344; Portland Traction Co. v. Hill, (1962) 231 Or 354, 372 P2d 501; State v. Portland Traction Co.,

1963) 236 Or 38, 386 P2d 435; Borich Transfer Co. v. Haley, 1970) 2 Or App 606, 469 P2d 638, Sup Ct review denied.

ATTY. GEN. OPINIONS: Construing " rescind," 1966 -68, p6.


222.

756.610

CASE CITATIONS: Morgan v. Portland Traction Co., ( 1958) 222 Or 614, 331 P2d 344, 353 P2d 838; Appleton v. Ore. Iron

Steel Co., ( 1961) 229 Or 81, 358 P2d 260, 366 P2d 174; State v. Portland Traction Co., ( 1963) 236 Or 38, 386 P2d435; Mt. Hood Stages, Inc. v. Hill, ( 1966) 243 Or 283, 413

P2d 392.


756.990

NOTES OF DECISIONS

A former similar statute received a strict construction,

and no accumulation of offenses was carved out of it unless

expressly authorized therein. Oregon R. & Nay. Co. v.

Campbell, ( 1909) 173 Fed 957.

An order absolutely void under a former similar statutewas not an order than could be the basis of a penalty. State v. Portland Traction Co., ( 1963) 236 Or 38, 386 P2d

435.

789

FURTHER CITATIONS: Portland Traction Co. v. Hill, 1960) 222 Or 636, 352 P2d 552, 353 P2d 838.

SUPERSEDED

Chapter 757

Utility Regulation Generally

Chapter 757


1956) 207 Or 433, 296 P2d 932; Portland Gen. Elec. Co. v.

United States, ( 1960) 189 F Supp 290.


757.005

NOTES OF DECISIONS

1. In general

An owner who devotes his property to a use in whichthe public has an interest must submit to regulation for

the common good. City of Woodburn v. Pub. Serv. Comm., 1916) 82 Or 114, 161 P 391', Ann Cas 1917E, 996, LRA 1917C,

98; Central Ore. Irr. Co. v. Pub. Serv. Comm., ( 1921) 101

Or 442, 196 P 832, 15 ALR 1216.

The state had power to create a commission to exercise

its regulatory power over public utilities. Portland R.R., Light & Power Co. v. Portland, ( 1914) 210 Fed 667.

Exemption of municipally owned or operated utilities wasnot violative of U.S. Const., Am. 14. Yamhill Elec. Co. v.

City of McMinnville, ( 1929) 130 Or 309, 274 P 118, 280 P504.

2. Application to particular concerns

A private corporation furnishing water to purchasers ofits land only in accordance with the purchase contracts isnot within the statute. Central Ore. Irr. Co. v. Pub. Serv. Comm., ( 1921) 101 Or 442, 196 P 832, 15 ALR 1216; De Pauw

Univ. v. Pub. Serv. Comm., ( 1917) 247 Fed 183; De Pauw

Univ. v. Pub. Serv. Comm., ( 1918) 253 Fed 848.

Assuming that the chapter applies to irrigation companies, it is applicable only to those that engage in the furnishing of water to all who may apply for it. De Pauw Univ. v. Pub. Serv. Comm., ( 1917) 247 Fed 183.

An appropriator of water for " general rental, sale and

disposition for purposes of irrigation, etc.," is not necessari-

ly a public utility. De Pauw Univ. v. Pub. Serv. Comm., 1918) 253 Fed 848.

The fact that private corporation was authorized by itscharter to engage in the business of a public utility doesnot ipso facto make it such. Id.

3. Municipally owned utilitiesThe legislature undoubtedly intended that the rates of

a municipally owned utility should be regulated by themunicipality itself. Gates v. Pub. Serv. Comm., ( 1917) 86

Or 442, 167 P 791, 168 P 939.

A water works plant was municipally owned, where itappeared that the city purchased the right of way and paid

12,000 for its construction, though, as an additional con-

sideration, it gave the constructor the right to operate the

plant for a period of 20 years. Id.

The exemption of municipally owned or operated utilities

from state regulation extends to utilities rendering servicesseveral miles beyond the city limits. Yamhill Elec. Co. v.

City of McMinnville, ( 1929) 130 Or 309, 274 P 118, 280 P504.

FURTHER CITATIONS: Portland v. Pub. Serv. Comm.,

1918) 89 Or 325, 173 P 1178; City of Hillsboro v. Pub. Serv. Comm., ( 1920) 97 Or 320, 187 P 617, 192 P 390; Jory v. Martin, ( 1936) 153 Or 278, 56 P2d 1093; California -Ore.

Power Co. v. City of Grants Pass, ( 1913) 203 Fed 173.

ATTY. GEN. OPINIONS: Company furnishing water fordomestic purposes to purchasers of certain realty as a publicutility, 1924 -26, p 510; jurisdiction of commissioner overmutual utilities, 1930 -32, p 565; scope of term " public utilities corporation," 1932 -34, p 137; mutual water companyas a public utility, 1932 -34, p 496; Portland Electric PowerCompany as a public utility, 1934 -36, p 396; American Dis- trict Telegraph Company as a public utility, 1934 -36, p 411; distribution of electric energy by a corporation to itsmembers as public utilities business, 1936 -38, p 277; cooperative telephone line as subject to Federal Communications

Act or the commissioner's rules, 1940 -42, p 197; Bonnevillepower project as subject to Oregon law, 1940 -42, p 515; whether or not a corporation distributing electrical energyis to be classed as a public utility as depending on whetherit holds itself out as willing to serve the public, 194446, p 329; whether a privately owned and operated airport isa public utility, 1944116, p 442; what constitutes a " publicutility," 1950 -52, p 145; exceptions to licensing law for electrical installations, 1954 -56, p 195; approval of stock issuepursuant to stock option agreement between public utilityand employes, prior to 1961 amendment, 1960 -62, p 108; authority for municipal utility transmission line over a river, 1962 -64, p 24; telephone cooperative as a public utility, 1966 -68, p 188.


757.015

CASE CITATIONS: Oregon Tel. Co. v. Pub. Util. Commr.,

1971) 5 Or App 231, 483 P2d 822,

757.020

NOTES OF DECISIONSThe public is entitled to a reasonable service and the

utility to fair compensation. City of Hillsboro v. Pub. Serv. Comm., ( 1920) 97 Or 320, 187 P 617, 192 P 390.

Construction of a substation for electricity had reasonable relation to the furtherance of public interests. Holt v. Salem, ( 1951) 192 Or 200, 234 P2d 564.


Co., ( 1956) 207 Or 433, 296 P2d 932.

757.035

NOTES OF DECISIONS

Order which adopted the National Electrical Safety Code

790

SUPERSEDED

757. 105

NOTES OF DECISIONS

Where the commissioner orders payments to be stopped

which were made by a telephone subsidiary to the parentcompany for necessary services furnished by the parent, basing the order on disapproval of the method of contracting rather than the expenditures themselves, such orderexceeded statutory authority. Pacific Tel. & Tel. Co. v.

Flagg, ( 1950) 189 Or 370, 220 P2d 522.

FURTHER CITATIONS: Oregon Tel. Co. v. Pub. Util.

Commr., ( 1971) 5 Or App 231, 483 P2d 822.

757. 120

NOTES OF DECISIONS

Under former similar statute factors to be taken into

consideration in determining the value of a utility includedthe original cost of construction, the amount expended inpermanent improvements, the amount and market value of

its bonds and stock, the present as compared with the

original cost of construction, the probable earning capacity

of the property under particular rates, and the sum requiredto meet operating expenses. Pacific Tel. & Tel. Co. v. Wal-

lace, ( 1938) 158 Or 210, 75 P2d 942.

Property that was neither used nor useful to the publicservice could not properly be included in the valuation. Id.

Separations of property valued had to be on the basisof use. Pacific Tel. & Tel. Co. v. Hill, ( 1961) 229 Or 437,

365 P2d 1021, 367 P2d 790.

FURTHER CITATIONS: City of Woodburn v. Pub. Serv. Comm., ( 1916) 82 Or 114, 161 P 391, Ann Cas 1917E, 996,

LRA 1917C, 98; Oregon Tel. Co. v. Pub. Util. Commr., ( 1971)

5 Or App 231, 483 P2d 822.

ATTY. GEN. OPINIONS: Valuation by commissioner ofproperty acquired by public utility issuing bonds therefor, 1942 - 44, p 83.

757. 135

ATTY. GEN. OPINIONS: Duty of foreign utility corporationthat had sold its Oregon operative properties to file balance

sheet, 1926 - 28, p 513.

757. 140

NOTES OF DECISIONS

There is no conflict between requirements of the Oregon

Public Utility Commissioner and Federal Power Commis- sioner for rate regulatory purposes on the one hand and

is Internal Revenue Code and Treasury regulations on theother hand as to useful lives of a utility' s properties. Port- land Gen. Elec. Co. v. United States, ( 1960) 189 F Supp 290.

757. 230

757. 205

NOTES OF DECISIONS

A city cannot by ordinance change the rates fixed in theschedule. Califorma - Ore. Power Co. v. City of Grants Pass,

1913) 203 Fed 173.

ATTY. GEN. OPINIONS: Whether , the Bonneville Power

project is subject to state regulation, 1940 - 42, p 515.

757. 210

NOTES OF DECISIONS

In establishing rates, property jointly used must be allo- cated on the basis of use. Pacific Tel. & Tel. Co. v. Hill,

1961) 229 Or 437, 365 P2d 1021, 367 P2d 790.

The commissioner may use any formula supported byfindings in the separation of property serving more thanone use. Id.

There was no basis in the record for determination that

use of interstate service was more valuable than use of

intrastate service. Id.


Co., ( 1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Right of utility to establish newrate schedule or to increase existing schedule, 1926 - 28, p531.


VAYJP411


1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Reduction of rates when utilitycompany is being undersold in a certain locality by a competitor, 1948 - 50, p 245.


757. 220

CASE CITATIONS: McPherson v. Pac Power & Light Co.,

1956) 207 Or 433, 296 P2d 932; Pacific Tel. & Tel. Co. v.

Hill, ( 1961) 229 Or 437, 365 P2d 1021, 367 P2d 790.


757. 225

NOTES OF DECISIONS

The fact that a city council has prescribed a rate otherthan the scheduled one does not authorize the utility tovary its charge. California - Ore. Power Co. v. City of GrantsPass, ( 1913) 203 Fed 173.

Where rates are in excess of the lawfully filed scheduleof rates, the patron must seek redress by proceeding directlyin the courts. McPherson v. Pac. Power & Light, ( 1956) 207

Or 433, 296 P2d 932.

FURTHER CITATIONS: Portland R. R., Light & Power Co.

v. Portland, ( 1914) 210 Fed 667.

757. 230

NOTES OF DECISIONS

Two letters specifying rates filed with the commissionerfulfilled the requirements of a valid schedule and order.

791

of Bureau of Standards, including future amendments, wasan unconstitutional delegation of legislative authority andvoid. Hillman v. No. Wasco County P. U. D., ( 1958) 213 Or

264, 323 P2d 664.

Public Utility Commissioner has authority to adopt particular edition of the National Electrical Safety Code asstandard ( dicta). Id.

ATTY. GEN. OPINIONS: Section as conflicting with electriccode, 1938 -40, p 157.


757. 105

NOTES OF DECISIONS

Where the commissioner orders payments to be stopped

which were made by a telephone subsidiary to the parentcompany for necessary services furnished by the parent,

basing the order on disapproval of the method of contracting rather than the expenditures themselves, such order

exceeded statutory authority. Pacific Tel. & Tel. Co. v.

Flagg, ( 1950) 189 Or 370, 220 P2d 522.

FURTHER CITATIONS: Oregon Tel. Co. v. Pub. Util.

Commr., ( 1971) 5 Or App 231, 483 P2d 822.

757. 120

NOTES OF DECISIONS

Under former similar statute factors to be taken into

consideration in determining the value of a utility includedthe original cost of construction, the amount expended in

permanent improvements, the amount and market value of

its bonds and stock, the present as compared with the

original cost of construction, the probable earning capacity

of the property under particular rates, and the sum requiredto meet operating expenses. Pacific Tel. & Tel. Co. v. Wal-

lace, ( 1938) 158 Or 210, 75 P2d 942.

Property that was neither used nor useful to the publicservice could not properly be included in the valuation. Id.

Separations of property valued had to be on the basisof use. Pacific Tel. & Tel. Co. v. Hill, ( 1961) 229 Or 437,

365 P2d 1021, 367 P2d 790.

FURTHER CITATIONS: City of Woodburn v. Pub. Serv. Comm., ( 1916) 82 Or 114, 161 P 391, Ann Cas 1917E, 996,

LRA 1917C, 98; Oregon Tel. Co. v. Pub. Util. Commr., ( 1971)

5 Or App 231, 483 P2d 822.

ATTY. GEN. OPINIONS: Valuation by commissioner ofproperty acquired by public utility issuing bonds therefor,

1942 - 44, p 83.

757. 135

ATTY. GEN. OPINIONS: Duty of foreign utility corporationthat had sold its Oregon operative properties to file balance

sheet, 1926 - 28, p 513.

757. 140

NOTES OF DECISIONS

There is no conflict between requirements of the Oregon

Public Utility Commissioner and Federal Power Commis- sioner for rate regulatory purposes on the one hand and

is Internal Revenue Code and Treasury regulations on theother hand as to useful lives of a utility' s properties. Port-

land Gen. Elec. Co. v. United States, ( 1960) 189 F Supp 290.

757. 230

757. 205

NOTES OF DECISIONS

A city cannot by ordinance change the rates fixed in theschedule. Califorma - Ore. Power Co. v. City of Grants Pass,

1913) 203 Fed 173.

ATTY. GEN. OPINIONS: Whether , the Bonneville Power

project is subject to state regulation, 1940 - 42, p 515.

757. 210

NOTES OF DECISIONS

In establishing rates, property jointly used must be allo- cated on the basis of use. Pacific Tel. & Tel. Co. v. Hill,

1961) 229 Or 437, 365 P2d 1021, 367 P2d 790.

The commissioner may use any formula supported byfindings in the separation of property serving more than

one use. Id.

There was no basis in the record for determination that

use of interstate service was more valuable than use of

intrastate service. Id.


Co., ( 1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Right of utility to establish newrate schedule or to increase existing schedule, 1926 - 28, p

531.


VAYJP411


1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Reduction of rates when utilitycompany is being undersold in a certain locality by a com-

petitor, 1948 - 50, p 245.


757. 220

CASE CITATIONS: McPherson v. Pac Power & Light Co.,

1956) 207 Or 433, 296 P2d 932; Pacific Tel. & Tel. Co. v.

Hill, ( 1961) 229 Or 437, 365 P2d 1021, 367 P2d 790.


757. 225

NOTES OF DECISIONS

The fact that a city council has prescribed a rate otherthan the scheduled one does not authorize the utility tovary its charge. California - Ore. Power Co. v. City of GrantsPass, ( 1913) 203 Fed 173.

Where rates are in excess of the lawfully filed scheduleof rates, the patron must seek redress by proceeding directlyin the courts. McPherson v. Pac. Power & Light, ( 1956) 207

Or 433, 296 P2d 932.

FURTHER CITATIONS: Portland R. R., Light & Power Co.

v. Portland, ( 1914) 210 Fed 667.

757. 230

NOTES OF DECISIONS

Two letters specifying rates filed with the commissionerfulfilled the requirements of a valid schedule and order.

791

SUPERSEDED

757.235

McPherson v. Pac. Power & Light, ( 1956) 207 Or 433, 296

P2d 932.

757.235

NOTES OF DECISIONS

This section did not require the commissioner to hold a

hearing before ordering an emergency rate adjustment. McPherson v. Pac. Power & Light, ( 1956) 207 Or 433, 296

P2d 932.

FURTHER CITATIONS: Petition of Portland Elec. Power

Co., ( 1943) 97 F Supp 877.

757.240


1956) 207 Or 433, 296 P2d 932.


757.255

ATTY. GEN. OPINIONS: Effect upon this section of 1931

amendment of OC 61 -261 [ ORS 221. 4201, 1930 -32, p 647.

757.260



757.310


1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Jurisdiction of Federal Communi- cations Commission in matter of merger of telegraph com-

panies and of messages originating in a state and sent topoints outside, or originating in points outside and receivedin the state, 1942 -44, p 325; reduction of rates when utilitycompany is being undersold in a certain locality by a competitor, 1948 -50, p 245.

757.315

NOTES OF DECISIONS

This section did not prevent the commission from per-

mitting a utility to make a charge for hydrant service, though the franchise provided that such service shall be

free. City of Hillsboro v. Pub. Serv. Comm., ( 1920) 97 Or

320, 187 P 617, 192 P 390.

757.325

ATTY. GEN. OPINIONS: Reduction of rates when utility

company is being undersold in a certain locality by a competitor, 1948 -50, p 245.

757.405

ATTY. GEN. OPINIONS: Approval of stock issue pursuant

to stock option agreement between public utility and employes, prior to 1961 amendment, 1960 -62, p 108.

757.410

ATTY. GEN, OPINIONS: Approval of stock issue pursuant


757.415

ATTY. GEN. OPINIONS: Valuation of property to utilityissuing bonds for acquisition thereof, 1942 -44, p 83; approvalof stock issue pursuant to stock option agreement between

public utility and employes, prior to 1961 amendment, 1960 -62, p 108.

757.420

ATTY. GEN. OPINIONS: Approval of stock issue pursuant



757.480

ATTY. GEN. OPINIONS: Exclusive jurisdiction of FederalCommunications Commission in the matter of merger oftelegraph companies, and as to interstate messages, and

exclusive jurisdiction of State Public Utility Commissionerover intrastate messages, 1942 -44, p 325.

757.495

CASE CITATIONS: Oregon Tel. Co. v. Pub. Util. Commr., 1971) 5 Or App 231, 483 P2d 822.

792

757.606

CASE CITATIONS: Frazier v. W. Union Tel. Co., ( 1904) 45

Or 414, 78 P 330, 67 LRA 319; McLeod v. Pac. Tel. Co., ( 1908) 52 Or 22, 94 P 568, 95 P 1009, 15 LRA(NS) 810.

757.990



C J

SUPERSEDED

Chapter 758

Utility Rights of Way and Territory Allocation

Chapter 758

CASE CITATIONS: Portland Gen. Elec. Co. v. United

States, ( 1960) 189 F Supp 290.

ATTY. GEN. OPINIONS: Franchise for coaxial television

cable, 1952 -54, p 153.


758.010

NOTES OF DECISIONS

A subsequent grantee of a franchise to use a public high-

way was required to construct its system in such manneras not unduly to interfere with the activities of the priorgrantee. Yamhill County Mut. Tel. Co. v. Yamhdl Elec. Co., 1924) 111 Or 57, 224 P 1081, 33 ALR 373.

FURTHER CITATIONS: Northwestern Elec. Co. v. Zim-

merman, ( 1913) 67 Or 150, 135 P 330; Postal Tel. Co. v. State

Hwy. Comm., ( 1921) 276 Fed 958.

ATTY. GEN. OPINIONS: County courts designating locations of electric power lines along county roads, 1944 -46, p 210; whether an electric power company is entitled tolay its lines over and across the bed of a navigable riverwithout charge, 1944 -46, p 232; public road as encompassinggateway" in OCLA. 100 -1501 [ ORS 376. 115], 1950- 52, p 334;

franchise for coaxial television cable, 195456, p 153; authority for municipal utility transmission line over a river, 1962- 64, p 24.

758.015


758.020

ATTY. GEN. OPINIONS: Franchise for coaxial television

cable, 1952 -54, p 153.

758.035

NOTES OF DECISIONS

The power to regulate included the power to order aphysical connection between two telephone systems. Pacific

Tel. & Tel. Co. v. Wright- Dickenson Hotel Co., ( 1914) 214

Fed 666.

Requiring the making of physical connection betweentwo telephone systems did not constitute a taking of theproperty of either. Id.

The courts would not enjoin a telephone company fromwithdrawing a connection between its lines and a privatetelephone system until the commission had passed upon

the controversy. First Nat. Bank v. Pac. Tel. & Tel. Co.,

1916) 81 Or 307, 159 P 561.

793

758.400 to 758.475

ATTY. GEN. OPINIONS: Constitutionality, as to people' sutility districts, of providing for allocation of service areas, 1960 -62, p 199; telephone cooperative, which has been allo- cated an area, as a public utility, 1966 -68, p 188.

SUPERSEDED

Chapter 760

Railroad Regulation Generally

Chapter 760

CASE CITATIONS: Morgan v. Portland Traction Co., ( 1958)

222 Or 614, 331 P2d 344.

ATTY. GEN. OPINIONS: Availability for public inspectionof commissioner's files concerning railroads, 1966 -68, p 273.


760.005

NOTES OF DECISIONS

A common carrier is one who, by virtue of his calling, undertakes to transport persons or commodities from place

to place, offering his services to all such as choose to employ him. Anderson v. Smith- Powers Logging Co., ( 1914)

71 Or 276, 139 P 736, LRA 1916B, 1089.

A railroad built by the Federal Government for war purposes did not become a common carrier on its purchase

by a private corporation to transport its own lumber, eventhough it was operated for the public service in-the interim

under a permit from the federal agency in whom title wasvested. Pacific Spruce Corp. v. McCoy, ( 1923) 294 Fed 711.


1958) 222 Or 614, 331 P2d 344; State v. Portland TractionCo., ( 1963) 236 Or 38, 386 P2d 435.

ATTY. GEN. OPINIONS: Commissioner' s authority tocompel Portland and Multnomah County to allow tracksacross bridge, 1954 -56, p 202.

760.015

NOTES OF DECISIONS

1. In general

A railroad company will not be permitted to evade theobligations imposed upon it by law by turning its road overto a lessee. Lakin v. Willamette Valley & C.R. Co., ( ISM)

13 Or 436, 11 P 68, 57 Am Rep 25. The duties referred to exist independently of statute.

Southern Pac. Co. v. R.R. Comm., ( 1911) 60 Or 400, 119

P 727.

The authority of a state to control the rates of farecharged by common carriers operating within its limits isunquestionable. Portland Ry., Light & Power Co. v. R.R.

Comm., ( 1912) 229 US 397, 33 S Ct 820, 57 L Ed 1248. The power to compel railroads to render adequate service

and charge reasonable rates is legislative, and not judicial. Hammond Lbr. Co. v. Pub. Serv. Comm., ( 1920) 96 Or 595,

189 P 639, 9 ALR 1223.

2, Rates and services

The standard of reasonable compensation fluctuates with

changing conditions. Portland Ry., Light & Power Co. v.

R.R. Comm., ( 1910) 56 Or 468, 105 P 709, 109 P 273.

The word " adequate," as used in this section does not

refer only to existing facilities. Southern Pac. Co. v. R.R. Comm., ( 1911) 60 Or 400, 119 P 727.

The powers of the commission should be used to facilitate

existing business, and not speculatively to create businesswhere none exists. Id.

The carrier is entitled to earn enough, not only to meetthe expenses of current repairs, but also to afford means

of replacing the plant as it wears out. Hammond Lbr. Co. v. Pub. Serv. Comm., ( 1920) 96 Or 595, 189 P 639, 9 ALR

1223.

The only distinction between this section and ORS760. 135 is that the former applies to rates of individualcompanies, and the latter to joint rates. Oregon -Wash. R.

Nay. Co. v. McColloch, ( 1936) 153 Or 32, 55 P2d 1133.

FURTHER CITATIONS: Southern Pac. Co. v. Heltzel,

1954) 201 Or 1, 268 P2d 605; McPherson v. Pac. Power & Light Co., ( 1956) 207 Or 433, 296 P2d 932.

ATTY. GEN. OPINIONS: Commissioner's authority tocompel Portland and Multnomah County to allow tracksacross bridge, 195456, p 202.

760.050

NOTES OF DECISIONSThis statute operates as a. repeal of all ordinances in cities

of less than 100,000 population relating to the speed oftrains. Southern Pac. Co. v. Consol. Freightways, ( 1955) 203Or 657, 281 P2d 693.

FURTHER CITATIONS: Brown v. Spokane, Portland and

Seattle Ry., ( 1967) 748 Or 110, 431 P2d 817.

ATTY. GEN. OPINIONS: Authority to regulate noise ofrailroads, 1966 -68, p 457.

760. 105

NOTES OF DECISIONS

A recital in a rate schedule that " rates named herein...

will apply to directly intermediate points" did not obligatethe carrier to deliver freight at points between the stations

mentioned in the schedule. Schanen -Blair Co. v. So. Pac.

Co., ( 1913) 68 Or 106, 136 P 886.

The right to fix rates is lodged in the carrier in the firstinstance. Hammond Lbr. Co. v. Pub. Serv. Comm., ( 1920)

96 Or 595, 189 P 639, 9 ALR 1223.

FURTHER CITATIONS: Southern Pac. Co. v. Heltzel, 1954) 201 Or 1, 268 P2d 605.

760.120

CASE CITATIONS: Service Lbr. Co. v. Sumpter Valley R. Co., ( 1913) 67 Or 63, 135 P 539.

794

C

J

SUPERSEDED

760. 130

NOTES OF DECISIONS

A commodity imported into Oregon ceases to be an articleof interstate commerce when it reaches its destination, and

any subsequent transportation within the state is intrastate. Oregon Ry. & Nay. Co. v. Campbell, ( 1910) 180 Fed 253.

An order that relates solely to intrastate commerce willnot be invalidated on the theory that it constitutes a regulation of interstate commerce. Southern Pac. Co. v. Camp- bell, ( 1912) 230 US 537, 33 S Ct 1027, 57 L Ed 1610.

The commissioner may suspend only rates he is authorized to investigate, that is, new rates established or exist-

ing rates increased; he has no authority to suspend proposed reduced rates pending investigation of their reasonableness. Union Pac. R. Co. v. Bean, ( 1941) 167 Or 535, 119P2d 575.

The legislature has not given the commissioner power


760.135

NOTES OF DECISIONS

Use of the phrase " between points in this state" indicates

a purpose to limit the power of the commission to intrastate

commerce. Oregon Ry. & Nay. Co. v. Campbell, ( 1909) 173

Fed 957.


Co., ( 1956) 207 Or 433, 296 P2d 932.

760.170

CASE CITATIONS: Portland Ry., Light & Power Co, v. R.R. Comm., ( 1910) 56 Or 468, 105 P 709, 109 P 273; Service Lbr.

Co. v. Sumpter Valley R. Co., ( 1913) 67 Or 63, 135 P 539.

760.175

NOTES OF DECISIONS

Paragraph ( 1)( d) was enacted in order to remove all doubt

of the power of a municipal corporation to complain of

discrimination. Portland Ry., Light & Power Co. v. R.R.

Comm., ( 1910) 56 Or 468, 105 P 709, 109 P 273.

A state may prohibit unjust discrimination against particular localities. Portland Ry., Light & Power Co. v. R.R.

Comm., ( 1912) 229 US 397, 33 S Ct 820, 57 L Ed 1248. A former similar section did not make unlawful the grant

to a particular transfer company of the sole privilege ofsoliciting the patronage of passengers; it was designed toprohibit a railroad from showing preference as between itspatrons. Baggage & Omnibus Transfer Co. v. Portland,

1917) 84 Or 343, 164 P 570.

Giving advantage to a particular classification of trafficis not unjust discrimination. Southern Pac. Co. v. Heltzel,

1954) 201 Or 1, 268 P2d 605.

FURTHER CITATIONS: Ex parte Koehler, ( 1885) 23 Fed

529; Oregon Ry. & Nay. Co. v. Campbell, ( 1909) 173 Fed

957.

760. 180


760.205 to 760.255

CASE CITATIONS: Portland Traction Co. v. Hill, (1962) 231

Or 354, 372 P2d 501; State v. Portland Traction Co., ( 1963)

236 Or 38, 386 P2d 435.

760.540

760.205


Or 354, 372 P2d 501.

760.215


Or 354, 372 P2d 501.

760.225

CASE CITATIONS: Portland Traction Co. v. Hill, (1962) 231Or 354, 372 P2d 501.

760.235

NOTES OF DECISIONS

Reduction or discontinuance of service requires consid-

eration of ( 1) the cost of providing the present service, ( 2) the use by the public of the present service, and ( 3) availability and adequacy of other transportation facilities. Portland Traction Co. v. Hill, ( 1962) 231 Or 354, 372 P2d

501.

LAW REVIEW CITATIONS: 1 WI..I 211.

760.305

CASE CITATIONS: Oregon R. & Nay. Co. v. Campbell,

1909) 173 Fed 957.

ATTY. GEN. OPINIONS: Whether logging or other privaterailroads not doing business as a common carrier are required to file the annual report required by this section, 194446, p 63.

760.535

NOTES OF DECISIONS

The legislative intent, in enacting this section, was toauthorize the commissioner to award reparation whenever,

in the course of a rate investigation, he finds that shippers

have been damaged by the application of unjust and unreasonable rates. Oregon -Wash. R. & Nay. Co. v. McColloch,

1936) 153 Or 32, 55 P2d 1133.

This section limits the authority of the commissioner toaward reparation to cases involving exercise of an administrative function or discretion, and does not include cases

wherein the courts may give relief without a prior rate

ruling on the part of the commissioner. Id. Overcharges, that is, charges in excess of those fixed by

the commissioner or appearing in the published schedule, are not within the purview of the statute. Id.

The shipper is not by this section given the right to electwhether he will file a complaint with the commissioner or

institute an action in court. Id.


Co., ( 1956) 207 Or 433, 296 P2d 932.

760.540

NOTES OF DECISIONS

An order awarding reparation is not final, and no execution can issue on it. Oregon -Wash. R. & Nay. Co. v. McCol-

loch, ( 1936) 153 Or 32, 55 P2d 1133.

A court of equity has no jurisdiction to set aside an orderawarding reparation to a shipper. Id.

FURTHER CITATIONS: Kinzua Lbr. Co. v. Daggett, ( 1955)

203 Or 585, 593, 281 P2d 221.

795

SUPERSEDED

JChapter 761

Railroad Equipment, Buildings and Tracks

Chapter 761 1914A, 280, 36 LRA( NS) 358; Southern Pac. Co. v. R. R.

Comm., ( 1911) 60 Or 400, 119 P 727; Schanen -Blair Co. v.

CASE CITATIONS: Board of R.R. Commrs. v. Ore. Ry. & So. Pac. Co., ( 1913) 68 Or 106, 136 P 886. Nay. Co., ( 1888) 17 Or 65, 19 P 702, 2 LRA 195; State v.

Corvallis & E. R. Co., ( 1911) 59 Or 450,, 117 P 980; Ford LAW REVIEW CITATIONS: 1 WU 203. v. Ore. Elec. R. Co., ( 1911) 60 Or 278, 117 P 809, Ann Cas

r

796

SUPERSEDED

is

Chapter 763

Railroad Crossings

Chapter 763

CASE CITATIONS: Sisters of St. Mary, Inc. v. City ofBeaverton, ( 1970) 4 Or App 297, 478 P2d 412.


763.020

ATTY. GEN. OPINIONS: Authority of commissioner toorder erection of signs when highway is relocated, 1960 -62, p 101.

763.030

NOTES OF DECISIONS

Only after a hearing has the commission authority tomake the orders authorized by this section. Northern Pac. Ry. v. Pub. Serv. Comm., ( 1930) 47 F2d 778.

ATTY. GEN. OPINIONS: Commissioner's authority regarding alterations, 1960 -62, p 102; commissioner's authority toorder stop signs, 1960 -62, p 102.


763.040

NOTES OF DECISIONS

The commissioner has no authority, without a hearing, to compel a railroad, by merely ratifying the action of acounty, to pay a proportion of the expense of the elimina- tion of grade crossings incident to the relocation of a high-

way. Northern Pac. Ry. v. Pub. Serv. Comm., ( 1930) 47 F2d

778.

A statute authorizing a railroad to cross above the streetsof a city does not contemplate an obstruction dangerousto those making ordinary use of the highway. Krause v. So. Pac. Co., ( 1931) 135 Or 310, 295 P 966.

FURTHER CITATIONS: Union Pac. R. R. v. Hill, (1960) 220

Or 591, 349 P2d 1090.

I al

CASE CITATIONS: Union Pac. R.R. v. Hill, ( 1960) 220 Or

591, 349 P2d 1090.

763.080

ATTY. GEN. OPINIONS: Commissioner' s authority regarding alterations, 1960 -62, p 102.


763. 170

NOTES OF DECISIONS

This section does not contain implicit authority for commissioner to apportion costs between railroad and county. Union Pac. R.R. v. Hill, ( 1960) 220 Or 591, 349 P2d 1090.

This section was constitutional. Id.

This section provides that only the commissioner, andnot cities, may determine if a grade crossing is dangerous. Brown v. Spokane, Portland & Seattle Ry., ( 1967) 248 Or

110, 431 P2d 817.

FURTHER CITATIONS: Southern Pac. Co. v. Heltzel,

1954) 201 Or 1, 268 P2d 605.


797

SUPERSEDED

Chapter 764

Railroad Employes

764. 110

NOTES OF DECISIONS

The purpose of the full crew' law is to protect the safetyof employes and passengers, presumptively at least againstdangers incident to railroad operation in Oregon and not

in other states. Union Pac. R. Co. v. Anderson, ( 1941) 167

Or 687, 120 P2d 578.

FURTHER CITATIONS: Oregon, Calif. & E. R.R. v.

Blackmer, ( 1936) 154 Or 388, 59 P2d 694; Bangor and Aroo-

stock R.R. v. Bhd. of Locomotive Firemen and Enginemen,

1966) 253 F Supp 682; Spokane, Portland and Seattle Ry. Conductors and Brakemen v. Order of Ry. Conductors andBrakemen, ( 1967) 265 F Supp 892.

ATTY. GEN. OPINIONS: In what case section applies,

1920 -22, p 380; trains considered passenger and freight trainsunder statute, 1922 -24, p 580; application for statute relatingto full crew on train, 1926 -28, p 586.

764. 150

NOTES OF DECISIONS

Light repairs" are minimum repairs made to keep loco- motives in operating condition and in compliance with theregulations of the Interstate Commerce Commission, usingonly portable hand tools and only short and intermittentperiods of work. Southern Pac. Co. v. Brown, ( 1956) 207

Or 222, 295 P2d 861.

764. 160

NOTES OF DECISIONS

A railroad could not escape liability for a conductor' sarrest of a sober passenger on the pretext that he was

drunk, on the ground that the conductor was acting assheriff and had laid aside his character as defendant's servant. Spain v. Ore. -Wash. R. & Nay. Co., ( 1915) 78 Or 355,

360, 153 P 470, Ann Cas 1917E, 1104.

764.330


798

1 u

SUPERSEDED

Chapter 767

Motor Carriers

Chapter 767

NOTES OF DECISIONS

Former similar provisions, the Motor Transportation Act, were constitutional. Anderson v. Thomas, ( 1933) 144 Or 572,

26 P2d 60.

Former similar provisions were the sole source of the

commissioner's authority, conferring upon him no personaldiscretion. Pierce Freight Lines v. Flagg, ( 1945) 177 Or 1, 159 P2d 162.


23, 251 P2d 482; Southern Pac. Co. v. Heltzel, ( 1954) 201

Or 1, 262 P2d 605; Berry Trans., Inc. v. Heltzel, ( 1954) 202Or 161, 272 P2d 965; State v. O. K. Transfer Co., ( 1958) 215

Or 8, 330 P2d 510; State v. Koenig, ( 1959) 218 Or 86, 342P2d 139; Bend- Portland Truck Serv., Inc. v. Pub. Util.

Commr., ( 1960) 221 Or 514, 351 P2d 1117; Rogers Constr.

Co. v. Hill, ( 1963) 235 Or 352, 384 P2d 219; Arrow Trans.

Co. v. Hill, (1963) 236 Or 174, 387 P2d 559; Mt. Hood Stages,

Inc. v. Hill, ( 1966) 243 Or 283, 413 P2d 392.

ATTY. GEN. OPINIONS: Application to farmer incidentallyselling lumber from his timber, 1948 -50, p 65; computationof use tax when load exceeds legal weight, 1948 -50, p 303; obliteration of school bus markings when motor vehicle is

not used for school purposes, 1948 -50, p 310; computationof tax on motor vehicles of carrier operating within a cityand also beyond the three -mile limit, 1950 -52, p 262; commissioner' s jurisdiction to review rates fixed by city ordinance to be charged by motor carriers in transporting passengers, 1956 -58, p 223; chapter as taxing and regulatorylaw, 1958 -60, p 34; construing sand and gravel trucks asapplied to trailer equipped with hopper -type mechanism,

1958 -60, p 375; permit requirements as applied to a manufacturer's truck tractors when transporting its semitrailersto dealers, 1958 -60, p 403; commissioner' s jurisdiction overcarrier operating on private roads and public highways, 1958 -60, p 406; commissioner' s jurisdiction over vehiclestransporting agricultural spray materials and empty fertilizer applicators over public highways, 1960 -62, p 68; unionhigh school charging private school for transporting schoolchildren, 1962 -64, p 36; taxation of common and contractcarriage performed by or for irrigation and drainage districts, 1962 -64, p 158; applicability of chapter to Board ofControl -parent contracts to transport mentally retarded today -care centers, 1964 -66, p 326; application to transportation by a farmer of scrap metal accumulated as an incidentto farm operation, 1964 -66, p 353; validity of omnibus legislation proposing budget cuts, 1966 -68, p 402; regulation ofbus line operating within or outside of mass transit district,

1970) Vol 35, p 383; application to mass transit districtoperations, ( 1971) Vol 35, p 672.


767.005

NOTES OF DECISIONS

Notwithstanding assumption by lessee of liability for safecarriage, lessor may be so far in control of the movementthat his status will be that of a common or contract carrier. State v. O.K. Transfer Co., ( 1958) 215 Or 8, 330 P2d 510.

The fact the drivers are chosen or employed by the vehicle owner may be alone sufficient to remove the transactionfrom a true " U- drive" status and denominate it one ofpublic carrier service. Id.

When lessor furnishes equipment accompanied by its owndrivers, it raises a rebuttable presumption of control of the

movement by the lessor, and this presumption continuesin the absence of a clear showing that the lessee shipperhad exclusive right and privilege of control. Id.

With reference to leased truck operations, whether the

operation is that of the carrier or whether it is a private

carriage performed by the shipper is essentially determinedby who has the right to control, direct and dominate theperformance. Id.

FURTHER CITATIONS: Portland Van & Storage Co. v.

Hoss, ( 1932) 139 Or 434, 9 P2d 122, 81 ALR 1136; Brownv. Bonesteele, ( 1959) 218 Or 313, 344 P2d 928; Mitchell Bros.

Truck Lines v. Hill, ( 1961) 227 Or 474, 363 P2d 49; ArrowTrans. Co. v. Hill, ( 1963) 236 Or 174, 387 P2d 559; Bohemia

Lbr. Co. v. Haley, ( 1969) 252 Or 349, 449 P2d 443; PortlandStages, Inc. v. Portland, ( 1969) 252 Or 633, 450 P2d 764.

ATTY. GEN. OPINIONS: Computation of use tax when load

exceeds legal weight, 1948 -50, p 303; tariffs filed under statelaw as not applying to motor carriers transporting propertyfor the United States, 1958 -60, p 339; use of state -ownedcars to transport patients for hire from Portland area to

Dammasch State Hospital, 1958 -60, p 385; permit requirements as applied to a manufacturer's truck tractors when

transporting its semitrailers to dealers, 1958 -60, p 403; commissioner's jurisdiction over persons operating as common, contract or private carriers primarily on private thoroughfares, 1958 -60, p 406; commissioner' s jurisdiction over vehicles transporting agricultural spray materials and emptyfertilizer applicators on public highway, 1960 -62, p 68; application to hauling gravel by or for drainage and irrigationdistrict, 1962 -64, p 158; application to mass transit districtoperations, ( 1971) Vol 35, p 672.

767.010

NOTES OF DECISIONS

Notwithstanding assumption by lessee of liability for safecarriage, lessor may be so far in control of the movementthat his status will be that of a common or contract carrier. State v. O.K. Transfer Co., ( 1958) 215 Or 8, 330 P2d 510.

The fact the drivers are chosen or employed by the vehicle owner may be alone sufficient to remove the transactionfrom a true " U- drive" status and denominate it one ofpublic carrier service. Id.

When lessor furnishes equipment accompanied by its own

799

SUPERSEDED

767.015

drivers, it raises a rebuttable presumption of control of the

movement by lessor, and this presumption continues in theabsence of a clear showing that lessee shipper had exclusiveright and privilege of control. Id.

With reference to leased truck operations, whether the

operation is that of the carrier or whether it is a private

carriage performed by the shipper is essentially determinedby who has the right to control, direct and dominate theperformance. Id.

The definition of motor vehicles is intended to apply onlyto those vehicles having a connection with the transportation of persons or property. Rogers Constr. Co. v. Hill,

1963) 235 Or 352, 384 P2d 219.

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: Brown v. Bonesteele, ( 1959) 218Or 313, 344 P2d 928.

ATTY. GEN, OPINIONS: Computation of tax on motor

vehicles of carrier operating within a city and also beyondthe three -mile limit, 1950 -52, p 262; exemption of stationwagon used to transport students, 1952 -54, p 173; effect ofoperating motor vehicle outside city beyond three -milelimit, 1952 -54, p 244; construing sand and gravel trucks asapplied to trailer equipped with hopper -type mechanism,

1958.60, p 375; permit requirements as applied to a manufacturer's truck tractors when transporting its semitrailersto dealers, 1958 -60, p 403; commissioner' s jurisdiction overpersons operating as common, contract or private carriersprimarily on private thoroughfares, 1958 -60, p 406; commissioner's jurisdiction over vehicles transporting agriculturalspray materials and empty fertilizer applicators on publichighway, 1960 -62, p 68; application to truckers haulinggravel for drainage district, 1962 -64, p 158; applicability ofchapter to Board of Control- parent contracts to transport

mentally retarded to day -care centers, 1964 -66, p 326; construing motor vehicles as applied to proposed use of highway funds, ( 1970) Vol 35, p 198.

767.015

CASE CITATIONS: Rogers Constr. Co. v. Hill, ( 1963) 235Or 352, 384 P2d 219.

ATTY. GEN. OPINIONS: Application to farmer incidentallyselling lumber from his timber, 1948 -50, p 65; exemption ofstation wagon used to transport students, 1952 -54, p 173;

transporting rodeo or racing horses or cattle as privatecarriers, 1956 -58, p 131; permit requirements as applied toa manufacturer's truck tractors when transporting its semitrailers to dealers, 1958 -60, p 403; commissioner's jurisdiction over persons operating as common, contract or privatecarriers primarily on private thoroughfares, 1958 -60, p 406; interstate toll bridge as public highway, 1960 -62, p 3; commissioner's jurisdiction over vehicles transporting agricul-

tural spray materials and empty fertilizer applicators onpublic highway, 1960 -62, p 68; application to truckers hauling gravel for drainage district, 1962 -64, p 158; applicationto mass transit district operations, ( 1971) Vol 35, p 672.

767.020

NOTES OF DECISIONS

A former similar declaration of purpose and policy wasentitled to the gravest consideration. Anderson v. Thomas,

1933) 144 Or 572, 26 P2d 60.

Prior to the 1969 amendment to this section, the purpose

of the law was the protection of highways and general

public thereupon. Interstate Indem. Co. v. Simpson, ( 1957)

155 F Supp. 855.

One of the purposes for the permit system is to make

certain that only qualified persons conduct motor carrieroperations. Kramer v. Haley, ( 1968) 250 Or 87, 439 P2d 571.

FURTHER CITATIONS: Rogers Constr. Co. v. Hill, ( 1963) 235 Or 352, 384 P2d 219; Arrow Trans. Co. v. Hill, ( 1963) 236 Or 174, 387 P2d 559; Mt. Hood Stages, Inc. v. Hill, ( 1966) 243 Or 283, 413 P2d 392.

ATTY. GEN. OPINIONS: Effect of death of one partner on

permit issued in partnership name, effect of death of permitholder, 1958 -60, p 349.


767.025

CASE CITATIONS: Rogers Constr. Co. v. Hill, ( 1963) 235Or 352, 384 P2d 219.

ATTY. GEN. OPINIONS: Application to farmer incidentallyselling lumber from his timber, 1948 -50, p 65; exemption ofstation wagon used to transport students, 1952 -54, p 173; tariffs filed under state law as not applying to motor carriers transporting property for the United States, 1958 -60, p339; use of state -owned cars to transport patients for hirefrom Portland area to Dammasch State Hospital, 1958 -60,

p 385; charging private school for transportation of schoolchildren, 1962 -64, p 36; irrigation and drainage districts asmunicipalities, 1962 -64, p 158; applicability of chapter toBoard of Control- parent contracts to transport mentallyretarded to day -care centers, 1964 -66, p 326; application tomass transit district operation, ( 1971) Vol 35, p 672.

767.030

ATTY. GEN. OPINIONS: Authority of cooperative to transport supplies to and from market for members, 193840,

p 697; license needed by farmer who occasionally uses histruck to haul lumber, 1948 -50, p 65; exemption of stationwagon used to transport students, 1952 -54, p 173; transporting livestock in trucks bearing special farm licensein connection with the operating of a farm, 1956 -58, p 131; application to farm truck hauling for a drainage district, 1962 -64, p 158; application of subsection ( 1) ( a) to transportation of scrap metal from farm to dealer, 1964 -66, p 353.

767.035

NOTES OF DECISIONS

Subsection ( 1) was not an unconstitutional delegation of

legislative power to the city council. Portland Stages, Inc. v. City of Portland, ( 1969) 252 Or 633, 450 P2d 764.

Subsection ( 1) does not conflict with subsection ( 2) ofORS 221. 420. Id.

FURTHER CITATIONS: Berry Trans., Inc. v. Heltzel,

1954) 202 Or 161, 272 P2d 965; Bohemia Lbr. Co. v. Haley, 1969) 252 Or 349, 449 P2d 443.

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

portation of passengers in and around cities, 1952 -54, p 244; authority over public motor carriers, 1956 -58, p 223; construction of this section in relation to regulation and taxation of persons and motor vehicles under this chapter,

1958-60, p 34; commissioner's jurisdiction over persons operating as common, contract or private carriers primarilyon private thoroughfares, 1958 -60, p 406; commissioner' sjurisdiction over vehicles transporting agricultural spraymaterials and empty fertilizer applicators on public highway, 1960 -62, p 68; " implements of husbandry" defined, 1960 -62, p 68; defining " forest products," 1960 -62, p 299;

800

r

1 u

SUPERSEDED

exceptions when using Bureau of Land Management road, 1966 -68, p 412; application to mass transit district operations, ( 1971) Vol 35, p 672.

767.105

NOTES OF DECISIONS

The business of -renting vehicles does not so affect thepublic interest as to sustain the validity of regulationspermitting creation of monopolies. Hertz Corp. v. Heltzel, 1959) 217 Or 205, 341 P2d 1063.

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: Berry Trans., Inc. v. Heltzel, ( 1954) 202 Or 161, 272 P2d 965; Kramer and Smith v. Haley, ( 1968) 250 Or 92, 439 P2d 573.


exceeds legal weight, 1948 -50, p 303; empty semitrailer, pulled by truck tractor and intended for sale in anotherstate, as motor vehicle engaged in transportation, 1958 -60,

p 403; commissioner's jurisdiction over persons operatingas common, contract or private carriers primarily on private

thoroughfares, 1958 -60, p 406; commissioner's jurisdictionover vehicles transporting agricultural spray materials andempty fertilizer applicators on public highway, 1960 -62, p68; application to truckers hauling gravel for drainage district, 1962- 64, p 158.


767.110

CASE CITATIONS: Portland Pendleton Motor Trans. Co.

v. Heltzel, ( 1953) 197 Or 644, 255 P2d 124.

ATTY. GEN. OPINIONS: Operative date of 1951 amend-

ment, 1952 -54, p 53.

767. 120


767.130

NOTES OF DECISIONS

Intentional" violation is an intentional doing of an actwhich violates the statute with the intent to act illegally. Horger v. Flagg, ( 1949) 185 Or 109, 202 P2d 526.

Repeated violation of an Act does not of necessity renderthe actor a habitual violator. Id.



767.135

NOTES OF DECISIONSPublic interest" rather than " public convenience and

necessity" is the criterion for granting permits. ArrowTrans. Co. v. Hill, (1963) 236 Or 174, 387 P2d 559; Mt. HoodStages, Inc. v. Hill, (1966) 243 Or 283, 413 P2d 392; Mt. Hood

Stages, Inc. v. Haley, ( 1970) 4 Or App 385, 478 P2d 645, SupCt review denied.

The commissioner's, findings are binding on the court, inthe event of judicial review, if supported by cogent, competent, material and substantial evidence. Borich Transfer Co.

v. Haley, ( 1970) 2 Or App 606, 469 P2d 638, Sup Ct review

767. 145

denied; Mt. Hood Stages, Inc. v. Haley, ( 1970) 4 Or App385, 478 P2d 645,. Sup Ct review denied.

The purpose of requiring the commissioner to ascertainthe qualifications of an applicant before issuing him a license was to avoid duplication of equipment and preventruinous competition. Warren v. Bean, ( 1941) 167 Or 116, 115

P2d 167.

The business of renting vehicles does not so affect thepublic interest as to sustain the validity of regulationspermitting creation of monopolies. Hertz Corp. v. Heltzel, 1959) 217 Or 205, 341 P2d 1063.

Commissioner under the circumstances properly deniedtransfer of privilege to carry bulk petroleum products. Bend- Portland Truck Serv., Inc. v. Pub. Util. Commr., (1960)

221 Or 514, 351 P2d 1117.

Applicants' burden of showing that the issuance of apermit to them would be in the public interest does• notrequire proof that their continued competition would not

impair the ability of protestants to adequately serve thepublic. Arrow Trans. Co. v. Hill, ( 1963) 236 Or 174, 387 P2d559.

There is a doctrine neither for nor against permitting acarrier to follow the traffic. Id.

This section does not require a permit to be granted in

the absence of a finding that the permit would impair theability of an existing carrier to continue its service. Mt. Hood Stages, Inc. v. Haley, ( 1970) 4 Or App 385, 478 P2d645, Sup. Ct review denied.

The commissioner did not act arbitrarily in granting apermit to motor carrier to operate as a common carrier

where the territory was already served by other carriers, and that order was not based solely on abnormal conditions. Pierce Freight Lines v. Flagg, ( 1945) 177 Or 1, 159 P2d 162.

The commissioner's finding that plaintiffs were not .fi- nancially responsible nor adequately equipped to serve, andthat their operation would be contrary to public interest, required him to deny their application for a license. Warrenv. Bean, ( 1941) 167 Or 116, 115 P2d 167.

An applicant seeking to set aside an order denying alicense was required to show by clear and satisfactoryevidence that the order was unsupported by substantialevidence, arbitrary, or unreasonable. Id.

Denial of a license application did not tend to create a

monopoly, where evidence showed that there were manyintrastate carriers operating at small profit or at a loss, andthat there was already too much competition. Id.

It was a question for the commissioner whether a permitshould be granted -to an intrastate motor carrier, and his

conclusions should not be disturbed unless unsupported bysubstantial evidence. Id.

FURTHER CITATIONS: Anderson v. Thomas, ( 1933) 144

Or 572, 26 P2d 60; Berry Trans., Inc. v. Heltzel, ( 1954) 202Or .161, 272 P2d 965; State v. O.K. Transfer Co., ( 1958) 215

Or 8, 330 P2d 510; Mt. Hood Stages, Inc. v. Haley, .(1969) 253 Or 28, 453 P2d 435; State v. McMaster, ( 1971) 259 Or

291, 486 P2d 567.


permit issued in partnership name, effect of death of permitholder, 1958 -60, p 349; construing sand and gravel trucksas applied to trailer equipped with hopper -type mechanism;

1958 -60, p 375.

LAW REVIEW CITATIONS: 39 OLR 143; 43 OLR 278 -280; 1 WW 208, 210, 212, 213.

801

767. 145

CASE CITATIONS: Berry Trans., Inc. v. Heltzel, ( 1954) 202Or 161, 272 P2d 965.

SUPERSEDED

767. 150

ATTY. GEN. OPINIONS: Application to multiple vehicle

combination hauling sand and gravel, 1958 -60, p 375; application to truckers hauling gravel for drainage district, 1962 -64, p 158.

767. 150

ATTY. GEN. OPINIONS: Application to truckers haulinggravel for drainage district, 1962 -64, p 158.

767. 165

NOTES OF DECISIONS

Reversible error was not committed in submitting aninstruction to the jury based upon recommendations madeby State Highway Commission which were thought to beregulations of the State Industrial Accident Commission

now Workmen' s Compensation Board). Hon v. Moore Tbr. Prod., Inc., ( 1959) 215 Or 628, 337 P2d 321.

ATTY. GEN. OPINIONS: Construing " log, pole or piling" as applied to peeler cores, 1960 -62, p 71; application ofregulation to county roads, 1960 -62, p 251; canceling privilege to haul logs for hauling on weekends, 1964 -66, p 112.

767. 175


Or 8, 330 P2d 510.


exceeds legal weight, 1948 -50, p 303; permit requirementsas applied to a manufacturer' s truck tractors when trans-

porting its semitrailers to dealers, 1958 -60, p 403.

767.180

ATTY. GEN. OPINIONS: Construing sand and gravel trucksas applied to trailer equipped with hopper -type mechanism,

1958 -60, p 375.

767.185

NOTES OF DECISIONSUpon change from unincorporated to corporate status,

the commissioner could delete a privilege granted under the

prior permit upon a finding that the privilege had neverbeen exercised and others could adequately provide theservice in the region. Bend - Portland Truck Serv., Inc. v.

Pub. Util. Commr., (1960) 221 Or 514, 351 P2d 1117.

The commissioner did not abuse his discretion by findingthat the applicant had failed to meet the burden of provingthat the transfer of the entire permit would be in the public

interest. Borich Transfer Co. v. Haley, ( 1970) 2 Or App 606, 469 P2d 638, Sup Ct review denied.

For all practical purposes, granting of a transfer is governed by the same standards as the granting of a newpermit. Id.



767. 190

NOTES OF DECISIONS

Under former provisions, the commissioner had authorityto keep competition under control, and it was his duty soto do. Pierce Freight Lines v. Flagg, ( 1945) 177 Or 1, 159P2d 162.

Circuit court for Marion County has exclusive venue of

suit to enjoin enforcement of commissioner' s order. Ander-

son v. Heltzel, ( 1952) 197 Or 23, 251 P2d 482.

Unauthorized change of operation from contract to pri-

vate carrier is cause for discriminatory action by commissioner. Interstate Indem. Co. v. Simpson, ( 1957) 155 F Supp855.

Under a former statute, plaintiffs " anywhere- for - hire"

permit was revoked where it was shown that he was oper-

ating as a fused termini carrier without a permit. Horgerv. Flagg, ( 1948) 185 Or 109, 201 P2d 515.

Operator could not avoid cancellation of permit for non-

use by operating in violation thereof. Wheeler v. Haley, 1967) 248 Or 343, 434 P2d 335.

Statements regarding ownership, possession and controlof equipment were false and sufficient basis for cancellation

of the permit. Kramer v. Haley, ( 1968) 250 Or 87, 439 P2d571.

FURTHER CITATIONS: State v. O.K. Transfer Co., ( 1958)

215 Or. 8, 330 P2d 510.




767. 195

NOTES OF DECISIONS

The requirement of a bond is not for the benefit of themotor carrier but for adequate protection of the interests

of the public. Duffy v. Ore. Auto. Ins. Co., ( 1933) 142 Or

698, 21 P2d 211.

Both contract and private carriers are required to obtain

liability insurance of the same prescribed amount. InterstateIndem. Co. v. Simpson, ( 1957) 155 F Supp 855.

Insurance policy required by this section may be reformedto reflect intention of parties, but reformation cannot affect

rights of third parties which accrued while indorsement

obligating insurer to pay claims against insured withoutdefense as to policy violations by insured was still in effect. Id.

Insurer whose policy had indorsement required for statepermit was not relieved of liability because insured, holderof a private carrier's permit, was not operating as a privatecarrier at time of accident. Id.

FURTHER CITATIONS: Horger v. Flagg, ( 1948) 185 Or 109, 201 P2d 515; State v. O.K. Transfer Co., ( 1958) 215 Or 8,

330 P2d 510; Hertz Corp. v. Heltzel, ( 1959) 217 Or 205, 341P2d 1063; Gowin v. Heider, ( 1963) 237 Or 266, 386 P2d 1.

ATTY. GEN. OPINIONS: Applicability of chapter to Boardof Control -parent contracts to transport mentally retardedto day -care centers, 196466, p 326.

767.205

NOTES OF DECISIONS

Insurance policy required by ORS 767. 195 may be re- formed to reflect intention of parties, but reformation cannot affect rights of third parties which accrued while an

indorsement obligating insurer to pay claims against insured without defense as to policy violations by insured wasstill in effect. Interstate Indem. Co. v. Simpson, ( 1957) 155

F Supp 855. Insurer whose policy had indorsement required for state

permit was not relieved of liability because insured, holderof a private carrier' s permit, was not operating as a privatecarrier at time of accident. Id.

802

is

SUPERSEDED

J

767.315

NOTES OF DECISIONSUnder a former statute, the word " transportation" in-

cluded waiting periods, and sums charged for such periodsconstituted a part of gross earnings. Consolidated Freight -

ways, Inc. v. Flagg, ( 1947) 180 Or 442, 176 P2d 239, 177 P2d422.

767.405

CASE CITATIONS: Brown v. Bonesteele, ( 1959) 218 Or 312,

344 P2d 928.

767.410

CASE CITATIONS: Berry Trans., Inc. v. Heltzel, ( 1954) 202Or 161, 272 P2d 965.

ATTY. GEN. OPINIONS: Constitutionality of tariff provisions as applied to private carriers transporting propertyfor United States, 1958 -60, p 339.

767.415

CASE CITATIONS: Horger v. Flagg, ( 1948) 185 Or 109, 201P2d 515; Berry Trans., Inc. v. Heltzel, ( 1954) 202 Or 161, 272 P2d 965.

767.420

CASE CITATIONS: Smith Canning & Freezing Co. v. LloydKrause, Inc., ( 1968) 398 F2d 128.

ATTY. GEN. OPINIONS: Construing " log, pole or piling" as applied to peeler cores; 1960 -62, p 71.

767.430

ATTY. GEN. OPINIONS: Foreign show company as required to obtain permit before operating motor vehicles intransporting carnival equipment in this state, 1934 -36, p 475.

767.445

NOTES OF DECISIONS

Violation of a rule or regulation issued by a public authority is negligence per se. Oregon Transfer Co. v. TyeeConstr. Co., ( 1960) 188 F Supp 647.

767.450

NOTES OF DECISIONS

Violation of a rule or regulation issued by a public authority is negligence per se. Oregon Transfer Co. v. TyeeConstr. Co., ( 1960) 188 F Supp 647.

767.470

NOTES OF DECISIONS

Unauthorized change of operation from contract to pri-

vate carrier is cause for discriminatory action by commissioner. Interstate Indem. Co. v. Simpson, ( 1957) 155 F Supp855.

The statute imposes a penalty and should be strictlyconstrued in favor of the one against whom the imposition

of the penalty is sought. Kramer and Smith v. Haley, ( 1968) 250 Or 92, 439 P2d 573.

Every day's continuance" of a violation refers to operation of the business by motor carriers, not to each vehicleoperated without a permit. Id.

767.820

FURTHER CITATIONS: State v. O. K. Transfer Co., ( 1958)

215 Or 8, 330 P2d 510.

ATTY. GEN. OPINIONS: Tariffs filed under state law as

not applying to motor carriers transporting property for theUnited States, 1958 -60, p 339.


767.605

ICASE CITATIONS: Berry Trans., Inc. v. Heltzel, ( 1954) 202Or 161, 272 P2d 965.

767.630

ATTY. GEN. OPINIONS: Authority of commissioner tocompromise with motor carriers as to the amount of fees,

charges or taxes due the state, 1936 -38, p 341.

767.635

ATTY. GEN. OPINIONS: Validity of proposed use of taxfunds to pay irrigation district lump -sum settlement offuture assessments on land taken from district for highwaypurposes, 1960 -62, p 201; when revenue is apportioned tocities and counties, 1960 -62, p 338.

767.805 to 767.880


767.815


v. Heltzel, ( 1953) 197 Or 644, 255 P2d, 124; Hertz Corp. v. Heltzel, ( 1959) 217 Or 205, 341 P2d 1063; Mitchell Bros. Truck

Lines v. Hill, ( 1961) 227 Or 474, 363. P2d 49; Rogers Constr. Co, v. Hill, ( 1963) 235 Or 352, 384 P2d 219.


exceeds legal weight, 1948 -50, p 303; operative date of 1951amendment, 1952 -54, p 53; delinquency date for additionaltaxes imposed under 1951 amendment, 1952 -54, p 56; construing sand and gravel trucks as applied to trailer equippedwith hopper -type mechanism, 1958 -60, p 375; commissioner's jurisdiction over carrier operating on private roadsand public highways, 1958 -60, p 406; interstate toll bridgeas public highway, 1960 -62, p 3; construing "' log, pole orpiling" as applied to peeler cores, 1960 -62, p 71; validity ofproposed use of tax funds to pay irrigation district lump - sum settlement of future assessments on land taken from

district for highway purposes, 1960 -62, p 201; collectingdelinquencies after discharge in bankruptcy, 1962 -64, p 31; application to truckers hauling gravel for drainage district, 1962 -64, p 158; application to mass transit district operations, ( 1971) Vol 35, p 672.

767.820


v. Heltzel, ( 1953) 197 Or 644, 255 P2d 124; Mitchell Bros.

Truck Lines v. Hill, ( 1961) 227 Or 474, 363 P2d 49; RogersConstr. Co. v. Hill, ( 1963) 235 Or 352, 384 P2d 219.

ATTY. GEN. OPINIONS: Tolerance weight as subject to

user tax, 1948 -50, p 415; computation of tax on motor vehicles of carrier operating within a city and also beyond thethree -mile limit, 1950 -52, p 262.

803

SUPERSEDED

767.825

767.825

ATTY. GEN. OPINIONS: Portland Pendleton Motor Trans. Co. v. Heltzel, ( 1953) 197 Or 644, 255 P2d 124; application

to multiple vehicle combination hauling sand and gravel, 1958 -60, p 375; application to carriers transporting peelercores, 1960 -62, p 71.

767.830

CASE CITATIONS: Portland Pendleton Motor Trans. Co. v. Heltzel, ( 1953) 197 Or 644, 255 P2d 124.

ATTY. GEN. OPINIONS: Validity of proposal to permitcounties to impose occupational tax on vehicles usingcounty roads, 1950 -52, p 116.

767.840

NOTES OF DECISIONS

If a formula adopted is arbitrary or based on erroneousprinciples which will not reasonably reflect the tax due, theassessment is void. Mitchell Bros. Truck Lines v. Hill, (1961) 227 Or 474, 363 P2d 49.

If the taxpayer fails to keep proper records or exactinformation, the administrative agency may adopt a formula calculated to reach a reasonable result. Id.

FURTHER CITATIONS: State v. Koenig, ( 1959) 218 Or 86, 342 P2d 139.

ATTY. GEN. OPINIONS: Checking and auditing of monthlyreports of motor carriers and collection of fees, 1932 -34, p303; authority of commissioner to compromise with motorcarriers as to the amount of fees, charges or taxes due the

state, 1936 -38, p 341; imposition of penalties when carriers, through clerical errors or mistakes, failed to report and payin full the tax, where such carriers have later paid the

remainder of the fees due, 1936 -38, p 493; delinquency datefor additional taxes imposed under 1951 amendment, 1952-

54, p 56; collecting delinquencies after discharge in bankruptcy, 1962 -64, p 31.

767.850

NOTES OF DECISIONS

Any form of notice substantially complying with the

statute and due process is sufficient. State v. Koenig, ( 1959) 218 Or 86, 342 P2d 139.

ATTY. GEN. OPINIONS: Collecting delinquencies after discharge in bankruptcy, 1962 -64, p 31.

767.855

NOTES OF DECISIONS

In the absence of a petition for reassessment, actions

instituted for collection are not subject to collateral attack

except for fraud or jurisdictional grounds. State v. Koenig, 1959) 218 Or 86, 342 P2d 139.

FURTHER CITATIONS: Mitchell Bros. Truck Lines v. Hill,

1961) 227 Or 474, 363 P2d 49.

LAW REVIEW CITATIONS: I WU 209.

767.860

CASE CITATIONS: State v. Koenig, ( 1959) 218 Or 86, 342P2d 139.

767.865

ATTY. GEN. OPINIONS: Collecting delinquencies after discharge in bankruptcy, 1962 -64, p 31. _

767.990


Or 8, 330 P2d 510.

ATTY. GEN. OPINIONS: Computation of tax on motor

vehicles of carrier operating within a city and also beyondthe three -mile limit, 1950 -52, p 262; effect of operating motorvehicle outside city beyond three -mile limit, 1952 -54, p 244; tariffs filed under state law as not applying to motor carriers transporting property for the United States, 1958 -60, p339; commissioner' s jurisdiction over carrier operating onprivate roads and public highways, 1958 -60, p 406; commissioner's jurisdiction over vehicles transporting agricultural

spray materials and empty fertilizer applicators over publichighways, 1960 -62, p 68; taxation of common and contractcarriage performed by or for irrigation and drainage districts, 1962 -64, p 158.

804

SUPERSEDED

Chapter 772

Rights of Way for Public Uses

Chapter 772

CASE CITATIONS: State Hwy. Comm. v. Bailey, ( 1957) 212Or 261, 319 P2d 906.

LAW REVIEW CITATIONS: 46 OLR 1 - 187; 47 OLR 41.

772.010

NOTES OF DECISIONS

See also cases under ORS chapter 35. 1. In general

An easement is all that can be acquired by a taking ofproperty for a right of way. Land can only be taken forthe particular use for which it is sought to be appropriated.

Oregon Ry. & Nay. Co. v. Ore. Real Estate Co., ( 1882) 10

Or 444.

Property already appropriated to public use could againbe seized for a different purpose of the same kind. Little

Nestucca Toll -Road Co. v. Tillamook County, ( 1897) 31 Or1, 6, 48 P 465, 65 Am St Rep 802.

Lease of a county road to a toll road company was notan agreement executed under this section. Tillamook

County v. Wilson R. Road Co., ( 1907) 49 Or 309, 89 P 958.

A telegraph company may condemn a right of way forits line over the right of way of a railroad company. PacificPostal Tel. Cable Co. v. Ore. & C.R. Co., ( 1908) 163 Fed

967.

The grant of the power of eminent domain to municipal

corporations is within the plenary power of the legislature. YamhiH Elec. Co. v. City of McMinnville, ( 1929) 130 Or 309, 274 P 118, 280 P 504.

2. Purpose of taking propertyThe right of eminent domain can' be exercised only for

a use beneficial to the public. Bridal. Veil Lbr. Co. v. John-

son, ( 1896) 30 Or 205, 210, 46 P 790, 60 Am St Rep 818, 34 LRA 368; Oswego D. & R. Co. v. Cobb, ( 1913) 66 Or

587, 135 P 181.

The question of whether a proposed use is a public one

is a question of fact. Bridal Veil Lbr. Co.' v. Johnson, ( 1896)

30 Or 205, 46 P 790, 60 Am St Rep 818, 34 LRA 368; ApexTrans. Co. v. Garbade, ( 1898) 32 Or 582, 52 P 573, 54 P 367,

882, 62 LRA 513.

The right granted to a corporation to exercise the power

of eminent domain is available only to carry out the purposeof its organization. State v. Portland Gen. Elec. Co., ( 1908)

52 Or 502, 95 P 722, 98 P 160.

The taking of property for the line of a canal was fora public use. Dalles Lbr. Co. v. Urquhart, ( 1888) 16 Or 67,

19 P 78.

A former similar statute providing for the condemnationof a right of way did not authorize a street railway companyto condemn private property for a right of way. Thomp- son-Houston Elec. Co. v. Simon, ( 1890) 20 Or 60, 25 P 147,

23 Am St Rep 86, 10 LRA 251. Irrigation company seeking to condemn lands for irriga-

tion system to supply water to landowners adjacent to itscanal, and to irrigate land which it owned, was within the

requirements of the statute. Eastern Ore. Land Co. v. Wil-

low R. Land & Irr. Co., ( 1913) 122 CCA 636, 204 Fed 516.

FURTHER CITATIONS: Oregonian R. Co. v. Hill, ( 1881)

9' Or 377.

772.025


772.035


772.050


772.055

NOTES OF DECISIONS

Increased value" refers to the land to be appropriated

and not to the residue, and the landowner cannot recoverfor damages to land not taken unless benefited over andabove all damages. Oregon Cent. R. Co. v. Wait, ( 1869) 3Or 91.

No provision for merely " securing" compensation fortaking property under the right of eminent domain has beenmade. State v. Bradshaw, ( 1911) 59 Or 279, 282, 283, 117P 284.

An owner cannot have any increased value which accruedto his land from a proposed improvement added to hisdamages, under the statute, and the condemnor cannot

have such increased value treated as part of the compensa-

tion and deducted from the amount which would compen-

sate if the land were purchased for any other purpose. Portland - Oregon City R. Co. v. Penny, ( 1916) 81 Or 81, 158P 404.

The measure of damages for the taking of land for arailroad right of way is the actual cash market value ofthe strip taken and the incidental depreciation in the marketvalue of the part not included in the right of way. Id.

OC• 37 -102 [ ORS 772.015 to 772.0551 does not apply toproceedings by the United States to condemn land in thisstate. United States v. Alcorn, ( 1936) 80 F2d 487.

The amount of compensation to be paid by the' UnitedStates for property which it takes is to be determined, notby the law of the state, but by federal law. Id.

Evidence of what plaintiff paid for other property for usein the same enterprise was incompetent. Oregon R. & N.

Co. v. Eastlack, ( 1909) 54 Or 196, 102 P 1011, 20 Ann Cas692.

FURTHER CITATIONS: State Hwy. Comm. v. Bailey, 1957) 212 Or 261, 319 P2d 906.


805

SUPERSEDED

772.065

772.065

NOTES OF DECISIONS

A railroad company which appropriated part of a countyroad for its right of way, under a contract with the countycourt to establish another road, but which failed to carryout its agreement, could not be required by the commissionto construct a highway in lieu of the one appropriated. Inre County Road No. 65, ( 1919) 90 Or 519, 177 P 426.

772. 105

NOTES OF DECISIONS1. Subsection ( 1)

The appropriation of a public levee by a railroad corporation would defeat or extinguish the public use, and is notwithin the grant of power, without an agreement with the

local authorities. Oregon Ry. v. Portland, ( 1881) 9 Or 231. The mere execution of an agreement provided for by this

section does not establish a corporate road; but location

by some appropriate act by the corporation is essential. State v. Douglas County Road Co., ( 1882) 10 Or 185.

The use of a street by a railroad will not be enjoinedat the suit of an abutting owner in the absence of proofthat the construction and use of the railway will speciallyinterfere with the owner' s ingress and egress. Paquet v. Mt.

Tabor St. Ry., ( 1889) 18 Or 233, 22 P 906.

A grantee of land bounded by a road or street does notsecure such a title to the land embraced in the road or street

as will enable him to claim compensation from a railwaywhich locates its road thereon. McQuaid v. Portland & V.

Ry., ( 1889) 18 Or 237, 22 P 899.

Any structure on a street which is subversive of its useas a public thoroughfare is not a legitimate street use, and

imposes a new servitude on the rights of abutting ownersfor which compensation must be made. Willamette Iron

Works v. Ore. Ry. & Nay. Co., ( 1894) 26 Or 224, 37 P 1016,

46 Am St Rep 620, 29 LRA 88. Order of a county court did not give a railway a right

to the exclusive use of a road, or deprive the public of the

right to use any part thereof. Turney v. So. Pac. Co., ( 1904)

44 Or 280, 75 P 144, 76 P 1080.

2. Subsection ( 2)

A railway has no authority to change the grade of thehighway, or use it to the exclusion of the public, or in suchmanner as will infringe upon the rights of adjoining property owners to its use. McQuaid v. Portland & V. Ry., ( 1889)

IS Or 237, 22 P 899.

Owners of property adjoining a highway are compelledto submit to ordinary inconveniences and annoyanceswhich the operation of a railway located upon a public roadoccasions, but cannot be deprived of ingress and egress to

and from their premises. Id.

An abutting owner may recover the amount of the depreciation of value of his property caused by the interferencewith the enjoyment of his property. Id.

This power of a city carries therewith the power to impose reasonable conditions to such grant which when ac-

cepted becomes binding upon the grantee. Southern Pac. Co. v. Portland, ( 1910) 177 Fed 958.

A city is not limited to designating the street upon whichrailroad tracks can be located, or the giving or refusing ofconsent, but may fix terms and reserve general powers, provided they do not defeat the state franchise. SouthernPac. Co. v. Portland, ( 1912) 227 US 559, 33 S Ct 308, 57

L Ed 642.

Power to designate the street on which tracks can belocated is equivalent to the power to consent to the use

of that street. Id.

FURTHER CITATIONS: Douglas County Road Co. v

Abraham, ( 1874) 5 Or 318; Douglas County Road Co. v. Canyonville & Galesville Road Co., ( 1879) 8 Or 102; Can - yonville & Galesville Road Co. v. Stephenson, ( 1880) 8 Or263; Burns v. Multnomah R. Co., ( 1883) 8 Sawy. 543, 15Fed 177; Little Nestucca Toll -Road Co. v. Tillamook County, 1897) 31 Or 1, 48 P 465, 65 Am St Rep 802; Tillamook

County v. Wilson R. Road Co., ( 1907) 49 Or 309, 89 P 958.

772.210

NOTES OF DECISIONS

A condemnor acquires only an easement by exercise ofthe power accorded in this section. Pacific Postal Tel CableCo. v. Ore. & C.R. Co., ( 1908) 163 Fed 967.

The use of the word " lands" in designating the propertythat may be condemned does not mean that an interestless than the fee may not be obtained by virtue of the rightaccorded in this section. Id.

Under a former similar statute, the clause " if the landsare covered by trees" has reference to the lands which areto be condemned. Northwestern Elec. Co. v. Zimmerman,

1913) 67 Or 150, 135 P 330, Ann Cas 1915C, 927.

A complaint for the condemnation of trees menacing theright of way must show the necessity for their removal. Id.

The trees that may be condemned under this section mustbe adjacent to the right of way. Id.

FURTHER CITATIONS: Ashland Elec. Power & Light Co.

v. City of Ashland, ( 1914) 217 Fed 158; Califomia -Ore. PowerCo. v. City of Medford, ( 1915) 226 Fed 957. - _


772.215

ATTY. GEN. OPINIONS: County courts designating thelocation of electric power lines along county roads, 1944 -46, p 210; franchise for coaxial television cable, 1954 -56, p 153.

772.305

CASE CITATIONS: Smith v. Cameron, ( 1928) 123 Or 501, 262 P 942.

ATTY. GEN. OPINIONS: Condemnation of federal lands byState•Land Board, 1948 -50, p 358.


772.310

NOTES OF DECISIONS

An appropriation of property by a private person underthe power of eminent domain, occurring prior to this enactment, cannot be supported by it. Smith v. Cameron, ( 1928) 123 Or 501, 262 P 946.

LAW REVIEW CITATIONS: 3 WIJ 281.

772.410

NOTES OF DECISIONSThe question whether a use is public is to be determined

by the courts, independent of the object expressed in acharter or statute conferring the right to condemn. ApexTrans. Co. v. Garbade, ( 1898) 32 Or 582, 52 P 573, 54 P 367, 882, 62 LRA 513.

ORS 772.410 and 772.415 relate to the power granted to

common carriers of freight and do not apply to one whois not a common carrier and who does not belong to that

806

I*,

SUPERSEDED

class of corporations. Flora Logging Co. v. Boeing, ( 1930) 43 F2d 145.

A skid road built to facilitate logging was not subjectto condemnation. Apex Trans. Co. v. Garbade, ( 1898) 32Or 582, 52 P 573, 54 P 367, 882, 62 LRA 513; Anderson v.

Smith - Powers Logging Co., ( 1914) 71 Or 276, 139 P 736, LRA1916B, 1089.

807

772.520

772.415

CASE CITATIONS: Flora Logging Co. v. Boeing, ( 1930) 43F2d 145.

772.520


SUPERSEDED

808

SUPERSEDED

is

Chapter 776

Pilots and Pilotage

Chapter 776

NOTES OF DECISIONS

The word pilotage is used in an all- inclusive sense to

mean every service performed by a pilot in accordance withhis license and any acts of the pilot necessary to the ulti- mate performance of that service. Powell v. State Bd. of

Pilot Commrs., ( 1960) 244 Or 122, 355 P2d 224.

FURTHER CITATIONS: Barbey Packing Corp. v. The S. S. Stavros, ( 1959) 169 F Supp 897; Brown v. Dept. of Rev., 1969) 3 OTR 481.


776.025

NOTES OF DECISIONS


The state could permit pilots to cruise for vessels beyond

the three mile limit. The Whistler, ( 1882) 8 Sawy 232, 13Fed 295.

The state could enact laws regulating pilotage in theabsence of federal legislation. The Alcalde, ( 1887) 30 Fed133.

Since the Columbia River is a navigable water of the

United States, the jurisdiction of Oregon over navigation

thereon was not exclusive. Id.

Oregon had no authority to regulate the activities orcompensation of pilots appointed by Washington. Id.

Congress could, if it desired, assume exclusive jurisdiction over the pilotage of vessels, although it was not re-

quired to do so. State v. Ring, ( 1927) 122 Or 644, 259 P 780, afPd, 276 US 607, 48 S Ct 338, 72 L Ed 728.

FURTHER CITATIONS: Powell v. State Bd. of Pilot

Commrs., ( 1960) 224 Or 122, 355 P2d 224.

776. 105

CASE CITATIONS: Ring v. Patterson, ( 1931) 137 Or 234, 1 P2d 1105.

ATTY. GEN. OPINIONS: Authority of Governor to appointmore than three pilot commissioners, 1934 -36, p 213.


776.115

NOTES OF DECISIONS

1. In general

Where the board has jurisdiction to fix or review rates

complained of, the only judicial review available is thatprovided by statute. Powell v. State Bd. of Pilot Commrs.,

1960) 224 Or 122, 355 P2d 224.


The charge for piloting a vessel over the Columbia River

bar was the same whether the pilot went aboard at the

outermost buoy or at any distance beyond. The Ullock, 1884) 9 Sawy 634, 19 Fed 207. A rule which provided that an offer of pilot service had

to be made with " the usual code of signal" was ambiguous,

if there was no code of such character. Id.

The courts would not interfere with the acts of the board

unless they were arbitrary and in disregard of the statute. Snow v. Reed, ( 1887) 14 Or 342, 12 P 636.

It was the positive duty of the board to revoke the licenseof a pilot who had failed to discharge the duties imposed

upon him. Id.

The board' s jurisdiction over the licensing of pilots wasexclusive. Ring v. Patterson, ( 1931) 137 Or 234, 1 P2d 1105.

Members of the commission functioned as quasi - judicial

officers in exercising the discretion vested in them by .thestatute. Caples v. McNaught, ( 1934) 147 Or 72, 31 P2d 780.

The number of pilots that should be licensed rested inthe board' s discretion. Id.

The statute did not fix any minimum charge for pilots' services. Id.

FURTHER CITATIONS: The Borrowdale, ( 1889) 39 Fed 376;

State v. Turner, (1898) 34 Or 173, 55 P 92, 56 P 645; Portland

Steamship Operators Assn. v. Bd. of Pilot Commrs., ( 1962)

232 Or 495, 375 P2d 420; Brown v. Dept. of Rev., ( 1969) 3

OTR 481.

ATTY. GEN. OPINIONS: Procedure to be followed in con-

ducting investigation of collision between vessels, 1924 -26, p 292; suspension of license for violation of rules, 1926 -28, p 316; right of board to take disciplinary action against apilot after renewal of his license, 1926 -28, p 324; prescribingphysical qualifications for applicants, 1938 -40, p 14; paymentof compensation and expenses of Board of Pilot Commis-

sioners, 1938 -40, p 603; procedure by board for suspensionof pilot whose federal license has been suspended, 1944 -46,

p 437; establishing regulation, including insurance premiumsin rates, 1956 -58, p 246.


776.125

NOTES OF DECISIONS

Where the board has jurisdiction to fix or review rates

complained of, the only judicial review available is thatprovided by statute. Powell v. State Bd. of Pilot Commrs., 1960) 224 Or 122, 355 P2d 224.


776.135

NOTES OF DECISIONS

Under a former similar statute, on calling a meeting, thepresident was required to give due notice to the other

commissioners. Snow v. Reed, ( 1887) 14 Or 342, 12 P 636.

809

SUPERSEDED

776.305

776.305

NOTES OF DECISIONS


The courts had no authority to issue pilots' licenses. Ringv. Patterson, ( 1931) 137 Or 234, 1 P2d 1105; Caples v. Mc-

Naught, ( 1934) 147 Or 72, 31 P2d 780. An applicant could not compel issuance of a license in

his favor by mandamus. Id. Unless a person was known to have the necessary quali-

fications, he was not to be licensed as a pilot. Snow v. Reed, 1887) 14 Or 342, 12 P 636.

The fact that an applicant had a federal license did not

make it necessary to issue him a state license. Ring v. Patterson, ( 1931) 137 Or 234, 1 P2d 1105.

A licensed pilot was not entitled to enjoin the commission

from issuing licenses to applicants merely because there hadbeen a marked decrease in ship movements. Caples v. Mc- Naught, ( 1934) 147 Or 72, 31 P2d 780.

ATTY. GEN. OPINIONS: Necessity for stenographic reportof examination of applicants, 1936 -38, p 87.

776.325

NOTES OF DECISIONS

1. In general

The word pilotage is used in an all- inclusive sense to

mean every service performed by a pilot in accordance withhis license and any acts of the pilot necessary to the ulti- mate performance of that service. Powell v. State Bd. ofPilot Commrs., ( 1960) 224 Or 122, 355 P2d 224.


Knowledge of tides, currents, shoals, etc., did not alone

make a competent pilot. Edwards v. S. S. Panama, ( 1861) 1 Or 418, Fed Cas No. 10, 702.

A person tainted with suspicion of intemperance was not

to be given a license. Snow v. Reed, ( 1887) 14 Or 342, 12P 636.

A person who desired to pilot foreign ships was required

to have greater qualifications than one serving only coast - wide vessels. Ring v. Patterson, ( 1931) 137 Or 234, 1 P2d1105.

ATTY. GEN. OPINIONS: Determination as to whether or

not an applicant is qualified, 1926 -28, p 482; interpretationof requirements, 1930 -32, p 547; prescribing physical qualifications for applicants, 1938 -40, p 14; authority for rulesstating when pilotage services may be withheld, 1956 -58, p 246.

776.345

NOTES OF DECISIONS

Under former similar statute the right to renewal wasa vested and valuable one, of which the licensee could not

be divested without notice. Patterson v. Pilot Comm' rs, 1897) 30 Or 301, 47 P 786.

Under former similar statute there was no merit in the

contention that the statute applied only when nonrenewalwas based upon a ground that was personal to the particular pilot. Id.

ATTY. GEN. OPINIONS: Refusal of license because of

inactivity for more than one year, 1920 -22, p 307; necessityfor notice before revocation of license, 1920 -22, p 371; authority of board to refuse renewal to applicants beyond astated age, 1936 -38, p 88.

776.355

ATTY. GEN. OPINIONS: Payment of compensation and

expenses of Board of Pilot Commissioners, 1938 -40, p 603.

776.375

NOTES OF DECISIONS


Where the board had jurisdiction to fix or review rates

complained of, the only judicial review available was thatprovided by statute. Powell v. State Bd. of Pilot Commrs., 1960) 224 Or 122, 355 P2d 224.

Findings of fact would not support an order unless based

upon evidence. Portland Steamship Operators Assn. v. Board of Pilot Commrs., ( 1962) 232 Or 495, 375 P2d 420.

The requirement that findings be supported by identifia- ble evidence rested upon the ground that a party adverselyaffected by the administrative order should have an opportunity for cross - examination and to offer evidence in rebut- tal. Id.

Findings supported by evidence were required so thecourt, in reviewing administrative action, could determinewhether the administrative agency acted within the limitsof the authority granted to it. Id.

776.405

NOTES OF DECISIONS


1) In general. A pilot was a person whose business wasto take charge and control of a vessel at a particular place

for the purpose of guiding it through a river or channelor from or into a port. State v. Turner, ( 1898) 34 Or 173, 55 P 92, 56 P 645.

A tugboat master who directed the movements of a vessel

lashed to his craft through instructions issued to its crewwas not subject to prosecution under the statute. Id.

The state had authority to require a pilot having a federallicense to take out an Oregon license also. State v. Ring, 1927) 122 Or 644, 259 P 780, affd, 276 US 607, 48 S Ct 338,

72 L Ed 728.

The same standard of care is required of a pilot regardless

of whether he was hired under a compulsory or noncom - pulsory pilotage Act. Barbey Packing Corp. v. S.S. Stavros, 1959) 169 F Supp 897.

2) Constitutionality. The statute was not nullified by thefact that it was broad enough to cover that part of pilot

regulation which had been assumed by Congress. State v. Ring, ( 1927) 122 Or 644, 259 P 780, affd, 276 US 607, 48S Ct 338, 72 L Ed 728.

So much of the statute as conflicted with U.S.C.A., ch. 10, was dormant and unenforceable, but not unconstitu-

tional. State v. Ring, ( 1927) 122 Or 644, 259 P 780, affd, 276 US 607, 48 S Ct 338, 72 L Ed 728; Wadsworth v. Brigham,

1928) 125 Or 428, 259 P 299, 266 P 875.

FURTHER CITATIONS: Brown v. Dept. of Rev., ( 1969) 3

OTR 481.

776.415

NOTES OF DECISIONS

The same standard of care is required of a pilot regardless

of whether he was hired under a compulsory or noncom- pulsory pilotage Act. Barbey Packing Corp. v. S.S. Stavros,

1959) 169 F Supp 897.

LAW REVIEW CITATIONS: 40 OLR 255. 1 LAW REVIEW CITATIONS: 40 OLR 255, 256.

810

SUPERSEDED

776.425

NOTES OF DECISIONS

Under former similar statute, a pilot was not in command

of the vessel he was navigating, but, on the contrary, wassubject to the control of the master. McGrath v. Nolan,

1936) 83 F2d 746.

FURTHER CITATIONS: The Alcalde, ( 1887) 30 Fed 133.

776.435

ATTY. GEN. OPINIONS: Authority for rules stating whenpilotage services may be withheld, 1956 -58, p 246.

776.465

NOTES OF DECISIONS


The proceedings authorized did not need to be conducted

with the strictness prevailing in a court of justice. Snowv. Reed, ( 1887) 14 Or 342, 12 P 636.

The requirement of notice had to be substantially complied with. Id.

811

776.991

The commissioners could employ an attorney to advisethem at the hearing. Id.

The fact that the members of the board failed to be

present at the time fixed for the hearing did not depriveit of jurisdiction. Id.

776.510

CASE CITATIONS: Brown v. Dept. of Rev., ( 1969) 3 OTR

481.

776.520

NOTES OF DECISIONS

Under former similar statute a pilot's association was not

responsible for the negligence of a member in navigatinga vessel unless he was engaged in association business at

the time. McGrath v. Nolan, ( 1936) 83 172d 746.

FURTHER CITATIONS: Brown v. Dept. of Rev., ( 1969) 3

OTR 481.

776.991


SUPERSEDED

Chapter 777

Ports Generally; Ports Division

Chapter 777

NOTES OF DECISIONS

1. In general

The word " port," as used herein, denotes an area that

may include different municipalities and unincorporatedareas, and not merely a single harbor or haven for shipping. Straw v. Harris, ( 1909) 54 Or 424, 103 P 777.

An area already included within the limits of a dulyorganized port cannot be formed into a separate and dis-

tinct port. Priest v. James, ( 1928) 125 Or 72, 265 P. 1092.

Ports exercise both governmental and proprietary functions. Seafeldt v. Port of Astoria, ( 1933) 141 Or 418, 16 P2d943.

The powers granted ports are broad and comprehensive. Id.

Any reasonable doubt as to the extent of the powersconferred upon ports is to be determined in favor of the

public. Id.

This chapter provides a charter for ports organized under

its provisions. Webber v. Bailey, ( 1935) 151 Or 488, 51' P2d832.

2. ConstitutionalityThere was nothing unconstitutional about the 1909 Act

providing for the incorporation of ports. Straw v. Hams, 1909) 54 Or 424, 103 P 777; Bennett Trust Co. v. Sengstack-

en, ( 1911) 58 Or 333, 113 P 863.

The 1909 Act was a general law, within the meaning ofOre. Const., Art. XI, §2. Straw v. Harris, ( 1909) 54 Or 424,

103 P 777; Katich v. Knapp, ( 1914) 73 Or 558, 142 P 594, 145 P 22, Ann Cas 1916E, 1051.

The fact that incorporation of a port may indirectlyamend the charter of a city forming a part thereof did notrender the 1909 Act unconstitutional. Straw v. Hams, (1909)

54 Or 424, 103 P 777; Kalich v. Knapp, ( 1914) 73 Or 558, 142 P 594, 145 P 22, Ann Cas 1916E, 1051.

The title of the 1909 Act sufficiently expressed its purposes. Straw v. Harris, ( 1909) 54 Or 424, 103 P 777.

FURTHER CITATIONS: State v. Chandler, ( 1946) 180 Or

28, 175 P2d 448; Port of Umatilla v. Richmond, ( 1958) 212

Or 596, 321 P2d 338.

ATTY. GEN. OPINIONS: Necessity for an election beforetaxes are first levied in a new port, 1958 -60, p 56; StateLand Board sale of land located in port, 1962 -64, p 16; refundof tax paid on motor vehicle fuel, 1962 -64, p 82; leasing byState Land Board of tidelands located within port, 1962 -64,

p 104; port's authority to provide water for irrigation, domestic or recreational use, 1966 -68, p 444; issuing revenuebonds for irrigation water system, ( 1969) Vol 34, p 895; portas a municipality under federal grant statute, ( 1971) Vol35, p 460.


777.005

CASE CITATIONS: Waterman v. So. Coos Gen. Hosp. Dist., 1958) 213 Or 654, 326 P2d 1037.

ATTY. GEN. OPINIONS: Duty to obtain certificate ofnumber for port boats, 1960 -62, p 292; port as a municipalityunder federal grant statute, ( 1971) Vol 35, p 480.

777.010

NOTES OF DECISIONS


1) Territorial limits of a port which did not include

county as a wholea) In general. The purpose of the last sentence of the

statute was to prevent landowners from being taxed forthe improvement of ports whose development would be of

no benefit to them. State v. Port of Bay City, ( 1913) 64 Or139, 129 P 496.

The statute did not contemplate absolute accuracy in theexclusion of land that drained into another water -shed

where the general trend of the land was toward the bayof the port. Id.

b) Territory not includable. A port could - include anarea having a drainage basin separate and distinct fromthat of the other constituent areas. Straw v. Hams, ( 1909)

54 Or 424, 103 P 777; Hale v. Sengstacken, ( 1911) 192 Fed641.

The " natural water - shed" included all the arms and inlets

entering a particular bay or like body of water. Hale v. Sengstacken,( 1911) 192 Fed 641.

The courts would not sanction any substantial deviationfrom the rule that restricted the territory that could beincluded in a port to areas within the natural water -shedof the drainage basin. State v. Port of Bayocean, ( 1913) 65

Or 506, 133 P 85.

The fact that a small parcel in another drainage basin

was included in a port did not necessarily vitiate the proceedings. State v. Johnson, ( 1915) 76 Or 85, 144 P 1148, 147P 926.

Formation of a port along the upper reaches of a riverdid not inhibit formation of a subsequent one at its mouth. Id.

FURTHER CITATIONS: State v. Port of Cascade Locks,

1942) 169 Or 197, 127 P2d 351; State v. Chandler, ( 1946) 180 Or 28, 175 P2d 448; Port of Bandon v. Oliver J. Olson

Co., ( 1959) 175 F Supp 736.

777.050

NOTES OF DECISIONS

1. In general

A port created in accordance with the provisions of this

enactment is neither a county, city nor town. Straw v. Harris, ( 1909) 54 Or 424, 103 P 777.

Some of the functions of government are exercisable byports. State v. Port of Astoria, ( 1916) 79 Or 1, 154 P 399.

812

SUPERSEDED

2. Purchase and disposal of propertyA port may sell docks, wharves, etc., that it has purchased

when changed conditions render sale in the best interests

of the taxpayers. Dix v. Port bf Port Orford, ( 1929) 131 Or157, 282 P 109.

The sale or rental of a dredge held by a port in a proprietary capacity is within the powers conferred upon suchentities. Seafeldt v. Port of Astoria, ( 1933) 141 Or 418, 16P2d 943.

A port has no authority to buy a dredge for the purposeof renting it out to private persons, but may rent it to themafter its purchase for authorized purposes. Id.

3. Liability in damagesA port may become liable for damages under the employ-

ers' liability law. Mackay v. Port of Toledo, ( 1915) 77 Or611, 152 P 250.

4. Actions and suits

A port is a municipal corporation and may be sued inits corporate character. Mackay v. Port of Toledo, ( 1915) 77 Or 611, 152 P 250; State v. Port of Astoria, ( 1916) 79

Or 1, 154 P 399.

Designation of a port eo nomine in a complaint against

it did not operate as an admission of its corporate existence

if it was further described as a pretended corporation. State

v. Port of Bayocean, ( 1913) 65 Or 506, 133 P 85.

ATTY. GEN. OPINIONS: Agreements supporting application for federal aid for planning and development, 1960 -62, p 230.

777. 105

NOTES OF DECISIONS

It was evidently the intent of the legislature to give portsfull powers to improve the bays and waters over which theyare given jurisdiction. Hale v. Sengstacken, ( 1911) 192 Fed

641.

The improvements authorized may extend to an entirebay. Id.

A dredge purchased by a port for harbor improvementpurposes, etc., is held by it in a proprietary, and not agovernmental, capacity. Seafeldt v. Port of Astoria, ( 1933) 141 Or 418, 16 P2d 943.

The right of a port to regulate and control the use of

a dredge owned by it is a necessary incident of its ownership. Id.

A dredge purchased for authorized purposes - may berented to a private person, so long as it is not needed forport purposes. Id.

Condemnation of land for the statutory purposes, including leasing, is for a public use and constitutional. Port ofUmatilla v. Richmond, ( 1958) 212 Or 596, 321 P2d 338.


28, 175 P2d 448.

ATTY. GEN. OPINIONS: Port' s power to enter into con-

tracts for improvement of harbors, 1948 -50, p 184; ownershipand regulation of water and land in a port district, 1960 -62,

p 452.


777. 110

NOTES OF DECISIONS

The fact that a port is authorized to contract directlywith the United States does not prevent it from rentinga dredge to a private person for use in execution of a

777. 135

government contract. Seafeldt v. Port of Astoria, ( 1933) 141

Or 418, 16 P2d 943.

777. 116

NOTES OF DECISIONS

Under former similar statute condemnation of land for

the statutory purposes, including leasing, is for a public useand constitutional. Port- of Umatilla v. Richmond, ( 1958)

212 Or 596, 321 P2d 338.

Under former similar statute in determining the amountof land to be taken, commission was entitled to consider

probable future needs as well as those of the present. Id.

777. 120

NOTES OF DECISIONS

A port incorporated under this statute is entitled to exer-

cise powers conferred upon such entities by subsequentlegislation. State v. Port of Astoria, ( 1916) 79 Or 1, 154 P

399. Overruling Farrell v. Port of Portland, ( 1908) 52 Or 582, 98 P 145.


28, 175 P2d 448; State Land Bd. v. Sause, ( 1959) 217 Or 52,

342 P2d 803; Smith Tug & Barge Co. v. Columbia -Pac.

Towing Corp., ( 1968) 250 Or 612, 443 P2d 205.

ATTY. GEN. OPINIONS: Speed limits for boats in port

districts, 1960 -62, p 227; ownership and regulation of waterand land in a port district, 1960 -62, p 452; conforming statewith federal regulations, 1962 -64, p 35; leasing tidelands byState Land Board, 1962 -64, p 104; regulation of structuresin waters within cities and ports, ( 1968) Vol 34, p 370; portas a municipality under federal grant statute, ( 1971) Vol35, p 480.

7'17. 125

CASE CITATIONS: State v. Chandler, ( 1946) 180 Or 28, 175

02d 448; Swanson v. Coos County, ( 1971) 4 Or App 587, 481 P2d 375.

ATTY. GEN. OPINIONS: Certificate of number for port

boats, 1960 -62, p 292.


777. 132

ATTY. GEN. OPINIONS: Issuing revenue bonds for irrigation water system, ( 1969) Vol 34, p 895; constructing nuclearpower plant for lease to private utility, (1970) Vol 34, p 927; taxability of interest on bonds to be issued by Port ofMorrow for irrigation system connected with proposed

private nuclear power plant, ( 1971) Vol 35, p 635.

777. 135

NOTES OF DECISIONS

1. In general

The commissioners are mere agents for the performance

of certain duties, and not officers within the meaning ofthe constitutional provisions that limits tenure of a public

office to four years. Bennett Trust Co. v. Sengstacken,

1911) 58 Or 333, 113 P 863.

2. Meetings of board

The provisions fixing the time and place of the organization meeting are merely directory, and substantial compliance is sufficient. Bennett Trust Co. v. Sengstacken, ( 1911) 58 Or 333, 113 P 863.

813

SUPERSEDED

777. 150

S. Powers of commissloners

The commissioners may exercise any additional powersgranted port districts by way of amendment of the originalAct without first procuring the authorization of voters. State v. Port of Astoria, (1916) 79 Or 1, 154 P 399. OverrulingFarrell v. Port of Portland, ( 1908) 52 Or 582, 98 P 145.

Sale of a wharf belonging to the port is within the powerof the commissioners when such measure will best subserve

the interests of the taxpayers. Dix v. Port of Port Orford,

1929) 131 Or 157, 282 P 109.

4. Testing title to officeThe proper procedure to test the title of a person claiming

to be a commissioner is that outlined in ORS 30.510. Bennett

Trust Co. v. Sengstacken, ( 1911) 58 Or 333, 113 P 863.

ATTY. GEN. OPINIONS: Term of commissioner appointed

to fill vacancy and elected at the next subsequent generalelection, 1942 -44, p 439; term of successor filling vacancycreated by resignation during term, 1962 -64, p 455; determining successful candidates, 1966 -68, p 575; failure to givespecial election ballot to part of voters, 1966 -68, p 644; candidates to be named on general election ballot, ( 1968)

Vol 34, p 18; determination of general election candidatesfrom field of primary election candidates for two vacancies; nominations to vacancy on general election ballot, ( 1970) Vol 35, p 116.

777. 150


777. 155

ATTY. GEN. OPINIONS: Effect of subdistricting, (1968) Vol34, p 263.

777.160


777. 165

ATTY. GEN. OPINIONS: Failure to elect to fill vacancy, 1960 -62, p 235; term of successor filling vacancy created byresignation during term, 1962 -64, p 455.

777. 170

CASE CITATIONS: Port of Brookings v. Mather, (1966) 245

Or 230, 421 P2d 695.

777. 180

NOTES OF DECISIONS

Powers conferred by amendment to a former similarstatute could be exercised by ports organized prior to thedate of enactment of the Act amended. State v. Port of

Astoria, ( 1916) 79 Or 1, 154 P 399. Overruling Farrell v. Portof Portland, ( 1908) 52 Or 582, 98 P 145.

777. 195 to 777.258

NOTES OF DECISIONS

Under former similar statute a port acted in a proprietarycapacity in the maintenance and operation of docks, wharves, etc. Dix v. Port of Port Orford, ( 1929) 131 Or 157,

282 P 109.

Under former similar statute a port could sell docks,

wharves, etc., that it had purchased when changed condi-

tions rendered sale in the best interests of the taxpayers.

Id.


28, 175 P2d 448; Port of Umatilla v. Richmond, ( 1958) 212

Or 596, 321 P2d 338; Carruthers v. Port of Astoria, ( 1968) 249 Or 329, 438 P2d 725.

ATTY. GEN. OPINIONS: Authority of State Land Boardto sell or lease shorelands to a port, 1938 -40, p 457; ownership and regulation of water and land in a port district, 1960 -62, p 452; leasing tidelands by State Land Board, 1962- 64, p 104; port' s authority to provide water for irrigation, domestic or recreational uses, 1966 -68, p 444; issuing revenue bonds for irrigation water system, ( 1969) Vol 34, p 895; constructing nuclear power plant for lease to private utility,

1970) Vol 34, p 927; port as a municipality under federalgrant statute, ( 1971) Vol 35, p 480.


777.326


777.365

ATTY. GEN. OPINIONS: Procedure for change of name,

1960 -62, p 211.

777.395


777.405

ATTY. GEN. OPINIONS: Deposit of port funds in banks

as governed by laws applicable to political subdivisions, 1956 -58, p 144.

777.410

CASE CITATIONS: Webber v. Bailey, ( 1935) 151 Or 488, 51 P2d 832.

777.430


Indebtedness of a port is a general obligation of the

municipality. Morris, Mather & Co. v. Port of Astoria, ( 1932) 141 Or 251, 15 P2d 385.

2. Taxation generallyA port has no authority to tax land lying without its

corporate limits, and, in the event it attempts to do so, it

may be restrained. Leach v. Port of Tillamook, ( 1912) 62Or 345, 124 P 642.

The power to levy and collect the amount of taxes required to discharge a port's obligations is not merely permissive, but mandatory. Morris, Mather & Co. v. Port of

Astoria, ( 1932) 141 Or 251, 15 P2d 385.

The " amount" sufficient to pay the yearly interest onbonds, etc., means an amount which takes into consider-

ation delinquency. Id. A bond holder is not compelled to look only to the special

tax herein authorized for payment of his securities. Id.

3. Levy of taxAn attempt to levy a special tax for more than is required

to pay the yearly interest and such portion of the principal

814

SUPERSEDED

as matures within the year is in excess of the authorityof the commissioners. State v. Johnson, ( 1916) 80 Or 107,

156 P 579.

Any levy which yields less than the sum needed to discharge principal and interest is insufficient. Moms, Mather

Co. v. Port of Astoria, ( 1932) 141 Or 251, 15 P2d 385.

A financial emergency can no more justify failure of aport to levy a sufficient tax to meet its obligations thancould a heavy debt excuse an individual from selling hisproperties in order to pay his creditors. Id.

ATTY. GEN. OPINIONS: Necessity for an election beforetaxes are first levied in a new port, 1958 -60, p 56; tax levyby new district before tax base established, 1958 -60, p 206; proposed constitutional tax limit, ( 1968) Vol 34, p 203.

777.435

NOTES OF DECISIONS

County tax officers cannot be compelled to extend a taxthat was not legally levied. State v. Johnson, ( 1916) 80 Or107, 156 P 579.

FURTHER CITATIONS: Webber v. Baiiey, ( 1935) 151 Or488, 51 P2d 832.

777.560

CASE CITATIONS: Carruthers v. Port of Astoria, ( 1968)

249 Or 329, 438 P2d 725.

777. 725

ATTY. GEN. OPINIONS: Issuing revenue bonds for irrigation water system, ( 1969) Vol 34, p 895; constructing nuclearpower plant for lease to private utility, (1970) Vol 34 p 927.

777.565

CASE CITATIONS: Carruthers v. Port of Astoria, ( 1968) 249 Or 329, 438 P2d 725.


777.575


777.605

CASE CITATIONS: Webber v. Bailey, ( 1935) 151 Or 488, 51 P2d 832.

777.725

CASE CITATIONS: Webber. v. Bailey, ( 1935) 151 Or 488, 51 P2d 832.

815

SUPERSEDED

Chapter 778

Port of Portland

Chapter 778

NOTES OF DECISIONS

The purposes and powers of the Port of Portland are

public, political and governmental. Cook v. Port of Portland,

1891) 20 Or 580, 27 P 263, 13 LRA 533; The John McCrack-

en, ( 1906) 145 Fed 705.

The former statute was constitutional as against the

contention that it violated Ore. Const. Art. I, §32, requiringall taxation to be uniform and equal. Cook v. Port of Port-

land, ( 1891) 20 Or 580, 27 P 263, 13 LRA 533; Farrell v. Port

of Portland, ( 1908) 52 Or 582, 98 P 145; The John McCracken, 1906) 145 Fed 705; The George W. Elder, ( 1908) 159 Fed_

1005.

The Port of Portland is neither a city nor a town in thestrict sense of those words. Farrell v. Port of Portland,

1908) 52 Or 582, 98 P 145; Straw v. Hams, ( 1909) ' 54 Or

424, 103 P 777.

The voters have no power, without a legislative enablingAct, to amend the port' s charter or act of incorporation.

State v. Port of Astoria, ( 1916) 79 Or 1, 154 P 399; Rosev. Port of Portland, ( 1917) 82 Or 541, 162 P 498; Stevenson

v. Port of Portland, ( 1917) 82 Or 576, 162 P 509. State v.

Port of Astoria, supra, overruling Farrell v. Port of Portland, 1908) 52 Or 582, 98 P 145.

The courts take judicial notice of the fact that the Port

of Portland is the commercial metropolis of the state. Cookv. Port of Portland, ( 1891) 20 Or 580, 27 P 263, 13 LRA 533.

The courts take judicial notice of the several statutes

relating to the Port of Portland. State v. Banfield, ( 1903) 43 Or 287, 72 P 1093.

The word " port" is used in a broad sense in the statute. Straw v. Harris, ( 1909) 54 Or 424, 103 P 777.

This statute cannot abrogate or limit the maritime law

applicable to an admiralty case properly before a court ofadmiralty. The Thielbek, ( 1917) 154 CCA 129, 241 Fed 209.

ATTY. GEN. OPINIONS: Port as a municipality under federal grant statute, ( 1971) Vol 35, p 480.

778.008

NOTES OF DECISIONS

Former statute similar to 1971 amendment could autho-

rize the port to sell coal to shipping and render other services in aid of its fundamental objectives. Stevenson v. Port

of Portland, ( 1917) 82 Or 576, 162 P 509.

778.010

NOTES OF DECISIONS

The port may be held liable in damages for negligenceof its servants in operation of its tugs and dredges. United

States v. Port of Portland, ( 1906) 147 Fed 865.

FURTHER CITATIONS: Homer's Market v. Tri- CountyMetropolitan Transp. Dist., ( 1970) 2 Or App 288, 467 P2d671, Sup Ct review denied ( with opinion), 256 Or 124, 471P2d 798.

ATTY. GEN. OPINIONS: Hiring lawyer to prepare andpresent legislation, 1958 -60, p 174; validity of proposedamendment enlarging boundaries of the port, constitutionality of levying taxes in new area without a vote, (1969) Vol 34, p 629.

778.015

NOTES OF DECISIONS

Tugs, dredges, etc., owned by the port and used for authorized purposes are not subject to seizure in admiralty fora maritime tort. The John McCracken, ( 1906) 145 Fed 705.

ATTY. GEN. OPINIONS: Hiring lawyer to prepare andpresent legislation, 1958 -60, p 174.

778.025

NOTES OF DECISIONS

Improvement of navigable rivers is well within the pow-

ers of government. Cook v. Port of Portland, ( 1891) 20 Or

580, 27 P 263, 13 LRA 533.

The state has complete control over wharves, piers and

landing places in the absence of federal legislation on thesubject. Portland v. Montgomery, ( 1900) 38 Or 215, 62 P755.

The port was authorized to construct a dry dock, andit may charge for dry dockage. The George W. Elder, ( 1908) 159 Fed 1005.

Dry dockage is a maritime service for which the port isentitled to a lien enforcible in admiralty. Id.


778.065

NOTES OF DECISIONS

The power of taxation is limited to purposes of a public

nature. Stevenson v. Port of Portland, ( 1917) 82 Or 576, 162P 509.

ATTY. GEN. OPINIONS: Hiring lawyer to prepare andpresent legislation, 1958 -60, p 174; validity of proposedamendment enlarging boundaries of the port, constitutionality of levying taxes in new area without a vote, ( 1969) Vol 34, p 629.

778.085

NOTES OF DECISIONS

A federal statute forbidding the erection of wharves, etc., outside of an established harbor line without the permission

of the Secretary of War does not amount to a declarationthat he can authorize construction of such structures within

the harbor line, contrary to the desires of the port authorities. Montgomery v. Portland, ( 1902) 190 US 89, 23 S Ct735, 47 L Ed 965, affg 38 Or 215, 62 P 755.

Under a former similar statute, it was doubted whether

816

SUPERSEDED

it intended to give the port power to decide whether or

not the City of Portland shall build a bridge over the Wil- lamette River. Kiernan v. Portland, ( 1910) 57 Or 454, 111

P 379, 112 P 402, 37 LRA(NS) 332.

FURTHER CITATIONS: Port of Portland v. Reeder, ( 1955)

203 Or 369, 280 P2d 324.


778.090

NOTES OF DECISIONS

This statute is in derogation of sovereignty and commonright and shall be strictly construed. Port of Portland v. Reeder, ( 1955) 203 Or 369, 280 P2d 324.

This statute does not provide compensation for the re-

moval of floating houseboats or pleasure craft. Id. This statute was constitutional. Id.

This statute operates prospectively. Id.

778.095


778. 110

ATTY. GEN. OPINIONS: Hiring lawyer to prepare andpresent legislation, 1958 -60, p 174.

778.205

NOTES OF DECISIONS

The commissioners are, in effect, nothing more thanagents of the state designated to exercise its powers for

the attainment of an important public purpose. Cook v. Port

of Portland, ( 1891) 20 Or 580, 27 P 263, 13 LRA 533; TheJohn McCracken, ( 1906) 145 Fed 705.

778.210

ATTY. GEN. OPINIONS: Effect of proposed amendment

778.260

making certain persons ineligible for appointment as portcommissioner, 1954 -56, p 67.

778.215

NOTES OF DECISIONS

The provisions of BC 4659 [ ORS 778.205 to 778.225] inrespect of the selection of board members are not violativeof the Oregon Constitution. The George W. Elder, ( 1908)

159 Fed 1005.

ATTY. GEN. OPINIONS: Authority to appoint member tofill vacancy caused by resignation, 1924 -26, p 41.

778.235

ATTY. GEN. OPINIONS: Authority to appoint member tofill vacancy caused by resignation, 1924 -26, p 41.

rkl:lv, s1

ATTY. GEN. OPINIONS: Proposal to prohibit appointment

as director a person with a pecuniary interest in any business operating in the port, 1954 -56, p 67.

778.255

NOTES OF DECISIONS

The voters have no power, under former similar statute,

to amend the port' s charter or Act of incorporation. Statev. Port of Astoria, ( 1916) 79 Or 1, 154 P 399; Rose v. Port

of Portland, ( 1917) 82 Or 541, 162 P 498; Stevenson v. Port

of Portland, ( 1917) 82 Or 576, 162 P 509. State v. Port of

Astoria, supra, overruling Farrell v. Port of Portland, ( 1908) 52 Or 582, 98 P 145.

FURTHER CITATIONS: Horner's Market v. Tri- CountyMetropolitan Transp. Dist., ( 1970) 2 Or App 288, 467 P2d671, Sup Ct review denied ( with opinion), 256 or 124, 471P2d 798.

77 &260

ATTY. GEN. OPINIONS: Remittance to State Treasurer ofdistrict court fines for traffic offenses on properties of Port

of Portland, 1960 -62, p 157.

817

SUPERSEDED

Chapter 780

Improvement and Use of Navigable Streams

Chapter 780

ATTY. GEN. OPINIONS: Legislative power over submerged

lands in navigable rivers and streams, 1950 -52, p 274.

780.010

ATTY. GEN. OPINIONS: Legislative power over submerged

lands in navigable rivers and streams, 1950 -52, p 274.

780.040

NOTES OF DECISIONS

1. In general

2. Transfer of wharf privilege

3. Land not in incorporated town4. Location of wharf

5. Extension of wharf to deep water


1. In general

This section and H 4228 [ ORS 780.0501 are not a grant; they simply authorize upland owners to construct wharvesin front of their land; they do not vest any right untilexercised; they are a license, revocable at the pleasure ofthe legislature, until acted upon or availed of. Bowlby v. Shively, ( 1892) 22 Or 410, 420, 30 P 154, affd, 152 US 1, 14 S Ct 548, 38 L Ed 331.

A riparian owner' s wharf may not be taken for publicuse without just compensation. Lewis v. Portland, ( 1893)

25 Or 133, 135; 35 P 256, 42 Am St Rep 772, 22 LRA 736. The upland owner is given a preference right or license

to occupy land under water for wharfage purposes, theexercise of which becomes a vested right. Grant v. Ore. Nay. Co., ( 1907) 49 Or 324, 90 P 178, 1099.

This section and LOL 5202 [ ORS 780.050] are in aid of

navigation and commerce, and therefore a valid use of the

property that came to the state upon its being grantedstatehood. Pacific Elevator Co. v. Portland, ( 1913) 65 Or

349, 382, 401, 133 P 72, 46 LRA( NS) 363.

An owner of a wharf constructed under authority of thissection and OCLA 121 -202 [ ORS 780.0501 is not required touse it in any particular manner. Miles v. Spokane, Portland

Seattle Ry. Co., ( 1945) 176 Or 118, 155 P2d 938.

2. Transfer of wharf privilege

A reservation of privileges around a riparian lot consti-

tutes a reservation of the wharfing privilege. Parker v. Rogers, ( 1879) 8 Or 183.

The landowner may transfer to another the privilege tobuild a wharf. McCann v. Ore. Ry. & Nay. Co., ( 1886) 13

Or 455, 463, 11 P 236; Welch v. Ore. Ry. & Nay. Co., ( 1899)

34 Or 447, 450, 56 P 417. An owner who transfers his wharf privileges is estopped

from objecting to the maintenance of a wharf on the faithof his conveyance, even though he acquires from the state

the tideland between the upland and the wharf. McCann

v. Ore. Ry. & Nay. Co., ( 1886) 13 Or 455, 463, 11 P 236;

Welch v. Ore. Ry. & Nay. Co., ( 1899) 34 Or 447, 450, 56

P 417.

Where a party conveys land bounded by water, it willnot be presumed that he reserves wharf rights in front ofthe land conveyed. Rasmussen v. Walker Whse. Co., ( 1913)

68 Or 316, 327, 136 P 661.

3. Land not In incorporated town

This section and H 4228 [ORS 780.050] apply to area whichwas unincorporated when such sections were passed, the

boundaries of the city having been extended beyond suchland. Lewis v. Portland, ( 1893) 25 Or 133, 135, 35 P 256,

42 Am St Rep 772, 22 LRA 736; Pacific Elevator Co. v. Portland, ( 1913) 65 Or 349, 382, 133 P 72, 46 LRA(NS) 363.

4. Location of wharf

Riparian owners are entitled to wharf within side lines

drawn at right angles with the thread of the stream and

intersecting the boundary lines of the land at ordinaryhigh -water mark; and the right is not affected at all by theestablishment of wharf lines. Montgomery v. Shaver, ( 1901) 40 Or 244, 66 P 923.

A wharf right may be lost to the upland owner by prescription; so a riparian owner erecting and using a wharfwhich encroaches on the waterfront of an adjacent riparian

owner acquires title by adverse possession. Id. The riparian owner may not construct a wharf except

in front of his upland. Oregon Coal & Nay. Co. v. Anderson,

1913) 124 CCA 286, 206 Fed 404, 408. This section must be read in conjunction with ORS

780.050 and when within a city a wharf must be constructedin conformance with municipal regulations and upon appli-

cation to city officials. Port of Portland v. Reeder, ( 1955) 203 Or 369, 280 P2d 324.

5. Extension of wharf to deep waterThe shore owner may extend wharves from his land into

navigable water so far as is necessary or convenient toaccommodate shipping, provided he does not impede navigation and conforms to restrictions imposed upon him bythe town. Parker v. Taylor, ( 1879) 7 Or 435, 446.

The owner may extend a wharf to the ship' s channel ornavigable water. Montgomery v. Shaver, ( 1901) 40 Or 244, 66 P 923.

FURTHER CITATIONS: Feldman v. Tidewater Mill Co.,

1915) 78 Or 1, 152 P 268; Gatt v. Hurlburt, ( 1930) 132 Or

415, 286 P 151; Smith Tug & Barge Co. v. Columbia -Pac.

Towing Corp., ( 1968) 250 Or 612, 443 P2d 205.

ATTY. GEN. OPINIONS: Pier built across tidelands as a

trespass upon state property, 1928 -30, p 526; regulation ofstructures in waters within cities and ports, ( 1968) Vol 34,

p 370.

780.050

NOTES OF DECISIONS


818

is

SUPERSEDED

C A city may prohibit or control the erection of wharvesbeyond low -water mark in navigable streams. Portland v.

Montgomery, ( 1900) 38 Or 215, 62 P 755. This section does not empower a municipality to autho-

rize a riparian owner to extend his wharf in front of the

lands of an adjoining riparian owner. Montgomery v. Shaver, ( 1901) 40 Or 244, 66 P 923.

H 4227 (ORS 780.0401 and this section are intended to givethe municipal corporation power to limit the extension of

wharves on navigable waters beyond low -water mark, and

does not pretend to give the town any interest in or controlover the shore between high -and low -water mark. Case v.

819

780.050

Toftus, ( 1889) 39 Fed 730, 5 LRA 684; Case v. Loftus, ( 1890)

43 Fed 839, 841.

A vested right did not accrue when a wharf was con-

structed without the consent of city officials. Port of Port- land v. Reeder, ( 1955) 203 Or 369, 280 P2d 324.

FURTHER CITATIONS: Smith Tug & Barge Co. v. Colum-

bia- Pac. Towing Corp., ( 1968) 250 Or 612, 443 P2d 205.

ATTY. GEN. OPINIONS: Authority of State Land Boardto require permits for installation of wharves, piers or

booms, 1946 -48, p 291.

SUPERSEDED

Chapter 783

Liabilities and Offenses Connected with

Shipping and Navigation

783.010


2. Constitutionality generally3. State jurisdiction generally4. Admiralty jurisdiction generally5. Definition of " vessel"

6. Allowance of interest7. Subsection ( 1)

8. Subsection ( 2)

1) Construction

2) State jurisdiction

3) Admiralty jurisdiction4) Lien for labor, materials, or supplies

a) When lien attaches

b) Determining jurisdictional nature of lien claimc) Validity of lien claimd) Lien as affected collaterally

9. Subsection ( 3)

10. Subsection ( 4)

1) Scope

2) Constitutionality3) Jurisdiction of admiralty and state courts

a) Nonmaritime tort

b) Maritime tort

See also cases under ORS 783.020 to 783. 170.

1. In general

A state legislature has power to create maritime liens,

but not to provide for their enforcement. The Willapa, ( 1893) 25 Or 71, 34 P 689.

OL 10281 to 10297 [ ORS 783.010 to 783. 1701 were notintended to apply only to vessels exclusively engaged inintrastate commerce on waters of the state. Spitzer v. An- nette Rolph, ( 1924) 110 Or 461, 218 P 748, 223 P 253.

2. Constitutionality generallyThis section is not affected by the unconstitutionality of

LOL 7507 [ORS 783.0401 purporting to invest the state courtswith exclusive jurisdiction of suits to enforce liens for mari-

time torts. Aurora Shipping Co. v. Boyce, ( 1911) 112 CCA372, 191 Fed 960.

The state can provide a remedy for a tort happeningwithin its jurisdiction and apply a lien against a foreignvessel through whose fault it occurred. Cordrey v. Bee,

1922) 102 Or 636, 201 P 202, 20 ALR 1079.

3. State jurisdiction generallyNo state law can confer admiralty jurisdiction upon a

state court. Cordrey v. S. S. Bee, ( 1922) 102 Or 636, 201 P202, 20 ALR 1079.

4. Admiralty jurisdiction generallyThe lien given by the statute is enforcible in admiralty

only when the matter out of which the lien arises is maritime in its nature. McMaster v. One Dredge, ( 1899) 95 Fed

832.

Application of OL 10281 to 10297 [ ORS 783.010 to 783. 1701to an ocean -going vessel navigating the waters of the stateis not invalid as interfering with admiralty jurisdiction ofthe United States courts. Spitzer v. Annette Rolph, ( 1924)

110 Or 461, 218 P 748, 223 P 253.

5. Definition of " vessel'

A boat or vessel, within the meaning of this Act, is onethat is complete and capable of being used to carry freightor passengers. Northrup v. The Pilot, ( 1877) 6 Or 297.

A dredge is a vessel, if it is capable of being moved fromplace to place on navigable waters, and of transportingmachinery, sand, gravel, etc. McMaster v. One Dredge,

1899) 95 Fed 832.

6. Allowance of interest

Interest is properly allowed on the amount of a boat lienfrom the time action is commenced to enforce it. The Vic-

torian No. 2, ( 1894) 26 Or 194, 41 P 1103, 46 Am St Rep616.

7. Subsection ( 1)

The lien given masters of vessels for their services will

be enforced in admiralty in all proper cases. The WilliamM. Hoag, ( 1895) 69 Fed 742.

The master is entitled to a lien under this section, when

his duties are confined to navigating the vessel. Id. A wage claim may be assigned, and the assignee may

enforce the lien. Id.

The fact that the vessel is being operated by a receiverdoes not preclude the attachment of a wage claim. Id.

8. Subsection ( 2)

1) Construction. The words " any person having thememployed" must be construed to mean any person havingthem so employed by authority of the owner. The City ofSalem, ( 1882) 7 Sawy 477, 10 Fed 843.

2) State jurisdiction. There is nothing invalid about thissection in so far as it gives the state courts jurisdiction

to enforce by a proceeding in rem the lien given by thestate law for materials used in constructing domestic vessels. The Victorian, ( 1893) 24 Or 121, 32 P 1040, 41 Am St

Rep 838. Proceedings in rem to enforce liens for supplies furnished

to a vessel in her home port are not within the jurisdictionof the state courts. The Willapa, ( 1893) 25 Or 71, 34 P 689.

The jurisdiction of a state court to enforce a lien for labor

and material depends on whether they were used in itsconstruction, as distinguished from its repair while in use.

Benbow v. The James Johns, ( 1910) 56 Or 554, 108 P 634.

3) Admiralty jurisdiction. A lien on a vessel for supplies, etc., arising out of a maritime contract must be enforcedin the federal courts. The Willapa, ( 1893) 25 Or 71, 34 P

689.

A lien for furnishing work and material for a domesticvessel in her home port after being launched and floatedin navigable waters is enforcible in admiralty. The ElizaLadd, ( 1875) 3 Sawy 519, Fed Cas No. 4, 364; The RevenueCutter, ( 1877) 4 Sawy 143, Fed Cas No. 11, 714.

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4) Lien for labor, materials, or suppliesa) When lien attaches. The lien attaches as soon as

the labor or material is furnished, and it is not dependent

on any subsequent condition, express or implied. The Vic- torian, ( 1893) 24 Or 121, 32 P 1040, 41 Am St Rep 838; Benbow v. The James Johns, ( 1910) 56 Or 554, 108 P 634.

b) Determining jurisdictional nature of lien claim. Acontract for furnishing materials for the construction of adomestic vessel is not a maritime contract. The Victorian,

1893) 24 Or 121, 32 P 1040, 41 Am St Rep 838. Vessels used exclusively in navigation between points in

this state and foreign ports are not within this statute, and

no lien exists for repairs or supplies furnished such vessel

in her home port. The Haytian Republic, ( 1894) 65 Fed 120.

Mere towing of a partially completed hull from one placeto another for the purpose of completing the work thereis not such a launching which prevents a lien for subsequent work on the vessel. Benbow v. The James John, ( 1912) 61 Or 153, 121 P 899.

c) Validity of lien claim. For materials furnished toa person whose contract was limited to construction of a

hull no lien attaches. Northrup v. The Pilot, ( 1877) 6 Or

297.

A bank is not entitled to a lien on a vessel for a balance

due from the owner for sums paid out on his account in

making repairs. The City of Salem, ( 1887) 12 Sawy 469, 31Fed 616, 2 LRA 380.

d) Lien as affected collaterally. The right to a lien forthe furnishing of construction material is in no wise affectedby the terms of the contract between the owner and contractor, or by the fact that the contractor may have beenfully paid. The Victorian, ( 1893) 24 Or 121, 32 P 1040, 41Am St Rep 838.

The lien given a subcontractor by this section is notextinguished by the taking of a judgment against the contractor, if there has been no satisfaction of the judgment.

Benbow v. The James Johns, ( 1910) 56 Or 554, 108 P 634.

The fact that a boat is to be used for a public ferry undera contract with a municipal corporation does not preclude

enforcement of a lien for labor and materials furnished forits construction. Id.

9. Subsection ( 3)

A lien for furnishing dockage in a dry dock at the requestof the owner to a domestic vessel navigating waters of theUnited States can be enforced in admiralty. The George W. Elder, ( 1908) 159 Fed 1005, affd ( 1913) 125 CCA 332, 206Fed 268. .

10. Subsection ( 4)

1) Scope. This section creates a lien on vessels navigatingstate waters for damages done by them to persons or property. The Oregon, ( 1890) 42 Fed 78; The Oregon, ( 1891) 45Fed 62; The Oregon, ( 1896) 73 Fed 846, rev'd on other

grounds sub nom. Laidlaw v. Ore. R. & N. Co., ( 1897) 26

CCA 665, 81 Fed 876.

The lien is limited to injuries caused by the vessel; aperson injured by a "wrongful act of the master is not entitled to it. The Westmoor, ( 1928) 27 F2d 886.

2) Constitutionality. Grant of the lien accorded hereinfor injuries done persons and property is not unconstitutional as usurping a federal function in the regulation ofinterstate commerce. Cordrey v. Bee, ( 1922) 102 Or 636, 201P 202, 20 ALR 1079.

3) Jurisdiction of admiralty and state courtsa) Nonmaritime tort. Giving the state courts jurisdic-

tion of proceedings to recover compensation for a nonmari-

time tort is not a usurpation of a federal function, even

though the vessel proceeded against is carrying goods toOregon from another state. Cordrey v. S. S. Bee, ( 1922) 102Or 636, 201 P 202, 20 ALR 1079.

A proceeding to enforce a lien for personal injuries suf-

783.030

fered in a mishap that was not of a maritime nature, iswithin the exclusive jurisdiction of the state courts. Id.

An injury to a longshoreman, arising out of the furnishingof a defective sling by a vessel discharging its cargo, maygive rise to a lien against the vessel. Id.

b) Maritime tort. Enforcement of the lien for injuries

and deaths growing out of maritime mishaps of a tortiouscharacter is within the exclusive jurisdiction of the admi-

ralty courts. Cordrey v. S. S. Bee, ( 1922) 102 Or 636, 201 P202, 20 ALR 1079; The Oregon, ( 1890) 42 Fed 78; The Oregon,

1891) 45 Fed 62; The Oregon, ( 1896) 73 Fed 846, rev'd on

other grounds sub nom. Laidlaw v. Ore. R. & N. Co., ( 1897)

26 CCA 665, 81 Fed 876; The Aurora, ( 1908) 163 Fed 633;

The General Foy, ( 1910) 175 Fed 590; Aurora Shipping Co. v. Boyce, ( 1911) 112 CCA 372, 191 Fed 960; The City ofVancouver, ( 1932) 60 F2d 793, affd sub nom. Vancouver

Steamship Co. v. Rice, ( 1933) 288 US 445, 53 S Ct 420, 77L Ed 885.

Vessels are subject to liens for maritime torts occurringwithin the state, including those torts causing death, underthis statute. Aurora Shipping Co. v. Boyce, ( 1911) 112 CCA372, 191 Fed 960.

A proceeding initiated by a longshoreman for the recovery of compensation for an injury suffered while on a dockis not within the jurisdiction of admiralty courts. Cordreyv. S.S. Bee, ( 1922) 102 Or 636, 201 P 202, 20 ALR 1079.

Action in rem may be brought in admiralty by personalrepresentative of deceased person who was wrongfullyinjured while upon a boat but afterwards died ashore from

the injury. The City of Vancouver, ( 1932) 60 F2d 793, affdsub nom. Vancouver Steamship Co. v. Rice, ( 1933) 288 US445, 53 S Ct 420, 77 L Ed 885.

FURTHER CITATIONS: The Ranier, ( 1868) Deady 438, FedCas No. 11, 565; Osaka Shosen Kaisha v. Pac. Export Lbr.

Co., ( 1922) 260 US 490, 43 S Ct 172, 67 L Ed 364; Emerson

v. Holloway Concrete Prod. Co., ( 1960) 282 F2d 271.


783.020

NOTES OF DECISIONS

A general admiralty lien for supplies furnished a vesselnot at her home port is preferred to the lien given material -

men by a local law. The Favorite, ( 1875) Fed Cas No. 4699.

783.030

NOTES OF DECISIONS1. in general

A boat lien is assignable and the assignee can enforceit in his own name. The Victorian No. 2, ( 1894) 26 Or 194,

41 P 1103, 46 Am St Rep 616. A subcontractor may proceed against the vessel, though

he has previously recovered a judgment against the contractor, since the latter is not an owner, master, agent orconsignee. Benbow v. The James Johns, ( 1910) 56 Or 554,

108 P 634.

A claimant may pursue his remedies against the vesseland against the owner, contractor or subcontractor sepa-

rately. Id.

2. Nature of proceedings

The proceeding against the vessel is to be prosecuted asa suit in equity. Cordrey v. S.S. Bee, ( 1922) 102 Or 636, 201P 202, 20 ALR 1079; McCauley v. S.S. Willamette, ( 1923) 109 Or 131, 215 P 892.

3. Application

A stevedore, injured by the negligent operation of hoisting appliances, while aboard ship has a right to proceed

821

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783.040

against the vessel, under this section. The Bee, ( 1914) 216

Fed 709.

4. Joinder of proceedings

The right of action against a vessel and the right of action

against the owner, contractor, or subcontractor, for labor

and materials furnished, are not joint, but several, for thatagainst the vessel is in rem, and that against the owner, contractor or subcontractor is in personam. Benbow v. TheJames Johns, ( 1910) 56 Or 554, 108 P 634.

A suit against the vessel may not be joined with an actionat law against an alleged tort- feasor and tried as a single

action. McCauley v. S.S. Willamette, ( 1923) 109 Or 131, 215P 892.

FURTHER CITATIONS: Steamer Gazelle v. Lake, ( 1855)

1 Or 119.

783.040

NOTES OF DECISIONS

The assignee of a number of claims may include all ofthem in a single complaint. The Victorian No. 2, ( 1894) 26

Or 194, 41 P 1103, 46 Am St Rep 616. One seeking to enforce in a state court a lien for labor

and material must allege and prove that they were usedin the construction of the vessel at the time the lien at-

tached. Benbow v. The James Johns, ( 1910) 56 Or 554, 108

P 634.

This section is unconstitutional in so far as it purports

to limit jurisdiction of suits in rem to enforce liens for

maritime torts to state courts. Aurora Shipping Co. v. Boyce, ( 19 11) 112 CCA 372, 191 Fed 960.

783.050

NOTES OF DECISIONS

Seizure of the boat or vessel constitutes sufficient noticeto the owner to warrant rendition of a judgment against

him. Cordrey v. S.S. Bee, ( 1922) 102 Or 636, 201 P 202, 20ALR 1079.

783.060

NOTES OF DECISIONS

Determination of the liability of the parties is governedby the same rules as prevail in actions in personam. TheBee, ( 1914) 216 Fed 709.

783.070

NOTES OF DECISIONS

OL 10281 to 10297 [ ORS 783.010 to 783. 1701 give the privilege of answering, but say nothing about notice. Cordreyv. S. S. Bee, ( 1922) 102 Or 636, 201 P 202, 20 ALR 1079.

NOTES OF DECISIONS

The trial of a proceeding for enforcing the lien given byLOL 7504 to 7520 [ ORS 783.010 to 783. 170] is by the samerule as if the action were in personam against the owner. The Bee, ( 1914) 216 Fed 709.

783.090

NOTES OF DECISIONS

The sheriff should retain the undertaking, even thoughjudgment goes for the defendant, until the time for appealhas expired. Benbow v. The James John, ( 1912) 61 Or 153,

121 P 899.

The surety need not be given notice of an appeal by the

ship owner if he did not appear in the suit. The Victorian, 1893) 24 Or 121, 32 P 1040, 41 Am St Rep 838; Spitzer v.

Annette Rolph, ( 1924) 110 Or 461, 218 P 748, 223 P 253.

783. 110

NOTES OF DECISIONS1. Judgment

A personal judgment against the owner of the vessel is

unwarranted and erroneous in a proceeding of the kindauthorized by OL 10281 to 10297 [ ORS 783.010 to 783. 170]. Cordrey v. S.S. Bee, ( 1922) 102 Or 636, 201 P 202, 20 ALR1079.

2. Execution

Execution will not issue against the property of a suretyon a judgment against the vessel after the owner has appealed and filed a supersedeas bond. State v. Beveridge,

1923) 109 Or 69, 218 P 1112.

3. Review

The surety need not be given notice of an appeal by theship owner if he did not appear in the suit. The Victorian, 1893) 24 Or 121, 32 P 1040, 41 Am St Rep 838; Spitzer v.

Annette Rolph, ( 1924) 110 Or 461, 218 P 748, 223 P 253.

783. 120

NOTES OF DECISIONS

Execution will not issue against the property of a suretyon a judgment against the vessel after the owner has appealed and filed a supersedeas bond. State v. Beveridge,

1923) 109 Or 69, 218 P 1112.

NOTES OF DECISIONSA distribution made in accordance with the provisions

of this section will not be re- examined. In re Moore, ( 1855) 1 Or 179.

783. 170

NOTES OF DECISIONS

Courts of admiralty will give effect to the requirementsof this section. The City of Salem, ( 1887) 12 Sawy 469, 31Fed 616, 2 LRA 380.

There is a single continuous account where materials are

furnished as they are needed, and payments are made fromtime to time, so that the limitation of one year begins to

run only from the date of the last item. The Victorian, (1893) 24 Or 121, 32 P 1040, 41 Am St Rep 838.

This statute, as applied to proceedings in the federal

courts, is ineffectual and void. The William M. Hoag, ( 1895) 69 Fed 742.

The time in which to commence an action to enforce thelien begins to run from the date when the material or labor

is to be paid for, and not from the date of furnishing thematerial. The Aurelia, ( 1904) 45 Or 285, 288, 77 P 835.

783.310

NOTES OF DECISIONS

A person cannot be held liable under this section for an

injury done by another unless there is a relationship ofagency or employment between them. Oregon Fisheries Co. v. Elmore Packing Co., ( 1914) 69 Or 340, 138 P 862.

A packing company cannot be regarded as responsiblefor injuries occasioned by a fisherman using a boat belonging to the company, if no wage or salary was paid himand its only undertaking was to buy the fish he might catch. Id.

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An injured person is not obliged to proceed against the

offending vessel, but may proceed in personam against theowner or operator, allowing the lien to remain. Horst v. Columbia Contract Co., ( 1918) 89 Or 344, 174 P 161.

A court of law has jurisdiction of an action for damagesbrought under this section. Id.

783.320

NOTES OF DECISIONS

The owner of a trestle constructed upon piles driven intothe bed of a navigable stream is entitled to' invoke the

benefits of this section in order to recover for an injuryto the structure. Astoria R. Co. v. Kern, ( 1904) 44 Or 538,

76 P 14.

All persons participating in a voyage that would not beundertaken by men of ordinary prudence are jointly andseverally liable for the damages arising therefrom. Multno- mah County v. Willamette Towing Co., ( 1907) 49 Or 204,

89 P 389.

A charter under a charter in the nature of a contract of

affreightment is not liable for injuries arising out of thenegligence of the crew. Id.

A change of venue to a neighboring county may be properwhen the property injured is a bridge in which all taxpayershave an interest Id.

783.560

783.510

NOTES OF DECISIONS

Persuasion of sailors to desert, harboring them after desertion and arresting them for small debts are all acts thatare injurious to commerce. In re Oberg, ( 1891) 21 Or 406, 28 P 130, 14 LRA 577.

This Act is a rightful exercise of the state' s police power.

Ex parte Young, ( 1900) 36 Or 247, 59 P 707„ 78 Am St Rep772, 47 LRA 153.

The fact that there may be a federal statute having asimilar objective does not preclude enforcement of this

section. Id.

823

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NOTES OF DECISIONS

The legislative purpose in enacting this measure was toaid foreign commerce by preventing the laying of suchburdens and exactions upon shipping as would discouragemovements to Oregon ports. In re Oberg, ( 1891) 21 Or 406, 28 P 130, 14 LRA 577.

The objection that this section constitutes class legislation is untenable, since anyone can entitle himself to its

benefits by becoming a sailor. Id.

SUPERSEDED

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