ought to be, if it is not, well understood by authority to regulate slaughterhouses or prohibit The right of a city pursuant to legislative them within prescribed limits rests upon the ground that they may become injurious to health or offensive to the public, so as to constitute a public nuisance. Corporations, Cent. Dig. § 1348; Dec. Dig. § [Ed. Note.-For other cases, see Municipal 611.*] ever, as this court has often done, that rules of practice are as binding upon the courts as they are upon litigants, and procedure should always be followed as plainly prescribed by statute. State v. Preston, 95 Pac. 918; Central T. Co. v. Holmes M. Co., 97 Pac. 390. I am of the opinion that the district court acquired no jurisdiction of the attempted appeal of the action, numbered 10 on the docket of the justice's court, entitled H. J. Jones et al., Plaintiffs, v. Pete Corta et al., Habeas corpus by L. Zimmerman against Defendants, and, in proceding to hear and C. C. Gritzmacher. From a judgment denydetermine the same it would exceed its pow-ing the writ, petitioner appeals. Reversed and remanded, with directions to discharge ers. Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge. The peremptory writ of prohibition should petitioner. be issued. STATE ex rel. JONES et al. v. BROWN, This is a habeas corpus proceeding to obtain the discharge of the petitioner from arrest under a warrant issued by the munic Dis-ipal court of the city of Portland on an in trict Judge, et al. (No. 1,724.) (Supreme Court of Nevada. Dec. 31, 1908.) Application by the State of Nevada, on the relation of H. J. Jones, and another, for a writ of prohibition to George S. Brown, District Judge, and another. Application dismissed. E. J. L. Taber, for relators. F. S. Gedney, and Charles B. Henderson, for respondents. NORCROSS, J. The record discloses a similar statement of facts, and the same questions of law are involved, as in the case of State v. Brown, Judge, etc., et al. (No. 1,722, this day decided by the court) 98 Pac. 871. Upon the authority of that case, we hold that the district court acquired jurisdiction of the appeal of the action of H. J. Jones et al., Plaintiffs, v. Pete Corta et al., Defendants, numbered 14 on the docket of the justices' court of Elko township, Elko county, state of Nevada, and in proceeding to hear and determine said appeal it would not exceed its powers. formation charging him with operating and maintaining a slaughter or packing house within the corporate limits of the city, where animals are slaughtered for human food, in violence of a city ordinance. In 1894 the city, in pursuance of legislative authority, passed an ordinance making it unlawful for any person to slaughter animals for human food within the city limits, or to erect or maintain a slaughterhouse therein. While this ordinance was in force and without repealing or amending it, the common council in February, 1896, enacted an ordinance granting petitioner and his assigns the right to establish, conduct, and carry on a slaughter or packing house on certain described property belonging to him within the city limits, under certain conditions and restrictions as to the manner in which the business should be conducted, and declaring that the previous ordinance should not be applied to or affect the establishment or carrying on of the business thus authorized. Immediately upon the passage of this ordinance, and in reliance upon its provisions, the petitioner ZIMMERMAN v. GRITZMACHER.† proceeded to, and did, construct a packing (Supreme Court of Oregon. Jan. 5, 1909.) house and other necessary buildings for the 1. NUISANCE (§ 65*)-PUBLIC NUISANCE-ACTS slaughtering of animals on the property deAUTHORIZED BY ORDINANCE. One cannot be prosecuted by a city for main-scribed therein at a cost in excess of $50,000, taining a public nuisance by operating a pub-' and he and his lessees and assigns have ever The application for a peremptory writ of prohibition should be dismissed. TALBOT, C. J., concurs. dissents. It is so ordered. SWEENEY, J., For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes peals. A. E. Clark and John H. Hall, for appellant. Milton W. Smith and John P. Kavanaugh, for respondent. BEAN, C. J. (after stating the facts as above). There is no allegation or claim that the slaughter or packing house operated and maintained by petitioner is, in fact, a nui since operated the same. After the slaughter | animals within the corporate limits of the or packing house had been constructed by city, in violation of the ordinance enacted the petitioner in accordance with the terms prior to the passage of the abattoir ordiand conditions of the ordinance authorizing nance. He thereupon instituted this proceedhim to do so, the city repealed, or attempted ing for his discharge, and, the judgment of to repeal, such ordinance. The petitioner, the court below being adverse to him, he aphowever, continued to conduct and operate the plant until November, 1901, when he leased it to the Northwestern Meat Company, and it was operated by that company until September, 1904, at which time, with the consent of petitioner, the lease was assigned to the Pacific States Packing Company, who operated it as the Portland Abattoir until the fall of 1906. While it was being so operated by the Pacific States Pack-sance, either on account of its location or ing Company, the city re-enacted the ordinance prohibiting the slaughter of animals within the corporate limits, and in April, 1905, the officers of the company were arrested for violating such ordinance, and were convicted and the judgment affirmed by this court. Portland v. Cook, 48 Or. 550, 87 Pac. 772, 9 L. R. A. (N. S.) 733. After their arrest, however, and before trial, the common council of the city adopted an ordinance regulating the slaughtering of animals and the inspection of meats intended for human food within the city, in which it is provided generally that all animals intended for food shall be inspected and approved by officers appointed by the city board of health both before and after slaughtering, and that it shall be unlawful for any person to slaughter, sell, or offer to sell the meat of any animal except game unless the same has been so inspected or approved, or bears the inspection mark, stamp, or tag of the bureau of animal industry of the United States Department of Agriculture. Section 6 of this ordinance reads as follows: "That the Pacific States Packing Company be known as the 'Portland Abattoir,' where animals may be taken for slaughter and be inspected, and that not more than the following prices may be charged and collected by the person or corporation who are now or who may hereafter be operating the Portland Abattoir, or such other place or places as may be fixed by the board of health, for slaughtering animals intended for human food within the City of Portland, to wit: Cattle, fifty (50) cents; veal calves with skin on, fifteen (15) cents, with skin off, twenty-five (25) cents; hogs, sheep and goats, fifteen (15) cents. For cold storage of same: Cattle, fifty (50) cents; veal calves, hogs, sheep and goats, fifteen (15) cents, respectively. All animals at the above abattoir will be inspected by the Government Meat Inspector stationed there." This ordinance has never been repealed, but is still in force and effect. Some time after its passage the Pacific States Packing Company surrendered possession of the plant, then operated by it, to the petitioner, and he continued to operate the same until August, the manner in which it is being conducted. On the contrary, it is alleged in the petition, and for the purpose of this case admitted to be true, that such packing house is situated in a sparsely settled portion of the city, and that it is in no way injurious to the health or offensive to the public. The contention of the city is apparently that it has plenary power under its charter to exclude slaughterhouses from the corporate limits, whether they are, in fact, a nuisance or not, and that the previous grant or license to petitioner to construct and maintain a slaughterhouse on his premises is no barrier to the exercise of this power. The petitioner, on the other hand, contends that the slaughtering of animals for human food is a lawful business, which the city may regulate and control, but cannot prohibit, when, in fact, it is not a nuisance, and that the grant or license to him cannot be revoked or recalled by the city without showing that the slaughterhouse or packing plant erected in pursuance thereof has, in fact, become a nuisance, either on account of an increase in the popu lation in the vicinity of the plant or the manner in which it is operated. But this case does not call for a decision of any of these questions, interesting as they are. The slaughter or packing house of petitioner was at the time of his arrest being maintained by the consent and authority of the municipality. He cannot be prosecuted by the city for doing that which it expressly sanctions. By section 6 of the abattoir ordinance, the Pacific States Packing Company, which was then in possession of and operating the Zimmerman plant, was designated as the "Portland Abattoir," where animals may be tak en for inspection and slaughter, thus expressly authorizing the slaughtering of ani mals at such place. As long as this ordinance remains unrepealed, the city cannot maintain a criminal prosecution against one who is observing its provisions and doing that which it authorizes. It is argued on behalf of the city that the ordinance is void because it creates a monopoly, delegates legislative and arbitrary power to the city board of health, and im [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 154.*] 4. MUNICIPAL CORPORATIONS (§ 579*)—PUB LIC IMPROVEMENTS - ENFORCEMENT OF As- In a suit to set aside proceedings under tions upon the right to slaughter and sell | mortgagor claimed title, had a valid and enmeats within the city, etc. Some of these forceable lien thereon. objections would merit serious consideration if urged by parties other than the city whose interests are affected thereby. But the city cannot do so in support of a proseIcution for doing that which the ordinance authorizes. The right of a state or municipality by virtue of authority granted to it by the state to regulate slaughterhouses or to prohibit their erection within certain prescribed limits is because they are or may become injurious to health or offensive to the public, and therefore a public nuisance. But, when express legislative authority is given for the erection and maintenance of such business, it cannot become such a nuisance; for, as said by Mr. Justice Hand, in Harris v. Thompson, 9 Barb. (N. Y.) 364, "it is a legal solecism to call that a public nuisance which is maintained by public authority." See, also, Wood on Nuisance, §§ 753, 757. Whether the ordinance granting the petitioner the right to erect and maintain a slaughterhouse was valid, and, if so, whether it can be repealed and the authority withdrawn, after he has expended a large sum of money in its furtherance thereof, as long as the business is not a nuisance, in fact, were questions ably debated at the hearing, but are not necessary to a decision of this case. For the reasons given, the judgment of the court below is reversed, and the cause remanded, with directions to discharge the petitioner. KIEFFER v. VICTOR LAND CO. et al. (Supreme Court of Oregon. Dec. 29, 1908.) 1. PROCESS (§ 98*)-SERVICE-PUBLICATIONORDER-SUFFICIENCY An order for publication of summons, stating that defendant "is without the state of Oregon and is now a resident of this state, and has been absent therefrom for more than six weeks prior to the commencement of the suit," was not materially defective for stating that defendant was then a resident; it being clearly a clerical mistake, and the order further reciting that defendant's address was D. in Yukon territory. [Ed. Note.-For other cases, see Process, Dec. Dig. § 98.*] PROCEEDINGS 2. QUIETING TITLE (8 31*) Under B. & C. Comp. § 516, permitting one claiming an interest in land and not in actual possession thereof to bring a suit in equity against any claimant of an adverse interest to determine such conflicting interest, and section 400, authorizing service of summons by publication upon a nonresident defendant in such suit, such service is sufficient to give the state courts jurisdiction to remove clouds from title to land within the state, or to quiet title thereto. 579.*] Appeal from Circuit Court, Multnomah County; M. C. George, Judge. Action by John J. Kieffer against the Victor Land Company and others. From a judgment in part for plaintiff, he appealed. Af firmed. See, also, 90 Pac. 582. In 1898 plaintiff was the owner of lot 16, block 9, in Multnomah, in this state. About that time he removed to Dawson City, Yukon Territory, and during his absence the property was sold under a warrant, issued for the collection of a delinquent sewer assessment, levied against the property by the city of Portland, and was purchased by one Bingham, for the amount of such assessment. Bingham subsequently assigned the certificate of purchase to the defendant company, and on September 16, 1902, a deed was duly executed, by the chief of police, conveying to it the property in question. On September 25th it commenced a suit in the circuit court for Multnomah county against plaintiff to quiet its title to the property. Service of summons was had upon the plaintiff by publication, and, as he defaulted, a decree was rendered on November 14th adjudging and decreeing that the land company was the owner in fee of the premises in question, and plaintiff, Kieffer, had no right, title, interest, or estate therein, and that he be forever barred and foreclosed from asserting any claim thereto. Thereafter the land company sold and conveyed the property, by warranty deed, to one Murdock, who sold it to defendant Helman, who borrowed $1,000 of defendant Collins, with which to erect a building thereon, securing the same by a mortgage on the property. In the fall of 1904, Kieffer returned to Portland, and in June following commenced this suit to set aside the proceedings, which attempted to divest him of his title, alleging that the assessment proceedings were irregular and void, and the decree of the court, in [Ed. Note. For other cases, see Quieting Ti- favor of the land company, quieting its title tle, Cent. Dig. § 67; Dec. Dig. § 31.*] 3. MORTGAGES (§ 154*) - LIEN TITLE OF MORTGAGOR-NOTICE OF DEFECTS. A mortgagee of land, without notice of any latent infirmity in the decree under which the to the premises, was based upon a fraudulent complaint and a fraudulent affidavit for publication of summons. The defendant land company answered, denying the allegations of For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes There is no evidence that Mrs. Collins had notice or knowledge of any infirmities in the decree at the time she made the loan to her codefendant, Helman, and took a mortgage upon the property to secure payment thereof. Her mortgage is therefore a valid lien upon the property, and she is entitled to have it enforced. the complaint, and setting up affirmatively | cient to give the courts of this state juristhe assessment proceedings and the suit to diction to remove clouds upon title to land quiet title. The defendants Helman and Col- within its boundaries, or to quiet title therelins answered jointly, denying the averments in. 17 Ency. Pl. & Pr. 324; Reno on Nonof the complaint, and pleading the proceed-residents, § 225; Arndt v. Griggs, 134 U. S. ings and decree in the suit brought by the 316, 10 Sup. Ct. 557, 33 L. Ed. 918. land company against Kieffer to quiet title, and averring that Helman purchased and Collins loaned the money and took a mortgage on the property without notice or knowledge of any defect in the title. The court below held the assessment proceedings and decree void, and that plaintiff was the owner of the property, subject, however, to a lien thereon, in favor of the land company and Helman, for the amount of taxes and assessments paid by them, and in favor of defendant Collins for the amount of money loaned by her to defendant Helman, and in case such money, with interest, shall not be paid by plaintiff within 30 days from date of decree, the property shall be sold to satisfy the same. From such decree plaintiff appeals. William M. La Force, for appellant. Frank Schlegel and J. H. Middleton, for respondents. The other items charged against the property by the court below were for taxes and assessments paid by the land company and Helman, and were properly charged thereon. STATE ex rel. McNARY, Dist. Atty., v. (Supreme Court of Oregon. Dec. 29, 1908.) 1. OFFICERS (§ 98*)-FEES-COLLECTION. Where fees cannot be exacted by an officer for the purposes prescribed in the statute authorizing them, they cannot be exacted at all, and, if collected without authority, can be recovered by the person from whom they are exacted unless he is otherwise barred. [Ed. Note. For other cases, see Officers, Cent. Dig. § 150; Dec. Dig. § 98.*] 2. OFFICERS (§ 99*)-FEES-STATUTES. [Ed. Note.-For other cases, see Officers, Dec. Dig. § 99.*] 3. STATES (8 76*) - COLLECTION OF ILLEGAL FEES-RECOVERY BY STATE. Though Const. art. 13, providing that the Secretary of State shall receive an annual salary of $1,500 and shall receive no fees or perduties, repeals other acts authorizing the Secquisites whatever for the performance of any retary of State to collect fees for specified services, there being no statute requiring the secrestate's benefit, the state could not recover for its benefit fees so unlawfully collected. BEAN, C. J. (after stating the facts as above). The decree of the court below should be affirmed. The proceedings in the suit brought by defendant land company against plaintiff to quiet its title to the property in controversy are regular and valid upon its face. It is suggested that the order for publication of summons is void, because it is stated therein that plaintiff was a resident of Oregon at the time; but this is without merit. The affidavit for publication of summons shows all necessary jurisdictional facts. In the order it is recited "that the defendant herein, John J. Kieffer, is without the state of Oregon, and is now a resident of this state, and has been absent therefrom for more than six weeks prior to the commencement of this suit." The omission of the word "not," between the words "is" and "now," is manifest-tary to collect fees under such acts for the ly a mere clerical error, for further on in the order the court finds that "the residence and post office address of said defendant is Dawson City, Yukon Territory," and directs that a copy of the complaint and summons be forthwith deposited in the post office address-Secretary of State may employ clerks to aid in B. & C. Comp. § 2390, provides that the ed to him at that place. The proceedings the performance of his duties, provided that the were therefore sufficient, until impeached by expenditure of moneys for clerk hire shall not evidence aliunde the record, to divest plain- exceed the appropriation in the Legislature tiff of the title to this property. The statute of the state treasury. Const. art. 13, fixes the therefor, and that such clerks shall be paid out (B. & C. Comp. § 516) provides that any per- salary of the Secretary of State at $1,500, and son claiming any interest in real estate not provides that he shall receive no fees or perquiin the actual possession of another may main- sites. Held that, since a "salary" is the personal compensation provided to be paid to an offitain a suit in equity against another who cer for his own personal services only, section claims an interest or estate therein adverse 2390, providing for an allowance to the Secre to him, for the purpose of determining such tary of State for clerk hire, is not in violation of the constitutional provision. conflicting or adverse interest, and section 400 authorizes the service of summons by publication upon a nonresident defendant in such a suit. Such a service is therefore suffi [Ed. Note.-For other cases, see States, Cent. Dig. § 77; Dec. Dig. § 76.*] 4. STATES (§ 60*)—Secretary of State—COMPENSATION-SALARY." [Ed. Note.-For other cases, see States, Dec. Dig. 8 60.* For other definitions, see Words and Phrases, vol. 8, pp. 7792, 7793.] Appeal from Circuit Court, Marion County; | place of Sears, and also the power of a disWm. Galloway, Judge. Action by the State, on relation of J. H. McNary, as District Attorney of the Third Judicial District of Oregon, against F. I. Dunbar. Judgment for plaintiff, and defendant appeals. Reversed and dismissed. This is a suit originally commenced by J. K. Sears, a taxpayer, on behalf of the state, alleging that between January 14, 1899, and January 14, 1907, defendant, as Secretary of State, had received for the use and benefit of the state a large amount of money as fees for filing various papers, issuing commissions and licenses, recording documents, and copy ing public records, which money he had converted to his own use, and asks that an accounting be taken of the sums of money so received and for a decree requiring defendant to pay such sums to the state. A demurrer to the complaint was sustained by the trict attorney of his own motion to institute a proceeding on behalf of the state to recover a debt due to it. The trial court denied the motion and overruled the demurrer, and the defendant presses these contentions here; but we find it unnecessary to consider them, as the case is disposed of in his favor on the merits. The foundation of plaintiff's right of recovery, as disclosed by the complaint, is that these sums of money were collected by the Secretary of State for the use and benefit of the state; the contention of plaintiff being the Secretary of State and fixes that as his that the Constitution prescribes a salary for whole compensation, and that therefore the (and) shall receive no fees or perquisites It is conceded that the fees re court for the reason that Sears has not capacity to maintain the suit, and thereupon by amended complaint the state, at the relation of J. H. McNary, district attorney for the Third judicial district, was substituted as plaintiff therein. The answer of the deceived for filing articles of incorporation, isfendant admits that he was Secretary of State as alleged, and that the relator, J. H. McNary, is district attorney for the Third judicial district, as alleged, but denies all other allegations of the complaint. Upon the trial the lower court found that defendant, as such Secretary of State, received the following sums: For filing articles of incorporation $9,144 50 issuing notarial commissions 66 "recording trade-marks... 66 44 66 46 copying laws and journals.. issuing appointments of commissioners of deeds... issuing other commissions... issuing agents' certificates to fire ins. companies.... 64 issuing licenses to life insurance agents.. 64 issuing annual licenses to life insurance companies. 66 issuing requisitions and warrants of arrest. 17.186 00 148 00 35,660 00 3,759 00 21,488 16 912 00 suing commissions to notaries, appointments of commissioners of deeds, miscellaneous commissions, and requisitions and warrants of arrest, were authorized by, and all collected under, section 2923, B. & C. Comp., which is section 11 of an act of the legislative assembly, entitled "An act to prescribe the fees of certain officers and persons," passed October 24, 1864 (see Deady's Gen. Laws 1845-64, p. 732, c. 18), section 1 of which provides: "The following fees shall be allowed to the officers and persons hereinafter named for the services herein specified." Section 11 (B. & C. Comp. § 2923) provides: "The fees of the Secretary of State shall be as follows: For certifying and affixing the seal of the state to any document or paper, two dollars; for making copies of any record or file, each folio, twenty-five cents; for filing articles of incorporation, two dollars and a half; for recording any paper or document by law required to be recorded by him, for each folio, twenty-five cents." Also, the fees received by him as insurance commissioner were exacted under a legislative act entitled, "An act to license and regulate insurance business in the state of Oregon," adopted February 25, 1887 (Laws 1887, p. 118), which, with amendments and additions thereto, constitute sections 3706-3756, inclusive, B. & C. Comp. Section 1 of the act provides that: "The Secretary of State shall be ex officio insurance commissioner of this state, and shall receive for his services as such commissioner the compensation hereinafter provided therefor." The fees received for filing tradeEAKIN, J. (after stating the facts as marks were exacted under B. & C. Comp. above). At the trial the defendant, by mo- § 4615, which provides: "A fee of two doltion and demurrer, questioned the power of | lars and a half shall be paid to the secretary the court to permit by an amended complaint of state by the owner of said trade-mark as 66 registering titles in insurance 66 issuing powers of attorney.. ..... 380 00 105 00 390 00 $103,926 41 Judgment was rendered for the above total in favor of the state, from which the defendant appeals. G. C. Fulton and Geo. G. Bingham, for appellant. L. H. McMahon and John H. McNary, for respondent. |