dissenting:
I regret that I have not been able to agree with my brethren in the conclusions arrived at in this case. While I fully concur with them in the rule of construction, as stated, that a law ought not to be declared unconstitutional and void by the courts until it .is clearly made to appear that it contravenes some provision of the fundamental law, yet to my mind the act in question does this beyond any reasonable doubt.
Section 2 of the act of October 24, 1868, fixes the salary of the county judge of Grant County at one thousand two hundred dollars, and the other provisions of the same section fix the salaries of all the other county judges in the State at the sums therein stated respectively. (Session Laws, 1868, p. 9.)
Section 1 of the act of October 24, 1870 (Session Laws, 1870, p. 62), undertakes, without even referring to the title of the act of 1868, to amend $ 2 of said act by altering or changing its provisions, so far as the same refer to the salary of the county judge of Grant County, leaving the remaining portion of said § 2, so far as the same provides for the salaries of all the other county judges in the State, as the existing law on that subject.
Section 22 of Article IY of the Constitution of this State declares, “No act shall ever be revised or amended by mere *250reference to its title, but the act revised or section amended shall be set forth and published at full length.”'
What is meant by the amendment of a section of a law ? I maintain that it means to alter or change such section by adding something to or taking something from such section, or in some way modifying some of its parts or provisions, leaving the remainder thereof to stand as valid and operative law. If T am correct in this, the corollary follows that 'the act of October 24, 1870, operates as an amendment of § 2 of the act of October 24, 1868. But it is argued by counsel for respondent. that the act of October 24, 1870, does not profess to amend § 2 of the act of October 24,1868. In other words, that it is not in terms declared to be amendatory of such section, and that it does not refer to the title of the act of 1868, and therefore it does not fall within the inhibition of § 22 of Article IY of our State Constitution, and does not contravene its provisions. To my mind, this argument is briefly but pertinently answered by counsel for appellant when they say, “If mere' reference to its title is insufficient, certainly no reference at all would be much more fatal.”
It appears to me that the mischief intended to be obviated by § 22 of Article IY of our Constitution is materially lessened where the amendatory act refers to the title of the act proposed to be amended, from what it would be where no reference at all is made; because such reference furnishes an index to the act to be amended, although it does not come up to the requirements of the Constitution, by pointing out the specific part of such act which is amended, and by setting the same out word for word as it will read when amended. The object of the framers of our Constitution in prohibiting amendments by mere reference to the title of the act amended, I apprehend was to interdict the usual practice of accomplishing amendments in that manner, which by the customs of legislation had obtained when and where no such constitutional prohibition existed against it. The word mere suggests diminution, and is defined to mean, “ Only this, and nothing else; such and no more; simple, bare.” (Webster.) And if mere reference *251to the title, and nothing more, is insufficient, certainly a more objectionable form of proceeding, where the amendatory act furnishes no index whatever to the act amended, ought to be prohibited, and in my judgment was .intended to be by the section of the Constitution referred to. That which clearly appears to be within the spirit of the rule is within the rule.
Section 22 of Art. IY of the Constitution was doubtless intended to accomplish a twofold object:
1. ' To require legislators, before proceeding to tamper with a law by ingrafting amendments upon it, to know by a direct reference to such law, as it is written, what are its provisions, so that they may intelligibly vote upon its amendment.
2. That when the harmony and proportions of an act are destroyed by the revisal of the same, or where a like result occurs to one or more sections of an act by an amendment of the same, such harmony shall be restored in the amendatory act, by setting out’the act as revised, or the section or sections as amended, so that each will be perfect and complete within itself, in order that the people, who are required to know the law, may be furnished with the means of finding it out. Every law, as amended, should not only show in itself what the law in force on that subject is, but it should be a direct index to the law on that particular subject which has been superseded and which is not in force.
The case of State of Missouri ex rel. Maguire v. Draper, State Auditor (47 Mo. 29), cited in support of respondent’s position on this question, I concede appears to be a case in point; but, with due respect for the wisdom of the court rendering that decision, it does appear to me that the reasoning of the court is subject to criticism, and that it cannot be sustained either upon principle or in the light of the preponderance of the authorities on this question. The court in that case say: “The Constitution has gone so far as to prohibit amendments in terms, except in a particular way, but it has not prohibited amendments by implication.” The provision of the Missouri Constitution in question reads:. “The act revised, re-enacted, or the act or part *252of act amended, shall be set forth and polished at length as if it were an original act or provision.” If the doctrine of the Missouri case referred to is correct, all that a legislator need do to evade the operation of this constitutional provision is, to proceed directly to enact a law which, to all intents and purposes, is in effect amendatory of a preexisting law, without in terms naming the amendatory act as such, and the object is accomplished and the act is amended by implication, the very thing which the framers of the Constitution intended to prohibit.
To my mind this appears to be a sacrifice of substance to matter of form, and a surrender of the spirit of the constitutional provision in question to excessive technicality. I cannot believe that it was ever intended by the framers of a constitutional provision like this, which was intended to prevent a mischief of such great magnitude, that the effects intended to be avoided might be accomplished by indirection in the manner suggested. It is, in mj^ judgment, wholly-immaterial whether the act is eo nomine amendatory or not; the evil against which the constitutional provision in question was directed, is amendments which are such in effect, and is not limited to those which are so named in the title or preamble of the act.
The decision of this Court, in The City of Portland v. Stock (2 Or. 69), as I read and construe it, is decisive of the same question presented in the case at bar. It is true that the act in question, in that case, was in terms amendatory of the charter of the city of Portland, but Mr. Justice Wilson, in announcing the opinion of the court, did not seem to attach any importance to that circumstance, but proceeded directly to the consideration of the nature and effect of the act in question by saying: “The first question for determination is, whether \ 7 of the act of October 15, 1862, operates as a revision or an amendment of any part of the charter of the city, passed January 24, 1854, and if so, of what part?” And, after a review of the law and facts of the case, the court concludes, “that the act of 1862 is a statute which operates as an amendment to the charter,” and is therefore void. And again, in Arnoult v. *253New Orleans (11 La. 56), which is cited by Mr. Justice Wilson in Oily of Portland v. Stock, the law on this subject appears to me to be very clearly expressed in these words: “It was intended that each amendment, and each revisal, should speak for itself; should stand independent and apart from the act revised or the section amended. It was, therefore, provided that, in such cases, if the object was to revise an act, it should be re-enacted throughout; and if the object was to amend an act, then the section amended should be re-enacted and published.”
, I have regarded Portland v. Stock as a well-considered and decisive case on the question determined by it, and do not think that its authority has been directly shaken, or materially qualified by this Court, until the decision of this case. I might pursue this subject much further by a review of the authorities which have been cited on the interesting questions presented in this case; but without deeming it advisable to express an opinion on any of the questions involved, other than the one which I have hurriedly attempted to discuss, I will conclude my unpleasant task of writing a dissenting opinion by only adding that I have always regarded § 22 of Art. IY of our Constitution as a monument of the wisdom of the framers of our fundamental law; and without the strict enforcement of its provisions it would be a violent presumption that any one, much less every one, should know the law, and the maxim ignorantia legis neminem ■excusat would soon become regarded as exceedingly harsh if not tyrannical in its application.