Dissenting. — On April 14, 1914, the State of Oregon as plaintiff filed in the Circuit Court for Harney County its complaint whereby it sought to set aside some sales of state lands in sections 16 and 36, to which the defendant had acquired title by mesne conveyances, the ground for suit being to the effect that the original purchaser acquired title to the lands by means of false and fraudulent applications, the particulars of which are related in the complaint. The prayer was that the conveyances be set aside, that the lands be declared to be the property of the plaintiff and that the defendant Pacific Live Stock Company be required to convey the lands to the state. On May 2, 1914, the defendant demurred to the complaint on various grounds stated, among others, that the complaint does not state facts sufficient to constitute a cause of suit against the defendant. After an oral argument before the court on the issue of law thus involved, this demurrer was overruled on December 31, 1914. The defendant was allowed forty days within which to file its answer and on February 5, 1915, it did file an answer, denying all the allegations of fraud and setting up laches of the plaintiff, death of the defendant’s grantors and predecessors in interest whereby it had become impossible to obtain their testimony in support of the defendant’s title, and further alleged that it had acquired the property in good faith, for a valuable consideration and without any knowledge or information concerning any fraud in its original acquisition from the state. It further *220stated that the defendant had been in possession of the property openly, notoriously, exclusively and uninterruptedly for more than ten years prior to May 22, 1903; that neither the State of Oregon nor its grantors had been seised or possessed of any of said premises within ten years prior to that date, and it also alleged that for more than ten years before May 22, 1903, and ever since that time the defendant has been in the open, notorious, exclusive and uninterrupted possession of the property and the whole thereof, claiming the same adversely to the plaintiff and to all the world, and possessing the same under a claim of right, without any interruption, whereby it had acquired title by prescription as against the State of Oregon.
The prayer appended to the answer reads thus:
“Wherefore said defendant prays that said plaintiff take nothing by its suit and that defendant recover its costs herein expended and have such other relief as may be meet in the premises.”
On April 6, 1915, the plaintiff filed its motion to make certain allegations in the answer more definite and certain, but this motion was overruled and thereafter on June 7,1915, the plaintiff filed its reply. The case stood thus until September 11, 1918, when there was entered an order dated August 24, 1918, reading as follows:
“Now at this time this matter coming on the motion of George M. Brown, Attorney General, and J. 0. Bailey, Assistant Attorney General, representing the State of Oregon, for an order dismissing the suit heretofore and in 1914, instituted by the State of Oregon against the Pacific Live Stock Company, and it appearing to the Court that no affirmative relief is asked by defendant in its answer,
*221“Now, therefore, it is ordered, that said suit he and the same is hereby dismissed without prejudice.”
On September 23, 1918, the defendant moved the court to set aside and vacate its order of August 24, 1918, entered September 11th of that year, and the motion was heard and submitted on September 30, 1918, whereupon the Circuit Court entered the following order:
“In the above-entitled cause the plaintiff having moved the Court to dismiss the said suit without prejudice, and said motion having been granted, now, therefore, it is hereby adjudged that said suit be dismissed without prejudice and that defendant recover its costs of suit herein expended, taxed at $16.50.”
x From this last order the defendant appeals.
The following sections of Lord’s Oregon Laws are here set down as affecting the matters involved:
“Section 410. A decree dismissing a suit may be given against the plaintiff in any of the cases specified in subdivisions 1, 2, and 3 of Section 182, except the last clause of such subdivision 3. Such decree is a determination of the suit, but shall not have the effect to bar another suit for the same cause, or any part thereof.
“Section 182. A judgment of nonsuit may be given against the plaintiff as provided in this chapter,—
“1. On motion of the plaintiff, at any time before, trial, unless a counterclaim has been pleaded as a defense;
“2. On motion of either party, upon the written consent of the other filed with the clerk;
“3. On motion of the defendant, when the action is called for trial, and the plaintiff fails to appear, or when after the trial has begun, and before the final submission of the cause, the plaintiff abandons it, or when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury*
*222“Section 109. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds,—
“1. Of law; and,
“2. Of fact.
“Section 110. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof.
“Section 112. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law shall be first tried, unless the court otherwise direct:
“Section 113. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.”
In addition to the issues of law arising upon demurrer it may be stated that an issue of law arises also upon a motion for judgment on the pleadings, under Section 79, L. O. L., or for a judgment notwithstanding the verdict, under Section 202. It is within the legislative power to make a definition of its own of any term used in its enactments. The statute declares a trial to be a judicial examination of issues, whether they be of law or fact, and we are concluded by this definition. We cannot invent one of our own or be bound by those of the lexicographers. Hence, when the court in the exercise of its judicial function examined and decided the issue of law arising upon the demurrer to the complaint, there was a trial within the meaning of the statute. The motion for voluntary nonsuit at any time after this trial was too late, because Section 182, made applicable to suits in equity by Section 410, says that it must be “at any time before trial,” if the nonsuit is to be granted on the motion of the plaintiff. The language used in this section does not make any distinction between the kinds of *223trial, whether they be upon issues of law or of fact. "Whichever it be, it forecloses the right to take a voluntary nonsuit: Hume v. Woodruff, 26 Or. 373 (38 Pac. 191); Ferguson v. Ingle, 38 Or. 43 (62 Pac. 760).
Section 101, L. O. L., reads thus:
“After the decision upon a demurrer, if it be overruled, and it appears that such demurrer was interposed in good faith, the court may in its discretion allow the party to plead over upon such terms as may be proper. If the demurrer be sustained, the court may in its discretion allow the party to amend the pleading demurred to, upon such terms as may be proper.”
In Alley v. Nott, 111 U. S. 472 (28 L. Ed. 491, 4 Sup. Ct. Rep. 495), the Supreme Court of the United States had under consideration the question of whether a cause could be removed from the courts of the State of New York to the Federal, Court. The federal statute in force at the time required that the petition for removal should be filed “at or before the term at which said cause could be first tried, and before the trial thereof”: Act Cong. March 3, 1875, c. 137, § 3, 18 Stat. 471. The Code of New York is substantially like ours, including the provision that upon the decision of a demurrer the court in its discretion may allow the party in fault to plead anew or amend on such terms as may be just. The defendants had demurred to the complaint and their demurrers were overruled. They then appealed, but afterwards withdrew their appeals and their demurrers, filed answers, and at this stage of the litigation applied for the removal of the suit to the Federal Court. Speaking of this situation the Supreme Court of the United States, through Mr. Chief Justice Waite, used this language:
“A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is *224equivalent to a general demurrer to a declaration at common law, and raises an issue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, and not the settlement of a mere matter of form in proceeding. There can he no other trial except at the discretion of the court, and if a final judgment is entered on the demurrer, it will be a final determination of the rights of the parties which can be pleaded in bar to any other suit for the same cause of action. Under such circumstances, the trial of an issue raised by a demurrer which involves the merits of an action is, in our opinion, a trial of the action within the meaning of the act of March 3, 1875. * * The situation of the case at this time, for the purposes of removal, was precisely the same as it would be if the trial, instead of being on an issue of law involving the merits, had been on an issue of fact to the jury, and the court had, in its discretion, allowed a new trial after a verdict. We can hardly believe it would be claimed that a removal could be had in the last case and, in our opinion, it cannot in the first.”
In Walker v. Maronda, 15 N. D. 63 (106 N. W. 296), the statute affecting Justices’ Courts provided that “the court may at any time before trial, on motion, change the place of trial” (Eev. Codes 1899, § 6652), in certain cases. Like ours, the Code of that state declared that—
“a trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact”: Section 5419.
The Supreme Court there held that the hearing and determination of the issue of law raised by a demurrer to the complaint in a Justice’s Court is a trial, so that it is too late after the decision on the demurrer for a party to apply for a change of venue.
*225An instructive, well-considered case is that of Goldtree v. Spreckels, 135 Cal. 666 (67 Pac. 1091), where it was held that where a complaint contains three alleged causes of action, and defendant demurs thereto, and the demurrer is sustained as to two of the cases and overruled as to the third, and defendant answers the third cause of action, and plaintiff dismisses as to it, and does not amend his complaint, there is a trial, and he cannot afterward dismiss the entire action hut judgment may he rendered for defendants as to the issues raised by demurrer.'
The case of Warm Springs Irr. Dist. v. Pacific Live Stock Co., 89 Or. 19 (173 Pac. 265), was an instance in which plaintiff was proceeding in eminent domain to condemn certain realty belonging to the defendant. The latter had answered and claimed an attorney fee under the condemnation statute. This presented a question of fact and could be determined only at a trial of the fact, but the court permitted the plaintiff to dismiss its suit without prejudice. This, of course, forestalled a trial of the issue of fact and necessarily the court arrived at the conclusion that an attorney fee was not allowable. There was no trial whatever and no stage of the litigation at which an attorney fee could be allowed and hence the nonsuit was taken before trial. The case is not an authority for the doctrine that trial in. any place mentioned in the Code means only the trial of an issue of fact. The language of Mr. Chief Justice Waite in Alley v. Nott, 111 U. S. 472 (28 L. Ed. 491, 4 Sup. Ct. Rep. 495), disposes of the statement, not necessary for the decision of the Warm Springs Irr. District case, that hearing on a demurrer is merely incidental to the action. A general demurrer does, indeed, go to the merits of the case on a question of law. Neither can we be bound by the slovenly *226practice that may have grown np in some parts of the state, that a demurrer can be interposed merely for the purpose of delay. The statute expressly makes the right to plead over or answer depend upon whether or not the demurrer was interposed in good faith. It is a condition upon which alone the court is authorized to grant the desired permission.
Reference to the original records on file in this court in Currie v. Southern Pac. Co., 21 Or. 566 (28 Pac. 884), shows that the statement of Currie v. Southern Pacific Co., found in 23 Or. 400 (31 Pac. 964), is not altogether accurate. In the latter opinion the case is stated as if the issues of law were all presented by motion, whereas in fact there were demurrers to the separate answers of the defendant in a Justice’s Court. But, however that may be, the court held in substance in the second opinion that the effect of the reversal on appeal to this court was to return the cause to the Circuit Court for a trial de novo, putting the litigation into the same condition in the Circuit Court as if no judicial action had been taken. That this construction of the opinion in the Currie case is right is shown by this language of Mr. Chief Justice Lord:
“There had been a mistake, as this court held, but when the judgment was reversed and the cause remanded, it stood on the docket as though no proceedings had been had therein. It was there precisely for trial de nova as it came from the Justice’s Court, and the plaintiff could either take a nonsuit or take the consequences of any further proceedings. ’ ’
The true meaning of this language is that on account of erroneous ruling in the Circuit Court there had been not a trial, but a mistrial, and when this was set aside the case was left as if there had been no trial, so that upon the reasoning of Mr. Chief Justice Lord the case *227is only an authority to the effect that there had been no trial to prevent the taking of a nonsuit. It is true that Hutchings v. Royal Bakery, 60 Or. 48 (118 Pac. 185), ignores the fact that there had been a demurrer heard and determined before the voluntary nonsuit was permitted. This is the only case in the decisions of this court which apparently supports the doctrine that a nonsuit can be taken after the trial involved in the decision of a general demurrer. It should be disregarded as against the weight of authority, including the express language of the Code.
It is argued that for the purposes of nonsuit, the term “trial” must be restricted to the trial of an issue of fact and it is urged that Sections 45 and 46, L. O. L., relating to the change of place of trial, uphold this doctrine. Changes of venue in actions at law usually are made because the action was commenced in the wrong county, or to subserve the convenience of parties and witnesses or to avoid prejudice of the inhabitants or of the trial judge: Section 45, L. O. L. An action must be at issue on a question of fact: Section 46; but the change of venue in a suit must be made before the answer is filed: Section 397. To change the place of trial of an issue of fact does not make the examination and decision of an issue of law any less a trial. The sections mentioned contain nothing infringing upon or differentiating the definition of “trial” as found in Section 182, and Section 46 says that the change of place of trial shall not be allowed in any action, “until after the cause is at issue on the question of fact only.” It certainly cannot be that after the place of trial had been changed in any instance a party would be precluded from moving the court for a judgment on the pleadings or for a judgment notwithstanding the verdict, both of which clearly *228present issues of law which must he tried by the court. The place where it is conducted is not one of the elements of the definition of trial and the issue to be tried, whether of law or fact, may arise, especially in a suit, after the change of venue.
It is clear from the weight of authority, as well as from the express pi'ovision of the Code, that the hearing and decision of the court on a general demurrer constitute a trial. It remains to determine whether the state, as a voluntary litigant, is exempt from any of the rules of procedure which it has prescribed through the legislative department of the government. It is manifest that without its permission the state cannot be sued in any court, for this would be an infringement of its sovereignty. But there is a distinction to be drawn between the assertion of a claim against the state without its consent and the application in behalf of a defendant of the rules of procedure which the state itself has adopted. In the latter instance there is no impairment of the sovereignty of the state. It is only a recognition of the sovereign act of the state embodied in its legislation. Most of the cases cited by Mr. Justice Harris in support of his conclusion that this case must be determined without reference to whether or not there was a trial within the meaning of our Code, are instances where the consent of the state to be sued was withdrawn by subsequent legislation. For example, State ex rel. v. Jumel, 38 La. Ann. 337, depended upon the withdrawal of the right to sue the state by a new constitution and legislation in pursuance thereof. Before the adoption of fbis constitution and laws mentioned, there was a right to sue the state, but the court there held that the legislation in question took it' away. In Beers v. Arkansas, 20 How. 527 (15 L. Ed. 991), the state had *229allowed itself to be sued and an action was commenced on certain state bonds. While the litigation was pending the legislature passed a law requiring such bonds to be deposited in court under-penalty of the dismissal of the action, and this was held to be a valid exercise of the legislative power amounting to a limitation upon the state’s previous consent to be sued. In State v. Bank of Tennessee, 62 Tenn. (3 Baxt.) 395, the withdrawal of the state’s consent to be sued was by legislative enactment. These cases do not hold that in the absence of further legislation is not bound by its own rules of procedure when it institutes an action or suit. They only teach what we will agree upon, that the state cannot be sued without its consent and that the legislative branch of the government may withdraw that consent.
In United States v. Diamond Coal & Coke Co. (C. C. A.), 254 Fed. 266, Judge Sanborn states the principle thus:
‘ ‘ The equitable claims of a nation or a state appeal to the conscience of a chancellor with the same, but with no greater or less force, th^n would those of a private citizen under like circumstances, and, barring the effect of mere delay, they are judicable in a court of chancery, to whose jurisdiction the nation or state voluntarily submits them, by every principle and rule of equity applicable to the rights of a private citizen under similar circumstances. ’ ’
State ex rel. v. Kennedy, 60 Neb. 300 (83 N. W. 87), was a case of quo warranto between the appointees of the Governor of. the state and those of the mayor for fire commissioners of the City of Omaha. The contention was that when the Governor’s appointees were attacked it was in effect an action against the state. Speaking about this, quoting from the syllabus, the court said:
*230“"When a state invokes the judgment of a court for any purpose, it lays aside its sovereignty and consents to be bound by the decision of the court, whether such decision be favorable or adverse. Courts possess a portion of the sovereign power; they are authorized by the constitution to decide between litigants; and the authority to decide implies always, power to make their judgments effective.”
State v. Cloudt (Tex. Civ. App.), 84 S. W. 415, was an instance where the State of Texas sued the defendant for taxes on some land. He pleaded in bar a judgment in an action by the state against his predecessor in interest for taxes on the same land, which was settled by compromise, giving the state a judgment for half of its then claim. Here follows an excerpt from the opinion:
“When a state appears as a party to a suit, she voluntarily casts off the robes of her sovereignty, and stands before the bar of a court of her own creation in the same attitude as an individual litigant; and her rights are determined and fixed by the same principles of law and equity, and a judgment for or against her must be given the same effect as would have been given it had it been rendered in a case between private individuals.”
In King v. Harris, 134 Ark. 337 (203 S. W. 847), the plaintiff, claiming as heir of S. S. Smith, deceased, brought ejectment against the occupant of the land in question, which was formerly owned by Smith. The state intervened and answered, setting up some escheat proceedings whereby it claimed the land. One of the defendants was a former administrator of Smith’s estate. Another was tenant of the State of Arkansas under agreement with the prosecuting attorney. The trial court dismissed the action on the ground that *231it was substantially one against the state. The opinion uses this language:
“The state has in effect become a party plaintiff [defendant] to this litigation, and the court should not thereafter have dismissed the complaint for the reason assigned; i. e., that it was a suit against the state. The state’s sovereignty is in no manner involved in this litigation. At its own election and through its prosecuting attorney it became a party to private litigation, which involved the title to a tract of land which had been owned by appellant’s ancestor at the time of the ancestor’s death.”
"While in the case before it the court declined to review the escheat proceedings under which the state claimed, it held that as the claimant had challenged their regularity in opposition to the state’s intervention he was entitled to a trial of the issue thus joined. As narrated in Port Royal & A. Ry. Co. v. South Carolina (C. C.), 60 Fed. 552, the State of South Carolina began a suit in its state court against the company. The cause was removed to the federal court, where the company filed its cross-bill. Service of process was made upon the attorney general of the state. On „ a motion to set aside the service and dismiss the cross-bill because it amounted to a suit against the state, the court said:
“A sovereign state cannot be forced into court against her consent; but a cross-bill presupposes that the plaintiff is already in court rightfully, and when the state comes into court of her own accord, and invokes its aid, ‘ she is, of course, bound by all the rules established for the administration of justice between individuals.’ * # As by her own volition she is already in court, and as the cross-bill is but a part of the defense to her suit, ancillary to and dependent upon it, we hold that she has by her own act subjected herself to all the rules established for the administration *232of justice between individuals, and must make her defense to this cross-bill.”
This case is cited with approval in United States v. Devereux, 90 Fed. 182 (32 C. C. A. 564). United States v. Beebee (C. C.), 17 Fed. 36, was a suit to set aside some land patents on the ground that they were obtained by fraud. The syllabus reads thus:
“Lapse of time may be a sufficient defense to ,a suit instituted in the name of the United States. When the government becomes a party to a suit in its courts, it is bound by the same principles that govern individuals. When the United States voluntarily appears in a court of justice, it at the same time voluntarily submits to the law, and places itself upon an equality with other litigants. ’ ’
Brundage v. Knox, 279 Ill. 450 (117 N. E. 123), was an instance where the plaintiff suing for the State of Illinois as its attorney general, charged the defendants with appropriating parts of the bed of Lake Michigan by erecting thereon certain structures. Knox filed a cross-bill claiming the' land as an accretion to his upland and prayed that his title be quieted. The following is an extract from the syllabus:
“The constitutional provisions exempting the state from suit are substantially based on the doctrine of the common láw and rest upon public policy, but where the state is the complainant a defendant will not be prevented from filing a cross-bill. ’ ’
In the course of its opinion the court quotes with approval from 26 Am. & Eng. Ency. Law (2 ed.), 492:
“A state, when it brings a suit against citizens or' other parties, accepts all the conditions that affect ordinary suitors, except that no affirmative judgment, as for the payment of costs, can be had against it.”
In State v. Moore, 77 W. Va. 325 (87 S. E. 367), the State of West Virginia had sued for some land *233claimed by the defendants. There were no costs or disbursements decreed against the defendants on appeal, but after the return of the cause to the- Circuit Court that court rendered an additional judgment against them for costs and disbursements and they brought a bill of review to correct the judgment. Answering the contention that this was a suit against the state, the court said:
“It would be a strange doctrine, and one fraught with wonderful consequences, if in construing Section 35, of Article VI, of our Constitution, we were obliged to hold that where the state herself sues, and invokes the aid of her courts in maintaining her rights, a humble citizen thus haled into court can never have the errors in decrees in her favor corrected by bill of review or by appellate process.”
In Commonwealth v. Helm, 163 Ky. 69 (173 S. W. 389), the court held:
“It may also be confidently affirmed that, when the commonwealth comes into court to prosecute a suit it occupies, in the absence of some controlling statute on the subject, the attitude of any other litigant, and is subject to the same rules of practice and procedure.”
Commonwealth v. Barker, 126 Ky. 200 (103 S. W. 303), is authority for allowing a defendant to set up a counterclaim against the'state’s money demand, although he could not have sued the state upon it by an original suit.
The judiciary is a department of the government having dignity and sanction equal to that of any other branch of the government. It is bound by the rules of procedure established by legislation for the control of litigation before it. "When the state, operating through its administrative or executive department, voluntarily appears in court seeking the aid of the judiciary for the enforcement of its proprietary rights, *234it must be bound by the procedure prescribed for any other litigant. It cannot select part of that procedure and ignore the rest. Equal and exact justice requires that a court should treat all litigants alike under .the same circumstances. It is not accurate to say that in such cases the state is bound merely “in the main” by the rules of procedure. Such a statement is not characterized by that precision which should be used in judicial utterances. Moreover, the declaration that “a judgment or decree cannot be rendered against the state unless there is an express statute permitting it,” is too general in its scope. Having come into court and challenged the defendant to a trial of an issue, the state, like any other litigant, must submit to the decision of its judicial department and the defendant in common.with the state is entitled to a determination of the issue which will be binding on both parties. To say without restriction or qualification that no judgment or decree can be rendered against the state unless there is an express statute permitting it, would be to assume that no matter what litigation the executive department might institute, there never could be a determination thereof which could be pleaded in bar against a subsequent suit for the same purpose. It would be to deny to the defendant the equal protection of the laws and subject it to the caprice of every succeeding state administration.
People v. Miles, 56 Cal. 401, was an action by the state on a building bond given by contractors who built the prison at Folsom. The court there indeed held that the defendant could not obtain an affirmative judgment against the state, but on rehearing held that a judgment should be directed for the defendant against the state to the effect that the “plaintiff has no cause of action against the defendants or either of *235them,” but without costs. In United States v. Warren, 12 Okl. 350 (71 Pac. 685), it was held that when the United States sues, it waives exemption so far as to let in a setoff to the extent of its demand, but no further, and judgment was directed to the effect that the United States take nothing by its action. In the case of The Siren, 7 Wall. 152 (19 L. Ed. 129), Mr. Justice Field used this language:
“But although direct suits cannot be maintained against the United States, or against their property, yet, when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of setoffs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem, they open to consideration all claims and equities in regard to the property libeled. They then stand in such proceedings, with reference to the rights of the defendants or claimants, precisely as private suitors, except that they are exempt from costs and from affirmative relief against them, beyond the demand or property in controversy.”
It is clear that there was a trial on the general demurrer to the complaint; that the state, as it came voluntarily into court as a suitor, is bound by the rules of procedure which itself has prescribed, the same as any other litigant; that this is not an infringement of its sovereignty, but in obedience to its sovereign mandate as expressed in its laws; that when it institutes litigation against the defendant it is bound by its own rules, and it follows that the court may render a decision on the issues formed which will bind not only the defendant but also the state as a plaintiff, and finally, that since there has been a trial, the plaintiff, like any other litigant, was too late in its application for a voluntary nonsuit. To hold otherwise would be to give to the administrative department the authority to *236withdraw the consent of the state at pleasure either partially or wholly without reference to the statute which governs all alike and without reference to its being a legislative question. It is not within the election of the administrative department to claim the benefits of part of the procedure established by the Code and reject the remainder, for the law of the land binds all departments of the state and all litigants alike. If the state as a suitor may ignore part of its own procedure it may ignore it all and seize any realty to which it had title at any time either by administrative action or by the declaration of martial law, suspending civil process.
For these reasons, I dissent from the conclusion reached by Mr. Justice Bennett respecting the question of trial and its prevention of a voluntary nonsuit and from the statement of Mr. Justice Harris that the state is bound only in the main by the rules of procedure and that an express statute is required to support a judgment or decree against the state.
The state, like any other litigant, ought to be compelled to try its cause on the merits without unreasonable delay and not be allowed to split its cause of suit, urging part and holding back, the rest as a menace to the defendant.
Mr. Justice Benson concurs in this dissent'.