dissenting.
Because the majority misapplies the rules of statutory construction, thereby rendering ORS 59.115(l)(b) superfluous, I dissent.
Plaintiffs’ first amended complaint alleged:
“The securities that plaintiffs purchased were sold by means of the following untrue statements of material fact and omissions to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.”
That allegation was followed by a list of allegedly false statements and omissions and by allegations that the nonselling defendants materially aided or participated in the sale of the securities in the way alleged. The securities were sold in a private placement in 1983. Plaintiffs allege that they did not discover, and could not reasonably have discovered, the violations until 1991, almost eight years later, when these actions were filed.
The nonselling defendants moved to dismiss plaintiffs’ claims against them on the ground that the action was not commenced within the time permitted by former ORS 59.115(5).1 Before it was amended in 1985, that subsection provided:
*690“No action may be commenced under this section more than three years after the sale.”
In 1985, that subsection was amended to read:
“No action or suit may be commenced under this section more than three years after sale except an action for violation of ORS 59.135, which may be commenced within three years after the sale or two years after the person bringing the action discovered or should have discovered the facts on which the violation of ORS 59.135 is based, whichever is later. Failure to commence an action on a timely basis is an affirmative defense.” Or Laws 1985, ch 349, § 13.2
The trial court granted the motion and dismissed the complaint as to the nonselling defendants. Plaintiffs did not appeal. Instead, they filed their second amended complaint, alleging that “the securities were sold in violation of ORS 59.135 in that directly or indirectly, in connection with the purchase or sale of the securities or the conduct of a securities business * * *,” followed by the same allegations that they made in their first amended complaint. On the nonselling defendants’ motion, that complaint was dismissed as to them. Pursuant to ORCP 67(B), plaintiffs appeal from the judgment dismissing the action against those defendants.
*691The majority looks only to former ORS 59.115(5) and subsection (l)(a) in concluding that this is an action for violation of ORS 59.135(2). ORS 59.115(l)(a) provides:
“(1) A person who sells a security is liable * * * to a purchaser if the person:
“(a) Sells a security in violation of the Oregon Securities Law or of any condition, limitation or restriction imposed upon a registration or license under the Oregon Securities Law; or * *
It is clear that a seller may be held liable under that subsection if he “sells a security in violation of the Oregon Securities Law,” which, in general, would include ORS 59.135, among other sections.3 When the allegation, as here, is that the sellers made “untrue statements of a material fact and omissions to state material facts necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading,” the action comes squarely within ORS 59.115(l)(b), even though that conduct would also be a violation of ORS 59.135(2).
The majority attaches no significance to ORS 59.115(l)(b) in holding that the extended statute of limitations provided in former ORS 59.115(5) is applicable to this case because the complaint alleges conduct that would constitute a violation of ORS 59.135(2). If the majority is correct, then the First Amended Complaint should not have been dismissed; however, plaintiffs did not appeal from that dismissal. Instead, they filed their second amended complaint, adding the allegation that the conduct violated ORS 59.135, a legal conclusion.
In any event, the majority is wrong, because the statute that permits plaintiffs to maintain this action is ORS 59.115(l)(b), which specifically provides that a person who sells a security is liable to a purchaser if the person:
“(b) Sells a security by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading *692(the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.”
In construing a statute, our task is to discern the intent of the legislature. In doing so, we consider the context of the statutory provision, including other provisions of the same statute and other related statutes, including statutory mandates. PGE v. Bureau of Labor & Industries, 317 Or 606, 859 P2d 1143 (1993). One of the statutory mandates, ORS 174.020, instructs that “* * * when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.” Here, ORS 59.115(l)(a) is a general provision permitting a purchaser of securities to maintain an action against a seller for the violation of the Oregon Securities Laws, which, on its face would include a violation of ORS 59.135, the criminal statute, for which no affirmative defense is available. However, subsection (l)(b) provides a specific remedy independent of ORS 59.135 and permits the seller an affirmative defense, not available under either ORS 59.115(l)(a) or ORS 59.135. Even if ORS 59.135 did not exist, the injured buyer would have a civil remedy under ORS 59.115(l)(b) for fraudulent representations, but not under subsection (l)(a). The specific provision prevails over the general provision. Colby v. Larson, 208 Or 121, 297 P2d 1073, 299 P2d 1076 (1956); ORS 174.020.
The majority recognizes that the remedy against the nonseller participants is predicated on a violation by the seller, not on their violation of any law. It also recognizes that under ORS 59.115(3) the nonsellers become liable because they have “participated or materially aided” in the sale, not because they have violated any law, and that they are afforded an affirmative defense if they can establish that they did not know, and could not reasonably have known, of the facts on which liability is based. In short, ORS 59.115(3) does not establish a standard of conduct the violation of which gives rise to an action for damages; it expands the class of persons who may be held liable for a seller’s violation.
*693Notwithstanding its recognition that a nonseller’s liability depends on the sellers’ violation of the securities laws, the majority fails to focus on the basis for plaintiffs’ claims against the sellers, stating only that it is for the violation of the securities laws. However, as the majority recognizes, in the absence of ORS 59.115 plaintiffs have no basis for a claim against the sellers or the nonsellers, even though the sellers violated ORS 59.135, the criminal statute. Here, plaintiffs’ claims fall squarely within ORS 59.115(l)(b), which is specific and which provides the sellers with an affirmative defense not available under ORS 59.115(l)(a), which is a general provision. The specific statute controls, and the statute of limitations has run on the claims.
Although I believe that the statutory scheme is unambiguous, if there is any ambiguity, we look to the legislative history of the 1985 amendment to former ORS 19.115(5), which extended the statute of limitations for claims arising under ORS 59.115. That amendment was proposed by Gary Berne, a Portland attorney, who testified before the House Consumer and Business Affairs Committee. He stated, in part:
“It is also important to note that the statute of limitations is only being extended for the most severe type of violation, a violation of ORS 59.135.[4] The statute of limitations that applies to violations of the registration requirements of the securities laws or a violation of ORS 59.115(l)(b) and ORS 59.127(l)(b)[5]is not being changed.”
No matter how plaintiffs characterize their claims,6 they fall under ORS 59.115(l)(b), and that was their claim under their first amended complaint. That complaint was dismissed because the three-year statute of limitations had expired before the action was commenced. They assign no error to that dismissal; it was correct. Instead, they filed their *694second amended complaint in an effort to make it appear that their claim falls under ORS 59.115(l)(a). They were right the first time, but their action was filed too late.
Because I would affirm the trial court’s dismissal of the action, I dissent.
At the time relevant to this action, the statute was numbered ORS 59.115(5); it is now numbered ORS 59.115(6).
In 1987, that subsection was amended again to provide:
“Except as otherwise provided in this subsection, no action or suit may be commenced under this section more than three years after the sale. An action under this section for a violation of paragraph (b) of subsection (1) of this section or ORS 59.135 may be commenced within three years after the sale or two years after the person bringing the action discovered or should have discovered the facts on which the action is based, whichever is later. Failure to commence an action on a timely basis is an affirmative defense.” Or Laws 1987, ch 603, §6.
That amendment did not become effective until more than three years after plaintiffs purchased the securities. Therefore, it is not applicable in this case, because the time within which the action could have been filed had expired before the amendment became effective. Nichols v. Wilbur, 256 Or 418, 473 P2d 1022 (1970).
However, that amendment would not have been necessary if the 1985 version of the statute extended the statute of limitations for actions brought under ORS 59.115(l)(b). If the majority is correct, then ORS 59.115(l)(b) was and is a vestigial provision serving no meaningful purpose. All complaints alleging that defendant violated ORS 59.135(2) would come under ORS 59.115(l)(a), leaving the defendant with no affirmative defense. Clearly, that is not what the legislature provided or intended. The 1987 amendment simply confirms that.
See, e.g. ORS 59.055 (selling unregistered securities); ORS 59.085 (failing to deliver copy of prospectus to purchaser; ORS 59.165 (sale by unlicensed broker).
4 The majority quotes only the first sentence of this testimony, although it is the second sentence that is instructive.
5 ORS 59.127 authorizes sellers to maintain an action against purchasers in the same manner and for the same reasons as ORS 59.115 permits purchasers to maintain an action against the seller. ORS 59.127(l)(b) is the counterpart of ORS 59.115(l)(b).
That which we call a rose by any other name would smell as sweet.