# Fullerton v. Lamm > Oregon Supreme Court · June 5, 1945 · 177 Or. 655 URL: https://www.frixlaw.com/law-library/cases/3841407 ## Case - **Full name:** FULLERTON v. LAMM Et Al. - **Court:** Oregon Supreme Court - **Decided:** June 5, 1945 - **Citations:** 177 Or. 655; 165 P.2d 63; 163 P.2d 941 - **Precedential status:** Published - **Opinion:** Addendum by Lusk - **Judges:** Belt, Lusk - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3841407 ## Opinion text Petition for rehearing denied January 15, 1946 On Petition eor Rehearing ( 165 P. (2d) 63 ) LUSK, J. A petition for rehearing has been filed supported by briefs of counsel for the defendants and counsel amici curiae. Both briefs urge that the court misconstrued the enacting clause of Chapter 265, Oregon Laws 1943. But the arguments are no different from those heretofore presented and to whieh we gave careful and deliberate consideration. We think we did not misconstrue the statute, and there is no occasion for us to restate the grounds of our decision. In view, however, of one contention advanced we think it well to add a few words. It is said in substance, as we understand the argument, that the defect found by the court in the six-months provision is not present in the proviso or three-months clause governing claims which had accrued at the time of the enactment of the statute; and, since this case is concerned with such a claim and the action was not commenced until more than three months after the effective date of the act, there is no constitutional or other reason why the proviso should not be applied and the action held to be barred. *695 It was, and still is, onr view, as stated in onr former opinion, that “the legislature would not have enacted the law without the six-months provision”, and, hence, that the proviso, even though in itself free from all constitutional objections, could not be separated from the rest of the statute and given effect. This seemed to us to be so plain that we refrained from laboring the point and contented ourselves with citation to the case of Mendiola v. Graham, 139 Or. 592, 611 , 10 P. (2d) 911 , which is one of the many authorities dealing with the question of severability of the unconstitutional portions of a statute from other portions which are unobjectionable. In this conclusion, it is urged, we “fell into serious error by confusing the separability of a statute and separable application of a statute”. It is said that the statute applies to numerous situations including causes of action accruing under state and federal laws and regulations and causes of action which have accrued under state and federal laws and regulations, and that the court has held that because the statute may not constitutionally apply to one of these situations, “namely causes of action accruing under Federal law, it may not constitutionally be applied to causes of action which have accrued under Federal law.” This is asserted to be a non sequitur, and cases are cited from this and other jurisdictions bearing upon the doctrine of separate application of a statute. The brief quotes from Moreland Theaters v. Portland M. P. Union, 140 Or. 35, 41 , 12 P. (2d) 333 , where it is said that “the same statute, if given one construction and one application to a given state of facts, may be constitutional, while the same statute, if given another construction and differently applied to the same facts, may be unconstitutional.” *696 Again reference is made to Leonard v. Ekwall, 124 Or. 351, 362 , 264 P. 463 , where the court said: “When a constitutional provision prevents a statute from applying in certain cases, even where it was apparently intended to apply, the courts will not declare the statute unconstitutional, but will hold that the law was not intended to apply to such cases, on the ground that the courts are bound to presume that the legislature did not intend to violate the Constitution: Northup v. Hoyt, 31 Or. 524, 529 ( 49 Pac. 754 ).” We recognize the doctrine of separate application of a statute. We had thought that we applied it in this case when we limited our decision to the question of the validity of the statute when invoked in actions brought under the P. L. S. A., leaving for future consideration the question of whether or not it could be validly applied to actions brought under statutes of this state. Except for the fact that all the counsel engaged, including those representing the plaintiff and the United States government, were agreed that Chapter 265 was intended to apply to actions brought pursuant to the provisions of the F. L. S. A., we. suppose that under the rule stated in Leonard v. Ekwall, supra, instead of declaring the statute unconstitutional we might have held that it was not intended to apply in such cases. That would be an instance of the use of the doctrine of separate application, but, in our opinion, that doctrine has nothing to do with the question immediately at hand. That question is whether, notwithstanding the invalidity of the six-months provision of the statute, the remainder may stand as an independent law capable of enforcement in the present case. The general rule is “that a statute may be constitutional in one part and unconstitutional in another part and that if the *697 invalid part is severable from tbe rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected.” 11 Am. Jur., Constitutional Law, 834, § 152. State v. 1920 Studebaker Touring Car, 120 Or. 254, 271 , 251 P. 701 , 50 A. L. R. 81; Standard Lumber Co. v. Pierce, 112 Or. 314 , 228 P. 812 ; State v. Terwilliger, 141 Or. 372, 384, 385 , 11 P. (2d) 552 , 16 P. (2d) 651 . “The inquiry in all such cases is primarily one of legislative intention”, Standard Lumber Co. v. Pierce, supra; 11 Am. Jur., id, 842, § 155. Upon this question the authorities recognize the following rules: “If * * * the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the legislature intended them to take effect in their entirety, it follows that if the whole cannot be carried into effect, it will be presumed that the legislature would not have passed the residue independently, and accordingly, the entire statute is invalid.” 11 Am. Jur., Constitutional Law, 842, § 155. “If the valid and invalid parts are so bound together that the invalid part is a material inducement to the valid portion, the whole is invalid.” Id., 849, § 157. In construing the*statute we said: “The statute means, therefore, that recovery of the statutory benefits enumerated shall be permitted only for work performed within six months immediately preceding the commencement of an action to recover such benefits, ‘irrespective’, as the defendants’ brief says, ‘of whether that period in whole or in part antedates the day after the effective date of the statute’, save that no cause of action which had accrued at or before the effective date of the *698 statute shall be barred if action thereon be brought within ninety days after that date.” The purpose of the three-months provision, as we said, was to prevent cutting off causes of action accrued before the effective date of the statute, and based on work performed more than six months previously, without any opportunity to sue on them at all. The three-months provision is, as it is denominated in the title of the act, a “savings clause”. It is in a real sense a proviso, its function being “to exclude from the scope of the statute that which otherwise would be within its terms”, 50 Am. Jur., Statutes, 457, §436. It is the kind of provision commonly found in statutes of limitation which shorten the period of limitation in an existing statute, and deemed necessary for the protection of rights of persons with accrued causes of action which, otherwise, would be barred at once by the new legislation. It is wholly dependent on the main or enacting clause, and the enacting clause was the inducement for its passage. Without the enacting clause the statute would never have been passed. Were it to be held otherwise we would then have a proviso and nothing to which to apply it, unless it should be said that it might be applied to the statute of limitations then in force. But it is manifest that this was not the legislative intent, since § 2 of Chapter 265 provides: “Any law in conflict herewith to that extent is repealed hereby”; and, moreover, the enactment of a savings clause in respect of a statute of limitations which had been on the books since 1862 would have been wholly unnecessary, if not an absurdity. We adhere to our opinion in all respects, and the petition for rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3841407. Public record. Not legal advice.