# Gilbertson v. Culinary Alliance & Bartenders' Union > Oregon Supreme Court · March 30, 1955 · 204 Or. 326 URL: https://www.frixlaw.com/law-library/cases/9576116 ## Case - **Full name:** GILBERTSON Et Al. v. CULINARY ALLIANCE AND BARTENDERS’ UNION Et Al. - **Court:** Oregon Supreme Court - **Decided:** March 30, 1955 - **Citations:** 204 Or. 326; 282 P.2d 632; 36 L.R.R.M. (BNA) 2001; 1955 Ore. LEXIS 264 - **Precedential status:** Published - **Opinion:** Dissent by Tooze - **Judges:** Tooze - **Cited by:** 18 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/9576116 ## How later opinions describe it (automated extraction) - holding that Article IV, section 22, did not apply to a labor relations act that impliedly repealed parts of an earlier act ## Opinion text TOOZE, J., dissenting. I cannot concur in the result reached in the majority opinion. "We all agree that section 17 of the original act (ORS 662.770) is unconstitutional and void. That section of the law is apparently an integral part of the very gist of the statute. Being so, it would ordinarily be held that its unconstitutionality affected the entire act, rendering the whole unconstitutional. But the reasoning of the majority opinion convinces me that, despite the unconstitutionality of this section of the statute, the remainder of the act could stand were that the only objection to its constitutionality. As to section 16 of the act (ORS 662.750), I originally entertained a serious doubt as to its constitutionality. However, the masterful discussion contained in the majority opinion respecting the validity of this section, although not entirely convincing me of that section’s constitutionality, has nevertheless, removed most of my original doubt, and what little remains I am willing to resolve in favor of validity. However, in my opinion, the real objection to the statute,—an objection that cannot be glossed over—lies in the direct and positive inconsistency and contradiction between the provisions of section 18 (ORS 662.780) and those of sections 12, 13, and 14 (ORS 662.710; 662.720; and 662.730), and, in particular, those of sec *375 tion 13 (ORS 662.720). I am convinced that this inconsistency renders the entire act unenforceable. Sections 13 and 14 provide a complete procedure involving violations of sections 16 and 17. A hearing is first held before the examiner. The examiner makes findings of fact, and enters his order in accordance therewith. Judicial review of such order is provided for, but such review is upon the transcript of proceedings before the examiner. No objection not urged before the examiner may be urged before the court on the review, and, most important, the court is- bound by the findings of fact made by the examiner if there is any substantial evidence in the record to support them. The court is not permitted to hear additional evidence. The case is not tried de novo. The language used in sections 12,13, and 14 is plain and unambiguous. It is positive. The intention of the legislature is clearly manifest from the words it employed. In such circumstances, there is no occasion for resort to rules of statutory construction. And what is said with respect to the language of sections 12, 13, and 14 applies with equal force to that used in section 18. Section 18, in part, provides: 11 (1) Courts of competent jurisdiction shall have power to enforce the provisions of ORS 662.610 to 662.790 [which encompasses every section of the act] by appropriate order or decree. Such proceedings shall be given precedence over all other civil cases.” Thus far, there is no inconsistency with the provisions of sections 13 and 14. The statute then continues: “No relief under ORS 662.610 to 662.790 shall be given by any court except after hearing the testimony of witnesses in open court, with opportunity of cross-examination, in support of the allegations of a complaint or petition made under oath, and testimony in opposition thereto, if offered. * * *.” (Italics supplied). There is no ambiguity in those words. *376 They are positive and mandatory. “No relief” under the act shall be given by ‘ ‘ any court ’ ’ except after hearing the testimony of witnesses in open court, with the opportunity of cross-examination. “Any court” would clearly include the court mentioned in sections 13 and 14. It is perfectly obvious that this provision of section 18 directly conflicts with the provisions of section 13; the two sections are irreconcilable. I recognize the soundness of the rules of construction mentioned in the majority opinion, and frankly concede that it is the duty of the court in all instances to construe a statute as a whole, and if it can reasonably do so, to harmonize provisions which on their face appear to be inconsistent and contradictory. But that does not mean that any court is justified in ignoring plain language used in any part of the statute, and its clear meaning, in its attempt to uphold the statute. It is not the court’s function to make good that which is plainly bad. That is purely a legislative function. In this case, by no rule of statutory construction can we reconcile the irreconcilable. To uphold this statute, we must do one of two things: (1) hold that section 18, being the last section of the act, supersedes sections 13 and 14, a rule of construction that is never applied except in extremis; or (2) read a part of section 18 entirely out of the act, or amend it by adding thereto conditions not expressed therein. The majority opinion seems to hold that section 18 simply provides an additional method for enforcing the provisions of the act, but its positive words hereinabove quoted deny that interpretation. Moreover, to so interpret the emphasized portion of section 18, supra, would require reading into the statute conditions and qualifications not appearing therein, and thereby would, in effect, amend that section. That is a matter exclusively for the legislature. *377 ORS 174.010 provides: “In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all. ’ ’ (Italics supplied.) I do not disagree with the rules for statutory construction stated in the majority opinion, but I do disagree with their application to the instant statute insofar as its provisions are in conflict. This inconsistency, coupled with the invalidity of section 17, and the somewhat doubtful validity of section 16~ renders the entire statute uncertain, indefinite, and unenforceable. The judgment of the trial court should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576116. Public record. Not legal advice.