Oregon Advisory Opinions January 01, 1948: OP 476

Advisory Opinion Text

Public Utilities Commissioner has no jurisdiction to enter an order on any proceeding commenced under section 115-511, O. C. L. A., and pending before him on January 1, 1948. Such section is repealed by chapter 467, Oregon Laws 1947, which is effective on that date.

No. 476 September 12, 1947 Mr. George H. Flagg

Public Utilities Commissioner

Dear Sir: In a letter dated September 10, 1947, you refer to our opinion on the subject of the effect of chapter 467, Oregon Laws 1947, on a pending appli­cation for a carrier permit filed under section 115-511, O. C. L. A. On the same subject you ask the following additional question:

"If an application is filed during 1947 and the hearing is held but no decision rendered until after January 1, 1948, would Chapter 467, Oregon Laws of 1947, be the applicable statute, or would the decision be based upon the present Motor Transportation Act?"

The 1947 act referred to will become the law of this state on January 1, 1948. Section 40 of such act repeals section 115-511, O. C. L. A., the law under which the application for the permit referred to, was filed. A hearing on such application held prior to January 1, 1948, would, of course, also be held under the provisions of section 115-511, O. C. L. A. It is quite obvious that had chapter 467 done nothing more than

repeal the Motor Transportation Act, you would have no authority to issue a permit or make any other order on an application pending when such law ex­pired.

It is quite significant that section 28, and certain other sections of the 1947 act, referred specifically to and saved obligations and procedures existing under the present Motor Transportation Act which will expire on January 1, 1948; no provision of such act, however, refers to or saves rights or jurisdiction existing by virtue of a pending applica­tion for a permit. The application of the rule of construction, expressio unius est exclusio alterius, compels the con­clusion that the legislature did not in­tend to continue your jurisdiction of applications pending under the law after such law expires. It is probable that the reason chapter 467, Oregon Laws 1947, was not allowed to become effec­tive 90 days after the adjournment of the legislative session was to provide a longer time or until January 1, 1948, within which to terminate and close all matters pending under the law being repealed.

In the case of State v. Ju Nun, 53 Or. 1, the Supreme Court of this state, speaking through Mr. Justice Robert S. Bean, stated on page 8 of the report:

"* * * It is settled that the repeal of a law conferring jurisdiction takes away all right to proceed, under the repealing statute, as to all actions, suits, or proceedings pend­ing at the time of the repeal, unless there is a saving clause in the repealing statute, and this is so in an appellate as well as the court of original jurisdiction."

The same rule was announced in the case of Railroad Co. v. Grant, 98 U. S. 398, wherein the Supreme Court of the United States said:

It is equally well settled that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law. * * *' "

The same rule is applicable to matters pending before an administrative body. Such rule quite conclusively answers your present inquiry. The law under which you have jurisdiction of the pend­ing matter will expire with December 31, 1947. There being no saving clause continuing your jurisdiction, you will have no authority to enter an order in such pending matter on or after January 1, 1948.

GEORGE NEUNER. Attorney General, By Rex Kimmell, Deputy Attorney General.

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