See also Pavlicek v. S.I.A.C., 235 Or. 490, 385 P.2d 159 (1963).Dodd v. S.I.A.C., 211 Or. 99, 102, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957); Fed. Cartridge Corp. v. Helstrom, 202 Or. 557, 564-65, 276 P.2d 720 (1954). See also Haugen v. Gleason et al, 226 Or. 99, 107, 359 P.2d 108 (1961).
This court has often stated the rule that a case will not be decided by holding a statute adopted by the legislature to be unconstitutional unless such a determination is necessary to a proper disposition of the case. See State v. Franzone, 243 Or. 597, 415 P.2d 16 (1966); Dodd v. State Ind. Acc. Com., 211 Or. 99, 162, 310 P.2d 324 (1957); State ex rel Bushman v. Vandenberg, 203 Or. 326, 329, 276 P.2d 432 (1955), among other cases. The legislature of Oregon, by the adoption of ORS 137.090, has expressly conferred upon the trial judge the discretion whether or not to make available to counsel for the defendant all or any part of a pre-sentence report.
The manner of appealing is "by filing with the clerk of the court a complaint, as provided in civil actions at law, and by serving a copy thereof by registered mail on the commission": ORS 656.288 (2). Ignoring the command of the statute, the plaintiff, without having filed an application for rehearing, filed his complaint in the circuit court. Clearly the court was without jurisdiction: Turner v. SIAC, 240 Or. 247, 401 P.2d 8; Simmons v. SIAC, 168 Or. 256, 122 P.2d 793; White v. SIAC, 163 Or. 476, 96 P.2d 772, 98 P.2d 955. And see Dodd v. SIAC, 211 Or. 99, 107, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138; Rohde v. SIAC, 108 Or. 426, 441, 217 P. 627. The court should have dismissed the appeal. Had it done so, and on the assumption that the telegram sufficed as an application for rehearing, the plaintiff could have filed an appeal after the Commission had acted on his application for rehearing or after its denial by the passage of time.
ORS 174.040 was enacted in 1951 and embodies substantially the rules which had been applied by this court prior to its enactment. Dodd v. Ind. Acc. Comm., 211 Or. 99, 113, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957); Gilbertson v. Culinary Alliance, 204 Or. 326, 353, 282 P.2d 632 (1955). The practical effect of the trial court's decree was to sever that part of the statute which it found invalid, and to permit the defendants to enforce the statute by ignoring the severed portion.
"* * * No authority need be cited for the proposition that where rights and the procedure for securing them are prescribed by statute, as in the Workmen's Compensation Law, a litigant's failure to bring himself within the statute is fatal to his claim, and in such a case the courts are powerless to aid him." Dodd v. Ind. Acc. Com., 211 Or. 99, 107, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138. The judgment of the trial court is affirmed.
The trial court could have disposed of the case without reaching the constitutional questions, and this court prefers to follow that course. Dodd v. Ind. Acc. Com., 211 Or. 99, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957). This suit for declaratory relief proceeds upon three assumptions.
Moreover, ORS 174.040 does no more than to codify what has long been the common law rule of construction in this state. Dodd v. State Industrial Accident Commission, 211 Or. 99, 112, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957). It is apparent that ORS 167.150 goes far toward exhausting the limits of constitutional power in dealing with obscene and other undesirable material, if in fact it does not go beyond such limits.
ORS 174.040. Seale, et al. v. McKennon, 215 Or. 562, 336 P.2d 340 (1959); Dodd v. State Industrial Accident Commission, 211 Or. 99, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957); Fullerton v. Lamm, 177 Or. 655, 163 P.2d 941, 165 P.2d 63 (1946); State v. Terwilliger, 141 Or. 372, 11 P.2d 552, 16 P.2d 651 (1933); State ex rel. Pierce v. Slusher, 119 Or. 141, 248 P. 358 (1926). The principle of separability applies where the part of the statute which must be stricken is a penalty provision.
But we think that this is clearly not so under our statute and the decisions of this court. ORS 174.040; Dodd v. SIAC on petition for rehearing, 211 Or. 99, 111, 315 P.2d 138; State v. Hunter, 208 Or. 282, 288, 300 P.2d 455; Gilbertson v. Culinary Alliance, 204 Or. 326, 352, 282 P.2d 632. Another matter disclosed by the record should not go unnoticed.
"See also Dodd v. Ind. Acc. Com., 211 Or. 99, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957); but see Gilbert v. SAIF, 63 Or. App. 320, 663 P.2d 807 (1983). Although there is no worsening of claimant's organic brain damage, her symptoms and her mental condition have worsened.