Page:Federal Reporter, 1st Series, Volume 10.djvu/693

 THE OLaRAMABA. 681 �Wallamet river, shall be required to take a pilot or pay half pilotage, if such vessel be towed by a tug or steamer." . �It is not alleged in the libel that the Glaramara made the voyage in question to Portland under sail, or that she was not towed here by "a tug or steamer." It would probably be better pleading to have raised this question by a peremptory exception, analogous to a plea in bar at common law, containing an allegation that the vessel made the voyage in tow of a steamer. But it is tacitly admitted that she was 80 towed, and counsel have submitted the question upon this exception, in the nature of a demurrer to the libel, for the omission of the allegation that the bark made the voyage under sail, and it will be 80 considered. �Counsel for the libellant admits that under the act of 1870, sujyra, the bark was not required to take a pilot or pay half pilotage unless it appears that she was not towed up the river, but insista that said act is invalid because it is an attempt to amend the act of 1865, s«- pra, which required her to take a pilot or pay such pilotage whether towed or not, contrary to section 22 of article 4 of the constitution of the state, which enacts: "No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length." �In my judgment this objection to the validity of the act is well taken. It is in substance and effect a material amendment of the act of 1865, made without the slightest regard to the mandate of the con- stitution, and in direct contravention of it. But it appears that the supreme court of the state, in Grant Go. v. Sels, 5 Or. 243, bas decided that a repeal by implication — that is, without referring to the act repealed — is not within the purview of the constitutional prohi- bition, and is therefore valid. This court is bound by that decision. A similar question was before me in Mayer v. Cahalin, 6 Sawy. 355, when I took occasion to give my viewsof the constitutional provision, but gave judgment according to the ruling in Orant Co. v. Sels. But it may be that this act of 1870 is invalid even under the doctrine of the supreme court as announced in Fleischner v. Chadwick, 5 Or. 153 ; Grant Co. v. Sels, Id. 243 ; Doland y. Barnard, Id. 391. The act is ientitled "An act further to amend the several acts relating to pilot- age and towage on the Columbia bar and the Columbia and Wallamet rivers." This is at least a reference to the act of 1865 by its "sub- ject" if not by its title. The distinction taken in the cases cited seems to be that if an act professes to be amendatory of another it ��� �