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Oregon Revised Statutes

Or. Rev. Stat. § 174.040 (2026)

Severability

✓ current as of May 2026
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      174.040 Severability. It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

      (1) The statute provides otherwise;

      (2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or

      (3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.

 

      174.050 [Repealed by 1983 c.740 §41]

Notes of Decisions
Cited in 63 cases (7 in the last 5 years), 1955–2025 · leading case: Jones v. Gen. Motors Corp., 911 P.2d 1243 (Or. Ct. App. 1996).
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State v. Flores, 343 Or. App. 671 (Or. Ct. App. 2025). · cites it 3×
State v. Flores, 343 Or. App. 671 (Or. Ct. App. 2025). · cites it 3×
Proj. Veritas v. Michael Schmidt (9th Cir. 2025).
State v. Fudge, 552 P.3d 145 (Or. Ct. App. 2024). · cites it 5× “700 would implicate ORS 174.040(3), because ORS 137.700 specifies no other sen- tence for first-degree sodomy under ORS 163.”
Proj. Veritas v. Michael Schmidt, 72 F.4th 1043 (9th Cir. 2023). “137, 139 (1996) (per curiam), and both Oregon statutory law and Oregon Supreme Court precedent require us to apply a presumption in favor of severability, see Or. Rev. Stat. § 174.040 ; Outdoor Media Dimensions, Inc.”
Delta Air Lines, Inc. v. Dept. of Rev. (Or. T.C. 2023).
State v. Wolfe, 486 P.3d 748 (Or. 2021). · cites it 3× “Citing ORS 174.040, amicus argues that we should “remov[e] the provision from the effective date clause that allows the State to charge a defendant with aggravated murder for acts committed prior to the statute’s creation.”
State v. Link, 441 P.3d 664 (Or. Ct. App. 2019). “3d 100 (2009) (we prefer to sever the unconstitutional provision and salvage the remainder, and the "legislature has codified that preference at ORS 174.040"). Thus, following guidance from the parties at defendant's resentencing, the trial court will need to determine how to…”
State v. Steele, 414 P.3d 458 (Or. Ct. App. 2018). · cites it 2× “Of course, courts are encouraged to take that approach with statutes because ORS 174.040 requires it. 3 But that approach *692 may be more than just the result of a severability clause or severability statute.”
JäRLSTRöM v. Aldridge, 366 F. Supp. 3d 1205 (D. Or. 2018). · cites it 2×
Moro v. State of Oregon, 351 P.3d 1 (Or. 2015). · cites it 4× “36 Additionally, we hold that the supplemental pay- ments provided for in SB 861 cannot be severed from the unconstitutional application of SB 861 and are, therefore, void in whole, even though the supplemental payment provi- sion itself is not unconstitutional.”
Moro v. State of Oregon (Or. 2015). · cites it 2×
Show all 63 citing cases →
— Or. Rev. Stat. § 174.040(1) — 3 cases
Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).
City Univ. v. Off. of Educ. Policy, 870 P.2d 222 (Or. Ct. App. 1994).
City Univ. v. Off. of Educ. Policy, 885 P.2d 701 (Or. 1994).
— Or. Rev. Stat. § 174.040(2) — 7 cases
Moro v. State of Oregon, 351 P.3d 1 (Or. 2015). “36 Additionally, we hold that the supplemental pay- ments provided for in SB 861 cannot be severed from the unconstitutional application of SB 861 and are, therefore, void in whole, even though the supplemental payment provi- sion itself is not unconstitutional.”
Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).
City Univ. v. Off. of Educ. Policy, 885 P.2d 701 (Or. 1994).
State v. Wolfe, 486 P.3d 748 (Or. 2021). “Citing ORS 174.040, amicus argues that we should “remov[e] the provision from the effective date clause that allows the State to charge a defendant with aggravated murder for acts committed prior to the statute’s creation.”
Brookwell v. Frakes, 642 P.2d 1183 (Or. Ct. App. 1982).
— Or. Rev. Stat. § 174.040(3) — 6 cases
Deras v. Myers, 535 P.2d 541 (Or. 1975).
State v. Gornick, 102 P.3d 734 (Or. Ct. App. 2004).
City Univ. v. Off. of Educ. Policy, 885 P.2d 701 (Or. 1994).
Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).
State v. Fudge, 552 P.3d 145 (Or. Ct. App. 2024). “700 would implicate ORS 174.040(3), because ORS 137.700 specifies no other sen- tence for first-degree sodomy under ORS 163.”
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