By the Court,
The question here presented for consideration is, whether the several acts of the legislative assembly referred to in the appellant’s petition authorizing the construction of the Dalles and Sandy road and the Eastern Oregon and Winnemucca wagon road are constitutional.
Article 4, section 23, subdivision 7, of the constitution is as follows: “The legislative assembly shall not pass
In the case of The People v. Hills, 35 N. Y. 449, it was held that “an act to amend and consolidate the several acts relating to the city of Boehester,” was a local act, within the meaning of the constitutional provision “ that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” In The People v. O'Brien, 38 N. Y. 193, the
In The People v. Allen, 42 N. Y. 378, the question was whether an appropriation of money to improve Bouquet river was a general or local act. It was a small stream emptying into Lake Champlain, and navigable for boats about three miles from its mouth. Of it the court says: “Its name is not found upon the general maps of the state; it is not found in any general history of the country, and its character is in no way defined in any public statute; and it is not of such notoriety as to be known generally to the people of the state; and hence the courts can take no more notice of its character and existence than of the character, location, and usefulness of the ordinary highways of the state. In this respect it is unlike the great rivers and lakes of the state, and the mountain ranges, which are matters of general history and public notoriety.” The court further says: “This is unlike any of the improvements of the Hudson river. That is a river navigable for about one hundred and fifty miles, forming a necessary link in the chain of water communication between the ocean and the great lakes. It acts an important part in the commerce of the whole state, and the citizens of the state generally are interested in its navigation. An improvement made in its navigation at any point would not be mainly or materially for the benefit of the people living at or near that point, but
The foregoing cases have been referred to, to show what are to be considered local acts or local laws. In contradistinction to these, all acts which relate to the location and construction of the public buildings of a state, to the establishment of new counties and prescribing their limits, are public acts, because,in their very nature the people of the whole state have an interest in them. In the case of The State ex rel. Cothren v. Lean, 9 Wis. 279, the supreme court of Wisconsin say in relation to the establishment of the county seat of Iowa county: “At the county seat of each county, the state through its proper officers administers justice; all the inhabitants of the state are liable to be sued in any county and to have their rights litigated there. And we think there is much force in the reasoning of the late Chief Justice Stowe, in the Washington county seat case, where he contends that laws relating to the location of county seats are public acts; and this view is sustained by other authorities.” The court in that case also says that it is undoubtedly difficult to draw an accurate line between general laws and those not general, and to establish a test that will be entirely satisfactory. But it was there held that the character of an act of the legislature, whether it be a “ general” law or not, is determined by the greater or less extent to which it affects the people, rather than by the ex
In the case of West v. Blake, 4 Blackf. 236, the supreme court of Indiana says “ that an act authorizing.au agent of the state to lay off and sell lots in a particular town, it being the seat of government, was a public act.” And in reasoning upon the question it says: “ Statutes incorporating counties, fixing their boundaries, establishing courthouses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not, however, for that reason special or private acts.” Other cases might be adduced to mark the distinction between public and special or local laws. The general principle to be deduced from all the authorities seems to be this, that whenever an act of the legislature authorizes any public road or other internal improvement to be made or other act to be done, which in its nature is more beneficial to the community at large than to the inhabitants in the immediate locality of the road, or other internal improvement, such act is to be considered a public and not a special or local law.
During the ten years of territorial government in Oregon, it was the constant practice of the legislative assembly to pass special laws to lay out territorial roads from one point to another) sometimes in the same county, but more frequently in two or more counties of the territory. Generally they were passed through the influence of interested parties, who were often named in the act as commissioners to locate the road, and the expenses of such location were imposed on the counties in which the roads were established. And then by the act of January 27, 1854 (Statutes of Oregon, 1854), the expense of opening and working them was imposed on the several road districts through which they passed. These burdens thus imposed on the people of special local
Referring to the Dalles and Sandy road, now partially constructed under these acts of the legislative assembly: It is well known to all that during the winter months it is the only practicable route for a public road through the mountain range which separates eastern from western Oregon, and it was deemed to be of the most importance to the people of the state that trade and travel and mail facilities should not be obstructed; that intercourse between these two great divisions of the state should not be suspended during that season of the year when navigation on the Columbia is genererally closed by ice in the river. It was well known to the legislative assembly that, for weeks at a time, all communication between the east and west was suspended, until the interruption came to be regarded as almost a public calamity, and it was to prevent these obstructions that the appropriations of money were made to construct the Dalles and Sandy road. It is in no sense a local road. The advantages to the inhabitants living along the route or line of the road are insignificant when compared with what will be the benefits to the people at large, or at least to those residing in the two great sections before referred to, whenever the road shall be completed.
The reasons given to show that the acts making appropriations to aid in the construction of the Dalles and Sandy road are not special or local laws, will equally apply to the act authorizing the construction of the eastern Oregon and Winnemucca wagon road.
It may be noted here that the moneys appropriated by these acts are not derived from taxes levied on the people of the state. The five per centum of the net proceeds of the sales of the public lands are paid by the United States to this state expressly for the purpose of making public roads and
There is another reason why the acts of the legislative assembly, referred to in the petition, are to be regarded as general laws, and not special or local acts. Article 4, section 27, of the constitution, declares that “every statute shall be considered a public law, unless otherwise declared in the statute itself.” Neither of the acts contains such a declaration.
We hold, therefore, that they do not come within the constitutional inhibition contained in section 23 of article 4, that “the legislative assembly shall not pass special or local laws * * * * for the purpose of laying, opening, and working on highways.” We think the objection to the sufficiency of the first and second clauses of the petition is well taken by the counsel for respondent. In neither of them is there any allegation that when payment was demanded on the twenty-seventh day of August, 1879, there was sufficient money in the treasury to pay said warrants and applicable to such payment. The third clause in the petition is not open to this objection, and a peremptory writ of mandamus ought to be allowed, commanding the respondent to pay the warrant for one thousand nine hundred and ninety-six dollars, unless he shall ask leave to file an answer and defend upon the merits.
It is ordered that the judgment be reversed, and this cause remanded to the court below for further proceedings. And it is further ordered that the costs of this proceeding be paid by the state.
Boise, J., dissents from this opinion, on the ground that the laws providing for these warrants are special laws within