166 P. 41 | Or. | 1917
delivered the opinion of the court.
In addition to these facts parts of statutes are set forth in the alternative writ which plaintiffs’ counsel maintain require a compliance with .the terms of such command. The defendants’ counsel admit the facts hereinbefore stated, but deny that the provisions of the law invoked authorize the granting of a peremptory writ. The solution of the question thus presented must depend upon the construction to be given to several statutes enacted at the session of the legislative assembly held in the year 1917, relating to the raising and disbursing of public funds for road purposes. Considering these matters in the order of their approval Section 1 of Chapter 175 accepts the provisions of the act of Congress referred to, and agrees to cooperate with the Federal Government in carrying the clauses thereof into effect. Chapter 339, Gen. Laws Or. 1913, created a State Highway Commission, com
“and if there is any deficiency in said highway fund for such purpose, then the State Board of Control of the state of Oregon is hereby authorized, empowered, and directed each, year during the next five years to sell the bonds of the state of Oregon in an amount sufficient to raise enough money which, taken together with any money available from appropriations from other funds of the state of Oregon, if any there be, to equal the amount required of the state of Oregon in order to fully meet the requirements, conditions, and provisions of said Federal statute, and the Federal officials operating under said statute; provided, however, that such bonds shall not be issued unless necessary to enable the state of Oregon to avail itself of the Federal aid as provided hereinabove, or any other aid hereafter furnished by the United States.”
A part of Section 4 of that chapter reads:
“After the funds, if any, which have been appropriated from the current moneys of the state for the purpose of meeting the requirements of this act have been exhausted, or if no appropriation therefor has been made, then each year said State Board of Control shall sign, date, issue, and sell bonds as required to raise funds sufficient to meet the obligation of the*657 state of Oregon in carrying on road construction as provided for in said Federal statute.”
This act contained an emergency clause and went into effect February 16,1917, upon its approval.
Though the “State Highway Commission” and the “state road fund” as designated in Chapter 339, G-en. Laws Or. 1913, are respectively referred to in Section 2 of Chapter 175 as “the state board, commissioners, or officers having control of the state highways” and the “highway funds,” no mistake could possibly arise in construing the latter phrases as indicating a legislative intent to specify the former expressions.
Chapter 194 requires the Secretary of State annúally to issue to owners of motor vehicles licenses permitting the use of such carriages, the amount of the demand depending upon the kind, power, and weight of the vehicle. The money so received must be turned over to the State Treasurer and known as “the motor vehicle fund.” Upon deducting therefrom certain charges the remainder is required to be returned to the treasurers of the counties from which the payments were received. This chapter further provides, however, that if the state of Oregon accepts the benefits of the federal appropriation for the construction of post and forest roads, the remainder of the motor vehicle fund, after retaining the necessary expenses, shall on December 31st of each year, while such aid is available, be paid over to the board, commission, or person entitled to disburse it. This act will go into effect August 1, 1917.
Chapter 237 creates a State Highway Commission, pursuant to which statute the plaintiffs were duly appointed and now hold their offices, and an engineer and other employees are also provided for, who col
Section 1 of Chapter 423 empowers the State Highway Commission, during the next five years, to sell bonds of the State of Oregon to the amount of $6,000,000, the money derived therefrom to be used to construct public highways, of which sum not more than $1,000,000 can be used during the year 1917. A part of subdivision 5 of Section 8 of that chapter reads:
“The funds with which to pay the portion of the expense of construction of said post and forest roads payable by the state of Oregon, shall be secured from the sale of bonds as is provided in House Bill No. 21 (chapter 175).”
This act was approved by the Governor so far as was necessary in order to refer it to the people to be voted upon June 4, 1917, at which special election it was ratified, and, thereupon, went into full force and effect. These references and excerpts are believed sufficient, with others hereinafter to be mentioned, to explain what parts, if any, of Chapters 175, 194, and 237 were changed or abrogated by subsequent enactments, and particularly by Chapter 423.
It will be remembered that Section 2 of Chapter 175, supra, requires the officers having charge of the state highways first to set aside out of any money annually received in the highway fund a sufficient amount to comply with the terms of the federal appropriation, and if there be any deficiency in that fund to match such donation, the State Board of Control is directed annually, for five years, to sell the bonds of the state in an amount sufficient to raise enough money which with other available funds will equal the amount required, but such bonds shall not be issued unless necessary to enable the state to avail itself of present or future federal aid. When that chapter was enacted there was a “motor vehicle fund,” which was collected by the Secretary of State, who after the payment therefrom of certain expenses turned over the remainder December 31st of each year to the county treasurers of the several counties of the state: Chapter 299, Glen. Laws Or. 1913. That statute had an emergency clause and went into effect February 16, 1917, upon its,approval; and this being so it retrains to be seen what alterations, if any, were subsequently made to Section 2 thereof. It will be borne in mind that Chapter 194 imposed upon owners of certain carriages licenses, the money to be derived there
Section 7 of Article II of Chapter 237 makes it incumbent upon the State Highway Engineer to furnish county courts of the various counties of the state, without expense to such counties specifications relating to the construction and maintenance of public highways, and upon application therefor he is required to cause such roads or any part thereof to be definitely located and their grades to be permanently established, the cost thereof to be charged on the books of the State Highway Department as a part of the expense of construction. Section 13 of the article last referred to requires the State Highway Commission to set aside from the “highway fund,” consisting of the one-fourth mill tax, amounts of money sufficient (1) to meet the payment of salaries and expenses of the State Highway Department, (2) to cover the costs of operating and maintaining state highways which have been constructed or improved, (3) to match the federal appropriation, the remainder, if any, to be used for the purposes of that enactment. The reservation of these several amounts impliedly amended Section 2 of Chapter 175 by deducting from the one-
In-this condition of the statute last mentioned Chapter 423 having received the requisite majority votes of both branches of the legislative assembly was submitted to and ratified by the people at a special election held June 4, 1917.
Section 11 of that chapter declares:
“The State Highway Commission shall pay the interest upon said bonds as the same shall become due, from any funds subject to its control, from whatever source the same may come, and the payments upon the principal of said bonds, as the same shall become due, shall be paid by the State Highway Commission from any funds within its control, without regard to the origin of said funds.”
Section 12 thereof provides:
“Any surplus or unexpended'balance of the fees received under the operation of House Bill No. 509 (chap. 194, creating the ‘motor vehicle fund’) * * remaining after the payment of all claims incurred in carrying out the provisions thereof * * shall be transferred * * to an account to be expended under the jurisdiction of the State Highway Commission in payment of the interest and principal as the same shall become due upon bonded indebtedness of the state of Oregon, contracted for road purposes under the provisions of this act or the provisions of said House Bill No. 21 (chap. 175).”
It will be observed that this section expressly sets aside the “motor vehicle fund” to the payment of interest on bonded indebtedness of the state, and hence no part of the money so to be obtained can be applied to make up the fund required to match the federal appropriation.
It is conceded that the highway department will be obliged to pay during the year 1917, in locating, at
“The funds with which to pay the portion of the expense of construction of said post roads and forest roads payable by the state of Oregon shall be secured by the sale of bonds as is provided in House Bill No. 21 (chap. 175).”
The bonds to be issued pursuant to the provisions of Section 2, Chapter 175, were required to be sold by the State Highway Commission, which then consisted of the Governor, Secretary of State, and State Treasurer: Chapter 339, Gen. Laws Or. 1913. Section 4 of
“The State Highway Commission (the plaintiffs herein) shall provide such method as it may deem necessary for the advertisement of each issue of said .bonds before the same are sold, and shall also require such deposit with bids as may be required, and generally shall conduct the sale and issuance of said bonds under such rules and regulations not inconsistent with this act as shall be adopted by said commission.”
The conclusion we have reached is strengthened by the negative argument of C. E. Spence, Master of the State Grange, and others, who, at page 34 of the pamphlet published and sent out by the Secretary of State to the voters prior to the election held June 4, 1917, opposing the ratification of Chapter 423, said:
“Section 8 of the bill provides that the bonds provided for in the Bean (the author of the measure) bonding- bill (chap. 175) to be issued only in case of an emergency, shall under House Bill 550 (chap. 423)*664 be issued and tbe proceeds thereof be placed in the state ^treasury to be expended by the State Highway Commission. Then it is not a six million dollar bond issue, bupa seven million, nine hundred thousand dollar bond issue.”
Our deduction is further fortified by a communication from Mr. J. D. Brown of the Farmers’ Union opposing the ratification of Chapter 423, supra, published June 2, 1917, in the “Oregon Voter,” a magazine printed weekly at Portland, Oregon, and devoted to the advancement of every material interest that tends to promote the general welfare of the state. From the article referred to the following excerpt is taken:
“On June 4 the people of Oregon will have an opportunity to decide whether they favor issuing bonds to the extent of $6,000,000 for the purpose of paving about 400 miles of scenic highways in the state. At the same time will be decided whether bonds to the extent of $1,800,000 provided in the Bean bill (chap. 175, supra) shall be issued to pay the interest on the $6,000,000 issue for the first five years these bonds are to run. Thus we will vote for or against the issuing of $7,800,000 of state bonds.”
There can be no reasonable doubt that the sale of state bonds in an amount sufficient to raise enough money to meet that appropriation for the year specified devolves upon the defendants, the performance
Demurrer Overruled.
Peremptory Writ Issued,,