Board of Canal & Locks Commissioners v. Willamette Transportation & Locks Co.

| Or. | Dec 15, 1877

By the Court, Prim, C. J.:

This proceeding was commenced in the circuit court of Multnomah county, to compel appellant, as the owner of certain steamboats, bj writ of mandamus to furnish the secretary of the board of canal commissioners with a list of the tons of freight and number of passengers passed through said canal and locks, as prescribed by section 12 of an act entitled “An act to provide a board of canal commissioners for the canal and locks at the Willamette Palls, and to otherwise regulate the passage of steamboats and other water craft through the same,” approved October 19, 1876. (Ses. L., 1876, 14.)

A demurrer was interposed to the petition and writ, by appellant, on the ground that they do not contain a statement of facts sufficient to entitle respondent to the writ. This application is based upon section 583 of the civil code, which authorizes the writ “to be issued to any inferior court, corporation, officer or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust or station.” Section 12 of an act entitled an act to provide a board of canal commission* ers, etc., approved October 19, 1876, provides that “it shall be the duty of boat owners, using the said locks, to make out two certified lists of tons of freight and number of passengers passing through the said locks, which lists are to be tendered, one to the agent of the locks company, and one to the secretary of the board of canal commissioners, and by both preserved for reference,” etc.

Section 16 of said act provides that “the board shall annually certify to the secretary of state the number of tons of freight and the number of passengers passing through said locks, * * * to the end that knowledge of the receipts of the said locks company may be authoritatively had.” While it is admitted by appellant that section 12 of said act imposes a duty upon all boat owners, who may pass their boats through said locks, to furnish a list of freight and passengers, as'therein provided, yet it is claimed that such duty cannot be enforced by the writ of mandamus, because it is not a duty, as they contend, resulting from an office, trust or station, witliin the meaning of section 583 of the code. By reference to Webster’s Dictionary, we find that the word station is defined to mean employment, occupation or business.

Steamboats, when engaged in the transportation of freight and passengers upon a navigable stream for hire, are common carriers, which is a business in which the public has an interest. And the owners of boats engaged in such business may be said to occupy a.sort of public office, station or business, upon whom the legislature in the exercise of its sovereign power has seen fit to impose this regulation in behalf of the public. And we see no reason why such regulation may not be enforced by this writ, for the want of any other adequate remedy.

In the state of Illinois it has been held to be the proper remedy to compel a railway company to deliver to a particular warehouse or grain elevator grain consigned thereto in bulk along the line of said railway. The right to relief in such cases is based upon the duty or obligation of such companies to perform such duty as common carriers, and the want of any other adequate remedy. (C. & N. W. R. R. Co. v. State of Illinois, 56 Ill. 565.)

But it is further claimed by counsel on behalf of appellant, that section 12 of the act of 1876, which imposes the regulation in question upon the owners of steamboats and other water craft, is an unwarranted attempt on the part of the legislature to interfere with private business, and is not within the scope of legitimate legislation, and therefore should be treated as void. The position of the appellant is based upon the theory that the locks as well as the steamboats in question are the private property of the appellant, and therefore subject only to its control and private management, the same as any other private business, without regard to such regulations as may be imposed by the legislature in behalf of the public. This theory, we think, is not well founded, either in law or fact.

To say nothing of the assistance granted by the state by the passage of an act entitled “An act to appropriate funds for the construction of a steamboat canal at the Willamette Falls,” approved October 21, 1870, we find that the canal and locks were constructed by a company incorporated and organized under the laws of the state for that purpose. They were constructed upon the waters of a navigable stream, in which the public have an interest. The right of eminent domain has been put forth in its behalf by the state, through which private as well as public property has been condemned and appropriated to its use. It has been placed in the possession of an important and valuable franchise not possessed by other private individuals. In fact, it may be said to have been placed in the possession of a valuable property “ standing in the very gateway of commerce,” which not only “affects a great public interest,” but in which the “ public have a proprietary interest as a part owner.”

In such matters we are not aware of any limitation upon the legislative power of a state, except such as are imposed by the constitutions of the United States and this state; and no particular provision in either of those instruments has been pointed out by counsel on behalf of appellant by which the legislation in question is prohibited. Under our fundamental law, as we understand it, every state has- the right to exercise the power of sovereignty within the limits of its dominion; that is to say, the power to govern men and things within such limits; and it is by virtue of this power that it legislates, and its authority to make regulations of commerce is as absolute as its power to pass health laws, except in so far as it has been restricted by the constitution of the United States. (Lic. Cas. 5 How. U. S. 583.)

In Munn & Scott v. The State of Illinois, Mr. Chief Justice Waite, in speaking of these powers, says: “Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackman, bakers, millers, wharfingers, innkeepers, ete., and in so doing to fix a maximum of charges to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the states upon some or all of these subjects, and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against the interference with private property.” In this connection, he further says that “when private property is effected with a public interest, it ceases to be juris privati only, * * * but becomes clothed with a public interest when used in a manner to make it of a public consequence, and affects the community at large. When therefore one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has created.” (Munn & Scott v. The State of Illinois, 4 Otto, 125.)

Thus appellant having been the owner of certain steamboats engaged in the transportation of freight and passengers, for hire, upon the waters of a navigable river in which the public have a proprietary interest as part owner, and having devoted its said, boats to a use in which the public have an interest, it must submit to such commercial regulations as may be imposed by legislative authority for the public good.

The regulation imposed by section 12 of said act, we think is a reasonable one, and not beyond the scope of legitimate legislation. But it is further urged on behalf of appellant that it is a private corporation duly incorporated under the laws of the state for the purpose, among other things, of carrying on the business of navigating the waters of the Willamette river, with steamboats and other water craft, for the transportation of freight and passengers for hire, and that since the first day of January, 1876, it had been engaged in said business; and that ever since the eighth day of March, 1876, it has been the sole owner of said canal and locks, which it holds for the use of its own boats as part of its line of transportation upon said river, above and below the falls; and that no tolls are charged or payable on said boats, or freight and passengers shipped therein, and passed through said canal and locks.

To this proposition of appellant we. have to say that notwithstanding the said canal and locks may now be and have been owned by appellant ever since the eighth day of March, 1876, nevertheless we are of the opinion that it is subject to the regulation in question, and is obliged to furnish certified lists of the amount of freight and the number of passengers carried through the same on its boats, the same as the owners of other boats and water craft.

It follows from the views herein expressed that the judgment of the court below should be affirmed.