109 P. 81 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
This is an action by the city of McMinnville to appropriate by eminent domain the water flowing from certain springs across defendant’s lands situated outside of the corporate limits. A demurrer to the complaint was sustained on the ground that it did not state facts sufficient to constitute a cause of action, a judgment being entered thereon, from which this appeal is taken.
The point intended to be tested by the demurrer, and here presented for consideration, is whether the city may exercise the right of eminent domain in its behalf, without first having received from one of the legislative branches of the State express or specific authority therefor. In 1906, Section 2 of Article XI of the Constitution of Oregon was amended to read as follows:
“Corporations may be formed under general laws, but shall not be created -by the legislative assembly by special laws. The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal' laws of the- State of Oregon.”
“The water and- light commission shall have power to acquire by purchase or condemnation proceedings, in the name of the city of McMinnville, or otherwise, all necessary right of way over the lands of any person or persons for the pipe line and wire for the said water plant and electric light plant, and also to extinguish all riparian rights which would otherwise interfere with the establishment and use of said water plants. Where condemnation proceedings are necessary to obtain said right of way, or to extinguish any riparian rights, the said proceedings shall be instituted ,by the commission in the name of the city of McMinnville as plaintiff, and shall be conducted in the same manner as proceedings for the condemnation of land or right of way for railroads, as provided by the laws of the State of Oregon.”
It is forcibly argued by defendant’s counsel that the amendment to our State constitution was not intended, and is insufficient, to authorize a municipality to exercise the right of eminent domain, without having first been sanctioned by legislative enactment. Plaintiff, on the other hand, maintains that such constitutional amendment clearly grants this power. The question is here presented for the first time, and so far as we can learn, has not been suggested in its present form for -the consideration of any of the courts of this country. We are cited to decisions, hereinafter to be considered, from Missouri, Minnesota, and Washington, where the question was presented in part; but in each of those cases the attempted exercise of this power was within the corporate limits of the municipality, while here the city seeks to exercise outside of its corporate limits the right to appropriate water for consumption therein. The question as to whether this prerogative may be exercised at all by municipalities, without legislative aid,, will first be considered.
The people are the paramount source of all legislative power exercised within the State, and whether they may invoke this power through direct legislation, either in the manner provided by the initiative and referendum amendment, or through the system recognized from the inception of our government (the system of direct legislation, presumed to be more substantial and lasting, and known as the constitutional method), they are limited only in so far as their powers may be abridged by the federal consitution. The federal constitution is a sufficient guard against any legislative system that might become sub
Would it be reasonable, then, to hold that our cities and -towns, before being permitted to exercise the right of eminent domain, must await the action of the legislature, by the enactment of some general law applying to all the cities of the State ? To do so would be to say that no city may exercise this right without the same privilege being extended to all incorporated towns. Such has never been the course pursued in this State. It has been the policy, since the inception of our government, to grant to the cities such rights only when by the legislature deemed proper and advisable; doing so only as the occasion might arise; specially and not generally. To change from this well-settled policy, and say that no city shall exercise this prerogative without granting it to all, whether demanded by other localities or not, it is obvious would be done only by the use of language clearly and expressly indicating such intent, and not by leaving it to inference. The language used is not only wanting in this respect, but it appears reasonably clear that ’such was not the intent. As before stated, this power by general enactments the
The confusion in the application of these principles to the case at bar arises largely from the change in our constitution being new, and to a great extent untried, making it difficult at first to appreciate that the legislature has been deprived of any possible interference with municipalities by special enactments, as heretofore, and forgetting that the power to exercise this sovereigntial attribute is with the entire people, and that it is always within their power to assert this prerogative, through their municipal agencies, when and in such manner as they may deem best. As held in Mt. Pleasant v. Beckwith, 100 U. S. 514, 524 (25 L. Ed. 699), municipalities derive their powers from the legislature, “except where the constitution of the state otherwise provides.” Here the constitution has made full provision upon the subject. Our municipalities, therefore, under the present status of our laws, do not owe their right to exercise the powers incident to their government and existence to the legislature, but retain and assert them by virtue of the amendment to the fundamental law enacted by the entire people. “Hence,” as stated by Mr. Justice Lovely in State ex rel. v. Ramsey County, 87 Minn. 149 (91 N. W. 302), “the
“It is true that the right of eminent domain is not expressed in the constitution; hence, if it exists, it must be inherent. But we surmise that relator’s counsel have not sufficiently discriminated between that which is inherent in the State and that which is inaccurately assumed to be inherent in the constitution, for the constitution must not be confounded with the State, nor with the absolute rights reserved to its people.”
“But the people being the paramount source of power, it likewise follows that the legislature does not confer this right absolutely, nor beyond the reserved power of the people to confer it upon municipalities or their governing bodies, when by the fundamental law the legislative authority is abridged or changed in that respect by a different distribution or new gift of governmental authority. Upon a similar contention to that urged here under an amendment to the organic law of Missouri, which is the prototype of our own home-rule amendment to the constitution, the Supreme Court of that state held the following language, which we approve and adopt: ‘The people * * in their sovereign capacity and by their organic law, could delegate to the people of a municipality this power to frame a charter for its own local government as to matters falling properly within municipality regulation. * * Such right is entirely in accord with the genius of our institutions bringing the regulation and government of local affairs within the observation of those who are to be affected thereby, and at the same time preventing the officious and selfish intermeddling with the charters of our cities without the knowledge of those whose rights are affected. This court, regarding the constitution as supreme in authority, maintained the validity of the special charter adopted by Kansas City on April 8, 1889, in State v. Field, 99 Mo. 352 (12 S. W. 802.)’ Kansas v. Marsh, 140 Mo. 458, 467 (41 S. W. 943.) The validity of the home-rule article in the Missouri constitution has been acknowledged by the Supreme Court of the United States, who held that a charter framed under it was an organic act of the municipality, to be construed as organic acts are construed; also, that a city incorporated thereunder was in a very just sense an ‘imperium in imperio,’ whose powers were self-appointing” — citing St. Louis v. Western Union Tel. Co., 149 U. S. 465 (13 Sup. Ct. 990: 37 L. Ed. 810.)
See, also Hopkins v. City of Duluth, 81 Minn. 189 (83 N. W. 536); In re Andrew Pfahler, 150 Cal. 71 (88 Pac. 270: 11 L. R. A. (N. S.) 1092); Kadderly v. Portland, 44
The Supreme Court of Washington appears to reach a conclusion at variance with the foregoing authority. See.City of Tacoma v. State, 4 Wash. 64 (29 Pac. 487). In that case, however, it incidentally appears that provision was made by the legislature for the exercise of the right of eminent domain by the cities of the first, third, and fourth classes; all reference thereto being omitted as to the second class. The inclusion of these powers in one group of cities, and exclusion therefrom in the other, evidently had much weight with the court in the determination there announced. But- whatever may have been the points upon which the conclusion of that court was predicated, we are not in accord with the views there enunciated.
This brings us to a consideration of the question whether the right of eminent domain máy,. in the manner provided for in the McMinnville charter, extend beyond the city limits. In this connection it is argued with much emphasis that it was never intended that a municipality could, whenever it desires to appropriate the property of a citizen of the State, whether within or without its limits, declare its wishes, and at the same time provide the manner for accomplishing them. At first blush this position would appear tenable, but it overlooks the fact that, as above shown, it is competent for the people of the State, by constitutional amendment, to delegate to the municipalities this power, making it a question of policy in which the State alone is concerned, and not the courts. In re Andrew Pfahler, 150 Cal. 71, 92 (88 Pac. 270: 11 L. R. A. (N. S.) 1092).
When we take into account the object to be attained by the new system, the reasons for which are heretofore discussed, it is clear that the delegation of this power is essential to the full accomplishment of the object sought;
Since the announcement of the views declared in the authorities cited by respondent, our State has adopted a number of changes in its constitution, the provisions of which are given in full in Farrell v. Port of Portland, 52 Or. 582 (98 Pac. 145). The authorities thus relied upon are, accordingly, not in point. In the last-named case, this court had under consideration the question whether the people of the Port of Portland had the power, under the constitution as amended, by direct vote to alter the act incorporating the Port of Portland, etc. In discussing the amendment there, and here, involved, Mr. Chief Justice Bean says: “But this section and the language used in it should not be construed alone; it is a part of the general initiative and referendum scheme first inaugurated by the amendment of 1902, and subsequently enlarged and extended by the amendments of 1906. All of these amendments, so far as they refer to the same subject-matter, should be read together, and be so interpreted as to carry out the purpose of the people
The judgment will therefore be reversed and remanded for such further proceedings as may not be inconsistent with this opinion. Reversed.
Concurrence Opinion
delivered the following concurring opinion.
I concur in the result announced in the majority opinion but dissent from the reasoning by which it is reached. The only question raised by the demurrer to the complaint is whether plaintiff, prior to the commencement of the action, had been invested with power to condemn private property, including water and water rights, beyond its corporate limits, for the purpose of constructing a municipal water plant to supply its inhabitants with water for domestic use. The complaint contains averments of certain charter powers to that purpose, incorporated into the municipal charter by initiative-amendment adopted by the people of McMinnville on the first Monday of November, 1907.
It is contended by the defendants that the right of eminent domain is not inherent in a municipality; but it is admitted that such power may be conferred by appropriate legislation. This was clearly and expressly done by the act of February 21, 1891 (Laws 1891, p. 145), which is amendatory of the, act of 1887 (Laws 1887, p. 145; Section 5108, B. & C. Comp.), to the general effect that any incorporated city or town of this State shall have
The averments of the complaint, intended to show special charter powers originating with the people of that municipality, and authorizing and empowering the city to exercise the right of eminent domain, are not, therefore, material, and are not to be considered, except in relation to the special limitation imposed by the said act to the exercise of such power. This limitation is in the form of a proviso to the act, “that in all cities containing less than fifteen thousand inhabitants, no action for the appropriation of private property or for the payment therefor, as allowed by this act, shall be taken by the council of such city or town, except a majority of the taxpayers of said city or town, voting at an election to be called and held for that purpose, have voted in favor of said action.” Subsequent to the filing of the complaint this proviso was eliminated by the amendatory act of February 23, 1909 (Laws 1909, p. 243).
There is no averment that the city of McMinnville has a population of 15,000 inhabitants; but I am of the opinion that the special matter alleged is equivalent to an averment that the people of that city have, by a majority vote,