167 P. 791 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
“To provide the city with good and wholesome water for domestic, fire and power purposes; and for the erection, construction or purchase of such waterworks and reservoirs, within and without the limits of the city, as may be necessary or convenient therefor; and the cost of erection, construction or purchase of such waterworks shall he provided for in the manner prescribed in Section 51 of this act.”
Subdivision 36 is as follows:
“To grant to any private person, or to any private corporation, a franchise or permission for the erection or construction of waterworks within the city and with all rights and powers pertinent thereto, including the right to use the streets and public ways for the purpose of laying pipes and other necessary appurtenances. Such franchise shall be used under such rules and regulations and restrictions, including the rate to be charged for such water, as the council may from time to time prescribe.”
By Ordinance No. 33, page 34, Charter and Ordinances of Dallas, the city authorized the sale of bonds to the amount of $15,000 for the purpose of acquiring and constructing a system of waterworks for the city, of which the sum of $3,000. was expended for rights of way and $12,000 used in part payment to plaintiff.
“The term ‘public utility’ as used herein, shall mean and embrace all corporations, companies, individuals, associations of individuals, their lessees, trustees or receivers (appointed by any court whatsoever), that now or hereafter may own, operate, manage or control, any plant or equipment or part of a plant or equipment in this state, * * for the production, transmission, delivery or furnishing of heat, light, water or power, and any and all whether either directly or indirectly to or for the public, and whether said plant or equipment or part thereof is wholly within any town or city, or not.
“No plant owned or operated by a municipality shall be deemed a public utility under or for the purposes of this act.”
The question for determination, therefore, is: Who is the owner of the water plant within the meaning of the public utility act of 1911? If owned by the city then the commission has no authority to fix the rates, but if owned by Gates it has that authority. It appears from the record that all the deeds for the right of way were executed to the City of Dallas. The title of the ordinance and the provisions thereof clearly indicate that the city is the owner of the plant. The payment of $12,000 and all tolls that might be collected by Gates during the twenty years mentioned, or such further time as the same might be extended, was the consideration to be paid by the city for the construction, extension, repair, and management of the plant.
Section 715, L. O. L., declares the general rule of construction of statutes thus;
*451 “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.”
Section 716, L. O. L., reads in part as follows:
“In the construction of a statute the intention of the legislature, * * is to be pursued, if possible. * #
In Helm v. Gilroy, 20 Or. 517, 522 (26 Pac. 851), the court said:
“The true criterion of an irremovable fixture consists in the united application of several tests: (1) Real or constructive annexation of the article in question to the realty. (2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation, to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made. ’ ’
See Blanchard v. Eureka Planing Mill Co., 58 Or. 37 (113 Pac. 55, 37 L. R. A. (N. S.) 133); Bay City Land Co. v. Craig, 72 Or. 31, 44 (143 Pac. 911); Johnson v. Pacific Land Co., 84 Or. 356 (164 Pac. 564); 11 R. C. L., p. 1059 et seq.
Section 60, Charter of the City of Dallas, 1901, provides as follows:
“The fee of all streets and alleys now within the City of Dallas is vested in the City of Dallas and shall forever remain open as thoroughfares for the use of the public unless legally closed by the city council.”
“Whether the city intends leasing the plant when it has acquired it, or has not provided the ready funds with which to pay for its construction, cannot affect them in the least. The contract contemplates that the city shall own the system when completed, and the fact that the builder, as a part consideration for its construction, is to take as lessee the tolls for a term of years, cannot affect the right to construct, and for that purpose to acquire the easements necessary thereto.”
“An owner is one who has dominion over that which is the subject of the ownership. He has the right to make such use of it, consistently with the rights of others, as he may see fit. The ownership may extend to the entire thing, or may be limited to an interest in it, and whatever is the subject of the ownership is held by the owner for his own individual benefit: Flormam v. School Dist. No. 11, 6 Colo. App. 319 (40 Pac. 469), 6 Wds. & Phrases, p. 5135.”
We have, however, to consider who is the owner of the water plant within the meaning of the public utility act. The language of the latter part of the section defining a public utility says, “no plant owned or operated by a municipality shall be deemed a public utility under or for the purposes of this act.” 'It seems to us that this clearly excludes the plant in question from
Counsel for defendants cited and relied upon Hunter v. City of Roseburg, 80 Or. 588 (156 Pac. 267, 157 Pac. 1065). We see no analogy between that case and the present one. They urged that according to the terms of the ordinance and contract the city never agreed to purchase the plant from Gates. This might be answered by saying that the city would not be expected to make an agreement to purchase its own property. In its contract with Gates to construct the waterworks it was to pay a definite sum and in addition he was to have the proceeds derived from the plant until the city should pay an amount to be thereafter fixed. The decree of the trial court will be reversed and one entered here setting aside the order of the commission.
Reversed and Decree Rendered.
Modieied on Rehearing.
Rehearing
.On Petition for Rehearing.
(168 Pac. 939.)
From Polk: Percy R. Kelly, Judge.
On petition for rehearing. Former opinion modified.
Mr. George M. Brown, Attorney General, and Mr. John 0. Bailey, Assistant Attorney General, for the petition on behalf of the Public Service Commission of Oregon.
Mr. Ed F. Goad, for the petition on behalf of the City of Dallas.
Messrs. Huston & Huston ánd Mr. Oscar Hayter, opposing the rehearing- in the interest of plaintiff-appellant.
In Banc.
Opinion by
The brief of the learned Attorney General seems to us to be merely a repetition of his arguments urged upon the hearing. The question in a nutshell is this: Who owns the Dallas water plant? If Gates owns it, the commission has a right to regulate the rate charged for water. If the city of Dallas owns it, the commission has no such right. The situation may be briefly stated thus:
In 1902 the City of Dallas, by virtue of a provision of its charter, was authorized to expend the sum of $25,000 for the construction of a water system. The amount being, in the judgment of the inhabitants, in
It was further provided that after the plant had passed certain tests and the payments had been made and dating therefrom, “the contractor (plaintiff) shall retain as lessee the use of said plant for a period of twenty years.” It was also provided that at the expiration of twenty years, or at the end of each succeeding period of five years thereafter, the city at its option might cause a valuation to be placed upon the property, if the contracting parties should fail to agree, and the amount of such valuation should be paid to the contractor less the sum of $12,000 already paid by the city, but until such determination and payment the use and lease of the plant was to continue in the contractor upon the same terms as originally
Under this contract plaintiff did not and does not now own a single rodo of pipe or a single cubic foot of reservoir. By the words of the contract, the plant remains the property of the city and plaintiff’s interest is that of a mere lessee. In condemning the right of way, the city appeared as a plaintiff claiming-under pleadings sworn to by its officers — that it required the property for its use, not plaintiff’s use.
In the case of Dallas v. Hallock, 44 Or. 246, 256 (75 Pac. 204), cited in the original opinion, the very question at issue here was discussed. Justice Wolverton said :
“The contract contemplates that the city shall own the system when completed, and the fact that the builder as part consideration for its construction, is to take as lessee the tolls for a term of years, cannot affect the right to construct, and for that purpose to acquire the easement thereto.”
“The provision relied on by appellant in exempting the city from the Act of 1911, is as follows: ‘No plant owned or operated by a municipality shall be deemed a public utility under this act! I feel confident that the character of ownership intended by the legislature in making this exception, was such ownership as carried with it the operation of the plant in distributing water to its inhabitants, as well as the ownership in fact.”
Such is not the natural import of the language used, which makes the exception depend upon one or the other of two contingencies. (1) Where the city owns a water system, and (2) where it operates a water system owned by someone else. Construction is as a usual thing, only resorted to where the statute is ambiguous, Here it is clea,r. If it had been the inten
To say that a city which, under the ordinary rules of construction of contracts would be the owner, is, for the purposes of this act not the owner, and that the lessee who under the ordinary course of construction would be held not an owner is, for the purposes of this act an owner, would be to amend the statute by the baldest judicial legislation.
Tbe contract between the City of Dallas and plaintiff was not concocted by a set of grafting officials, conspiring in secret to give the plaintiff some advantage but the question of issuing bonds to carry out the contract was submitted to a vote of the people, who by withholding their approval could have defeated the whole project. That the contract has now become more or less profitable is no reason why the courts should go beyond the plain letter of the law to give the Public Utilities Commission jurisdiction to set it aside or modify it. We have been asked by counsel for the city to decide several other matters which are not involved in the question before us. Our decision upon such questions would have no legal validity and the contract seems too plain to require interpretation.
Modified on Petition for Rehearing.
