14 Or. 188 | Or. | 1886
This action was brought under an act of the legislative assembly to condemn and appropriate what is known as the public levee, in the City of Portland, to the use of the plaintiff, for the purposes therein stated. (Sess. Laws, 1885, p. 100.) It appears from the act that originally the piece of land in dispute was dedicated to the public use as a levee or public landing by Stephen Coffin, who subsequently, by deeds in 1865 and 1871, which were duly recorded, conveyed the same to the city of Portland. What right or estate remaining
It would not be difficult to give this language a construction so as to effect a purpose which the legislature could not authorize. But it does not follow that the act is void because something might possibly be attempted under it, and seem to be covered by it, in consequence of the broad language used, which the legislature could not give a legal right to do. It is our duty, if the act will admit of a construction which will justify it, to sustain it. The intendments in favor of the validity of an act of the legislature must prevail, until its provisions are necessarily void. The main purpose and purport of the act was succinctly stated by Mr. Justice Deady, in Coffin v. City of Portland, supra, in which he said that the act was “ a grant or license to the Portland & Willamette Vallev Railroad Co.,
It is contended principally, (1) that the act is void in authorizing the plaintiff to do what the legislature is without power to authorize; and (2) that it is void, because the use to which the act devotes the property, or authorizes the plaintiff to devote it, is inconsistent with the -use to which it is already dedicated. The plenary power of the legislature over public corporations, except as to vested rights of property, and of creditors, is indubitably established. (Dartmouth College Case, 4 Wheaton, 519.) “Municipal corporations,” said Dillon C. J., “ owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all the municipal corporations in the state, and the corporations could not prevent it. We know of no limitation on this right, so far as the corporations themselves are concerned. They are, so to phrase it, mere tenants at will of the legislature.” ( City of Clinton v. Cedar Rapids and Mis. R. R. Co., 24 Iowa, 456.) But while the municipality exists, as to private property which it may have been allowed to acquire under its charter, such property is, doubtless, as much protected by the constitution as the private property of the citizen. Nor can the legislature deprive the city of such property, except it be for public use, and only then upon just compensation. But the easement or property which the city has in public streets or public places is of a different character. It is not private property of the city, nor can the city sell or use it for other than proper public purposes. The city might sell the market house,
The interest in the use of streets and highways, and public places, and their uses, being publici juris, the power of regulating such use is in the legislature,- as the re|>resentative of the whole people. It is a part of the political or governmental power of the state, in no way held in subordination to the municipal corporation. It has, therefore, been held in many cases that the legislature has the power to authorize the building of a railroad on a street or highway, and may directly exercise this power, or devolve it upon municipal authorities. (Moses v. Railway Co., 21 Ill. 516; Murphy v. Chicago, 29 Ill. 279; Mercer v. Railway Co., 36 Pa. St. 99; Springfield v. Railroad Co., 4 Cush. 63 ; People v. Kerr, 27 N. Y. 188 ; Lackland v. Railroad Co., 31 Mo. 180 ; City of Clinton v. Railroad Co., supra.)
The decisions, however, are not entirely harmonious, where the public have only an easement in the street or highway;
It may be—it is not necessary for us to decide the question —that private citizens owning adjoining property may have rights or estate in or to the use of streets or public places over which the power of the legislature is not supreme or plenary. Whatever their rights may be, we are not required to consider upon this record. They are not parties, and their interest cannot be affected by this proceeding. All that we are required to consider is, the rights of the defendant, a municipal corporation; and, as we have seen, these rights the defendant holds subject to the supreme will of the legislature, as the representative of the people; and that, so far as regards the defendant, its streets and public places, and their uses, are not the private property of the municipality, in the sense that the legislature cannot authorize the same to be used for a public purpose unless it makes compensation to the city for such use. In People v. Kerr, supra, Emott, J., said: “ The title (in the streets) thus vested in the city of New York is as directly under the power and control of the legislature, for any public purpose, as any property held directly by the state or any public body or officers; and its application cannot be challenged
The principle deducible from these authorities is, that when property is acquired by the exercise of the right of eminent domain, on payment of its value from the public funds, or by dedication under a statute, where the fee to the soil passes out of the dedicator over the use of such property, so far as the municipal corporation is concerned, the legislature possesses unlimited control. It is immaterial whether the fee of the street is in the public, or in the city in trust for the public; as then the city would not hold the fee for itself or its inhabitants only, but for the public generally, including its own inhabitants ; the power of the legislature to authorize the use of the same by a railroad, without the consent of the city, and without compensation to it, is undeniable. The reason is plain. The streets are not the private property of the corporation. It owns no property in them, in the sense or of a character to be protected by the constitutional limitation on the right of eminent domain. It results as a consequence of the unlimited power of the legislature, in the absence of special restrictions, ■ not only over the existence of the municipality, but, while it allows it to exist, over its streets and public places held for the use and benefit of the general public. By analogy, these principles of the law are alike applicable to other property held by the city for the general public, such as levees or public landings. Unless there is something in the particular facts and circumstances to take such property, devoted to public use, out of these genei’al principles,it will be governed and controlled by them.
In the case now in hand, the levee was unconditionally dedicated to the public use as a public landing. When this was done, there remained in the dedicator the legal title, to which, so to speak, was attached and vested in him every right of
Are the things authorized to be done under the act clearly inconsistent with the use of the levee as a public landing ? As we have construed the act, it only in effect purports to grant to the defendant—to adopt the language of Mr. Justice Deady —“ The right to improve and use the premises as a public landing, with the added facility of direct and immediate railway connection therewith.” Now, will not the construction of wharves and warehouses, at which vessels may load and discharge cargo, be rather an improvement of its use as a levee or public landing, than its subversion as such ? Are not these things, in fact, necessary and essential to afford proper facilities to the public, and make the levee of any value and benefit as a public landing? Are they not in accord with the general purposes for which the property was dedicated ? Do they not, in fact, contribute to give it more identity as a public landing, and render the use it was dedicated to serve more beneficial to the general public?
Nor does the construction of a depot thereat, in connection with the railway, subvert or destroy its use as a public landing, nor is it inconsistent therewith; but, within proper limitations, it may tend to improve and make the use of the levee, as such, more beneficial. “A landing is a place on a river, or other navigable water, for lading and unlading goods, or for the reception and delivery of passengers.” (State v. Randall, 1 Strobt. 111.) “ It is either the bank or the wharf, to or from which persons or things may go from or to some vessel in the contiguous waters.” (State v. Graham, 15 Rich. 310. See also, Coffin v. City of Portland, supra.) Now, are not all these things, and may they not be so constructed—wharf, warehouse and depot—as proper incidents to a public landing, which improve and faciliate its use, extend its benefits to a larger public, and make it more suitable for the accommodation of passengers, and the stowing and shipping of general freight ? .The legislature, as the representative of the general public,has