107 P. 3 | Or. | 1910
Lead Opinion
delivered the opinion qf the court.
1. The first objection to the constitutionality of the act in question is predicated upon the ground that it is in violation of Section 23, Article IV, of the constitution of this State. Said section is as follows: “The legislative assembly shall not pass special or local laws in any of the
In determining this question, we will first consider the intent with which this provision was placed in our constitution and the mischief which it was designed to remedy or prevent. "Under the provisional government as early as June 22, 1844, Oregon had a system of laying out and locating highways, probably taken from the Iowa Code, and in 1847 an act was passed by the provisional legislature providing for a complete system of road work with supervisors who reported to the county commissioners, and which, in its general scope, was not essentially different from methods now in vogue. But at this early date, the provisional legislature seems habitually to have created territorial roads and appointed commissioners to locate and lay them out. Thus, we find an act passed December 12, 1846, appointing commissioners to locate and lay out a territorial road from the “town of Portland on the Willamette River” to the mouth of Mary’s River in Polk County. Another, to authorize the laying out of a territorial road from Oregon City to the “Calipooyah” River. Another, from Oxford on the Willamette to John McCoy’s farm on Muddy Creek in Linn County. Another from “Linn City to Zed Martis.” Another, to improve and open the road “known as the southern route leading from the United States to Oregon.” The employees on this enterprise were prudently required to furnish their own tools, “arms and ammunition.” Another act provided for a public road from “Multnomah City” to the mouth of Mary’s River. Still another, authorized the location of a territorial road from “Tuality Plains to
2. For several years after the adoption of the constitution, the State Legislature took little or no part in the construction of roads from one part of the State to
Applying this rule to the act in question, if the proposed road is a State road, it permits the county courts of Jackson and Klamath to lay a burden upon the taxpayers of those counties not shared equally by the taxpayers of the other parts of the State. If, on.the other hand, it is to be regarded as a county road in each of the counties through which it passes, it imposes taxes upon the people of the rest of the State for the construction of county
3. The title of the act in that case is “An act to appropriate ten thousand dollars to aid Tillamook County in the construction of a wagon road from the Nehalem River, in the north end of said county, to the Fuqua toll road, in the south end of the county,” etc. Acts 1889, p. 169. The act designated certain persons as commissioners to locate the road, and provided that they might employ a superintendent to construct the same. The
The same question was raised on the trial that is raised here, namely, that the act was local and therefore in violation of Article IV, Section 23, subd. 7, of the Constitution. That able and learned jurist, Judge W. W. Thayer, appeared for the plaintiff Maxwell, and contended earnestly that there was no material difference between the case then at bar and that of Allen v. Hirsch, 8 Or. 412. We quote the following from his brief on file in this court:
“The respondent’s counsel in the court below contended that the act was such a violation of the clause of the constitution of the State which provides, that: ‘The legislative assembly shall not pass special or local laws: 7. For laying, opening, and working on highways, and for the selection and appointment of supervisors’—as to render it void in toto; and so the court held, although its decision was in direct conflict with the decision of this court in Allen v. Hirsch, 8 Or. 412. There is no material difference in the two cases. In Allen v. Hirsch the legislature created a commission to survey, lay out, and construct a public road from the Sandy River in Multnomah County to Dalles City in Wasco County, appropriated $50,000 for its construction, and prescribed the duties of the commissioners in conducting the work. In the case at bar the legislature appropriated the sum
The court held this act to be both special and local; special, because it was limited to a particular county for a special purpose, and local, because it operated only on one county and had no application outside of it.
Now, the only difference that can be suggested between the case last referred to and the one at bar is that the present act operates on two counties instead of one. But we conceive that the act is still local in characer, notwithstanding this difference. “If a local act is one operating within a limited territory, or a special locality— ‘one operatng upon persons or property in a single county or two or three counties would be local’—the act in question must be obnoxious to that objection.” Maxwell v. Tillamook County, pages 503, 504, of 20 Or. (26 Pac.
4. But it is urged that the road proposed in the act, now under consideration, is a State road, intended, when completed, to extend entirely across the State and to unite remote sections thereof. It is true that the title so indicates, but, by the body of the act, no provision is made for the laying out, opening, or working of any road except through the counties of Jackson and Klamath, or in case both of these counties do not see fit to accept the overtures of the State and appropriate the required $50,000, then through Jackson County alone. And it is provided that such road shall be a county road, not a State road. Section 4 of the act is as follows:
“That such money shall be expended only upon a county road legally established.”
The local character of the act is further indicated by the provision that as soon as Jackson County has made its appropriation of $50,000 to aid in the construction of a road from Medford, Jackson County, to a point on the west line of the Cascade Forest Reserve, on the route to Crater Lake, the Governor shall appoint a commission and thereupon twenty-five per cent of the sum appropriated shall become available for use in Jackson County and
5. These provisions make the act a local act for the “laying out, opening, and working of highways,” as these terms are used in the constitution, and bring this case fully within the reasoning of the court in Maxwell v. Tillamook County, 20 Or. 495 (26 Pac. 803). It is urged that the construction of the road, here proposed, would be of great public utility, which, in a sense, is probably true. While the route indicated in the act does not suggest that the road would be of great commercial importance, and the Government publication submitted in evidence suggests that, owing to the altitude, a portion of the county traversed by it would be obstructed by heavy snowfalls
Dissenting Opinion
delivered the following dissenting opinion:
1. I am of the opinion that the decree of the trial court should be reversed, and one entered dismissing the suit; and the importance of the question presented, and far-reaching effect of the conclusion announced by the majority, demands that I state the reasons impelling me to differ from my associates.
The only point properly presented by the pleadings, and entitled to serious attention, is the one considered in the opinion, as to whether the act in question contravenes Section 23, Article IV, of our State Constitution. I will therefore direct my attention solely to that inquiry, and in the determination thereof the well-settled rules, by which the constitutionality of all legislation is ascertained, will be kept in mind. It is a well-known, historical fact that, by the leading statesmen, lawyers, and jurists of the country, it was long deemed extremely doubtful whether it was1 within the province of the courts to pass upon the constitutionality of legislative enactments, or whether that was a legislative function only, but, after years of heated contests in both departments upon the subject, the point was finally, and I think wisely, held to be judicial. However, as a safeguard from judicial encroachment upon the legislative department, it became the universal and settled rule that no act shall be declared void by the courts, or come within the inhibition of any organic law of the land, unless its conflict therewith is so clearly pointed out as to be free from all rational doubt. See Cline v. Greenwood, 10 Or. 230, 241; Simon v. Northup, 27 Or. 487, 495 (40 Pac. 560: 30 L. R. A. 171).
The general rule to be deduced from all the authorities is that a “Constitution must not be interpreted on narrow or technical principles, but liberally and on broad, general lines, in order that it may accomplish the objects intended by it to carry out the principles of government,” and the
I am aware that in the Allen v. Hirsch case it is noted that, under the terms of the acts, moneys- appropriated were to come out of the “swamp land” and “five per centum” funds; the latter resulting from the proceeds of the sale of public lands, paid to the State by the Government for the express purpose of public road construction and internal improvements, and inapplicable to any other purpose. It requires but a casual reading of the opinion, however, to see that the decision is- not predicated upon that point, nor is it so claimed. The observation, in fact, served no purpose, unless to remind the taxpayers that the conclusion reached would not directly increase their taxes. Attention is called to this expression in two or three subsequent opinions, but nowhere do we find it held that the conclusion reached in that case was based upon that point. But, whether the moneys appropriated were diverted from the particular funds men
“The road involved in Allen v. Hirsch was to all intents and purposes a State road connecting remote portions of the State together, and the act was for the construction of this road by the State as the title indicates. It connected remote portions of the State, as above .stated, and was a matter of general concern. This is the ground upon which the court based its decision in that case upholding the act. * * The difference between the acts involved in Allen v. Hirsch and the one in question here, is so marked as to make the claim of counsel, that they are alike or even similar, appear ridiculous.” See Briefs, vol. 1, p. 373.
This contention of counsel was sustained by the court and the cause determined on that assumption. I am unable to discover that the principles, as announced in Allen v. Hirsch, have been shaken by any subsequent declarations of this court, and, until overruled, must necessarily stand as the law on the subject under "discussion.
The only question, then, with which we are confronted, is whether the act under consideration is local, special, or general. The court, in the case last named, discusses at length what constitutes local or special laws, as did also the court in the Tillamook case; in each instance announcing, in effect, the same test by which local, special, and acts of general import may be ascertained. In the latter case the views announced on the subject in Allen
In the Tillamook case Mr. Justice Lord goes extensively into the difference between the act there considered, and that upheld by this court in Allen v. Hirsch, but limited the views announced to the particular acts there considered; at the same time adopting and applying, in effect, the definitions of local and special acts invoked in the former case. It is also made clear that the distinction between the cases is, that, in the Tillamook case, the road was a purely local county road, extending between two given points in one county, and recognized as affecting but one particular locality, without the advantage of being a road “in which the community at large have an interest”; in reference to which it is stated, in substance, that its advantages and benefits were confined almost exclusively to the inhabitants living along its route, operating only within its boundaries, and not, as in Allen v. Hirsch, connecting different divisions of the State; and in no manner a public improvement, extending its effects
I am at a loss to understand how a law may be deemed special or local in character, which does not confer a particular benefit upon the inhabitants of the designated .locality or district, to the exclusion of the public at large.
“It is not necessary, in order to give a statute the attributes of a public law, that it shall be equally applicable to all parts of the State, nor that it extends in its operation to all of the inhabitants. “A statute may be general, and yet be operative only in a particular locality.’ ”
To the same effect see: State ex rel. v. Baltimore Co., 29 Md. 516; Mt. Vernon v. Evans B. Co., 204 Ill. 32 (68 N. E. 208). The constitution does not define a local or special law, leaving that duty to the courts and lawmaking department of the State; but, as disclosed by the authorities, cited with approval by the court in Allen v. Hirsch, the terms “local” and “special” acts, at the time of the adoption of the constitution were, and still are, well understood, and there is no justification for looking beyond the common law, either for. the construction or application of these terms, as used in our fundamental law. On this feature I join with the court in Allen v. Hirsch, in the adoption of the views of that eminent advocate, Mr. W. Lair Hill, who, in his brief, in support of the acts there brought in question, said:
“These acts being shown to be neither special nor local, as those terms were defined by the common law, they are not such laws as the constitutional provision was intended to prohibit, unless it appears from the constitution itself, or from its historical surroundings, that the convention by whom the constitution was framed were induced to employ the well-known terms of law in a sense different from their well-known legal meaning. No other deliberative body that ever sat in Oregon had among its members so many distinguished lawyers, as had that convention. In its roll of membership appear the names oí no less than seven who have been supreme judges, including all the judges of the Supreme Court at this time (1880). It was presided over by one whose reputa
Extrinsic evidence of the character invoked in support of the majority opinion on this feature is deemed justifiable only in extraordinary cases, of which I submit the case at bar is not one. When, therefore, we take into consideration that the words “local” and “special,” as applied at common law, had well-understood and well-settled meanings, and, further, that the jurists, who sat in the case of Allen v. Hirsch, and who had been members of the convention, and assisted in the framing and adoption of the section under consideration, did not invoke the construction adopted by the majority herein, nor find it necessary to resort to the method by them used for that purpose, but applied the rule of interpretation suggested by the eminent counsel above quoted, the reasons why we should adhere to the rule of construction there invoked, and which for 30 years has stood in our reports as a correct interpretation of the law upon the subject, become apparent. The test there applied, after considering various decisions upon the question, is as follows: “The general principle to be deduced from all the authorities seems to be this: That whenever an act of the legislature
It will be observed that the act before us does not thrust upon either of the counties, through which the contemplated road may pass, the burden of any part of the expense, but leaves it optional with them; and this expense, consisting of but one-half of the entire cost, if contributed, will be borne by the entire county or counties through which the road passes. It will not fall directly upon the property of the owners in the immediate vicinity of and along the intended route, avoiding thereby the mischief evidently designed to be remedied by the adoption of the section under consideration. The act, therefore, does not come within the class sought to be obviated by this section of our organic law.
In Maxwell v. Tillamook County, 20 Or. 495 (26 Pac. 803), the court, recognized the true criterion to be to inquire whether, under the act, the people of the State would be affected by its operation; holding that, if affected, the act became general. Measured by this rule, in conjunction with those quoted, is the act before us local or special? The general purpose of the road is declared in the title of the act, and it is elementary that courts may, as an aid in determining its intent, look to the title of an act. The title, in effect, declares the ultimate purpose of the law to be the construction of a roadway that will connect the eastern and western sections of the State; and when considered, together with the body
In the majority opinion it is said:
“If the proposed road is a State road, it permits the county courts of Jackson and Klamath to lay a burden upon the taxpayers of those counties not shared equally by the taxpayers of the other parts of the State. If, on the other hand, it is to be regarded as a county road, in each of the counties through which it passes, it imposes taxes upon the people of the rest of the State for the construction of county roads in Jackson and Klamath counties, and in either case it is local.”
As I understand it, the right of the county court of any county to appropriate money for the building of roads is not open to question, unless the question of indebtedness in excess of the constitutional limit arises, which point is not here involved. As I view it, the fallacy in this position lies in assuming that, before the State, under the constitution, has authority to make an appropriation for any road, it must be a State road, or exclusively under the State’s control; or that no appropriation whatever, under any state of facts, may be made for a county road. This is not the law, and, so far as I can ascertain, it has not heretofore been suggested by any decision of this court that it is the law. Moreover, since the road, under
I can see no merit in the contention that, if this act is upheld, citizens from other parts of the State, by the payment of taxes, must contribute towards the construction of this road, which they cannot or will not use, etc. This position not only overlooks the fact that the highway, when open, would necessarily be subject to use by the people of the entire state, as well as by the nation and the world at large, but constitutes a part of the sophistry invoked against practically every public movement'and improvement in the past, local and national, requiring an appropriation of public funds. The citizen, with large property interests and no children, has said, and, even in this enlightened age is sometimes heard to say: “Why should I be taxed to support the public school system, when I have no children to educate, while my neighbor, with less property, but many children, is the recipient of the benefits?” And those who do not care to send their sons and daughters to the State universities, normal schools, or other educational institutions, use a like argument against the maintenance of these institutions; the same contention being often made with respect to appropriations for the eleemosynary institutions—all, in these objec
2. The constitution does not define a highway, and the term must therefore be applied in its usual and common-law sense. The State, at the time of the adoption of the constitution, had, as highways, trails, roads, and navigable streams; while railways were known in the “Far East.” It must be presumed that they had in view not only the highways used for the travel then in vogue, but include those improved methods of travel likely to develop. I deem the contention that the constitution had reference only to the class of highways then in use in the territory to be without.merit. It is apparent that the terms were intended to be used in the sense recognized and applied by the law writers on the subject, among the English speaking nations. Kent’s Commentaries vol. 3, p. 432, reads:
“Every thoroughfare, which is used by the public, and is, in the language of the English books, ‘common to all the King’s subjects,’ is a highway, whether it be a carriageway, a horseway, a footway, or a navigable river. It-is, says Lord Holt, the genus of all public ways.”
On the same point Bouvier says: “The term highway is the generic name for all kinds of public ways, whether they be carriageways, bridleways, footways, bridges, turnpike roads, railroads, canals, ferries, or navigable rivers.” See, also, Railroad v. Com’rs Colfax Co., 4 Neb. 450, 456;
Can we, then, consistently hold that, under this section of our fundamental law, the State has the right to appropriate money for the purpose of connecting, on our northern boundary, two divisions of the State, requiring the taxpayers, in remote sections, to contribute to such appropriation, merely because the means of transportation is in cars upon this highway, and at the same time hold that the same range of mountains may not be pierced by another and less expensive class of highways—wagon roads—near its southern boundary, opening thereby the only practical means of communication available to the people of the two separted localities of such remote section? And shall it be held that the people along the Willamette River, through the generosity of the State appropriation for the locks at Oregon City, shall be commercially united north and south, and, at the same time, deny a like privilege to the citizens of the two extensive divisions of our State east and west of the Cascade Range near our southern borders? I think not. Such inconsistency was certainly not intended by the conceded broadminded, far-seeing, and able men, of which the convention was composed. It is not a question, as intimated, whether the southern part of the State has been, or is receiving its proportion of State appropriations, but whether one rule of construction shall be applied, when disbursements by the State shall be made for highways in the northern and northwestern part of the State, and a different rule prevail when disbursements are authorized for highways in the southern and southeastern districts. I deem the precedent established, by holding the act under consideration void, to be far-reaching and portentous in its resultant effects. It essentially means that one rule of constitutional construction may be applied to
It is argued by. counsel and intimated in the opinion, that the section in question was intended to prevent “logrolling” by the legislators. It might not be out of place to note that if this were the spirit that moved the distinguished members comprising the convention, it must be conceded that their foresight was extremely limited, else, to have been consistent, practically all legislation should have been inhibited, and primitive conditions left to prevail; for the weakness, in this respect, had then long been manifested by legislative bodies, territorial, state, and national, without reference to any particular form or class of legislation, having first made its appearance, and recognized, in the earliest history of legislation in the nation, as one of the dangers incident to a republican form of government. The question of public highway improvements, throughout the country, is assuming greater proportions than was probably ever dreamed of by the framers of the' constitution, affording another reason why our fundamental laws should be construed “on broad, general lines,” rather than the converse of that rule. This was doubtless realized, when, in 1870, $200,000 was appropriated for use upon the locks at Oregon City, and when more than that sum was, by the legislature, applied in the construction of the railway at Celilo. This
Along the line of this. contemplated road, and within the western boundary of Klamath County, is what is known as the “Crater Lake National Park.” Of this park and its general nature and advantages we may take judicial knowledge; but in determining whether the benefits to accrue to the State at large are sufficient to make the highway one of public rather than local importance, we are not left to this resource alone. We have, together with plaintiff’s admission in his pleadings, the uncontradicted testimony of witnesses, whose high standing and information on the subject are unquestioned. That testimony of this class is admissible is held in Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205 (46 Pac. 790: 34 L. R. A. 368: 60 Am. St: Rep. 818). There the point was whether the use, for which the suit to condemn was instituted, was a public use'; involving the question as to
The Crater Lake district is in the northwestern part of Klamath County, adjacent to Jackson County, within the government forest reserve, and, prior to 1885, was practically unknown; but' in 1902 was, by the government, set aside as a national park, since which time it has been known as “Crater Lake National Park.” It contains, approximately, 160,000 acres, or 250 square miles of territory, the grandeur of which is unexcelled, either on this continent or elsewhere, and, when properly opened by traversable highways, promises to rank, through its wondrous scenic beauty and unparalleled geological formation, as one of the most valuable resources of our State. This great natural wonder may be more fully understood and appreciated after quoting from a work on the subject, written a few years ago by Mr. Will G. Steel, one of the principal witnesses herein; his descrip-, tion reads:
“Professor Joseph Le Conte was a great admirer of Yellowstone and Yosemite. Many years ago, when standing together on the rim of the lake, I asked him how
Mr. Steel appears eminently qualified to give evidence bearing upon the issues presented, and his testimony before the trial court so fully, clearly, and specifically points out the facts, from which the advantages accruing, and to inure to the State at large, must necessarily be deduced, that it is fitting to quote extensively therefrom. In effect he said:
“I have lived in the State of Oregon for thirty-seven years, and am a resident and taxpayer at this time. I am well acquainted with the geographical conditions of Jackson and Klamath counties. I have made the geographical conditions of these two counties, including Crater Lake, a study for twenty-four years. The Cascade Range of mountains is a rugged chain of mountains, separating the entire State into two geographical divisions, known as Eastern and Western Oregon. Crater Lake is situated in the northwest portion of Klamath County. The lake itself is all in Klamath County, but the national park touches a small portion of Jackson County. Crater Lake was, originally, one of the greatest mountains on the American continent. It became a volcano, and blew a great deal of fine stuff over the country; subsequently, instead of blowing out the mountain, it telescoped—that is, the mountain disappeared, leaving a caldron a little over five miles in diameter and four thousand feet deep; possibly it was deeper in the beginning; since then it has
Judge J. H. Scott testifies to his long connection with the good roads movement, and, in effect, concludes:
“If a road of easy access were constructed from Rogue River Valley to the Klamath Valley, by way of Crater Lake, it would be a great benefactor of the State of Oregon. It would connect the Willamette Valley to the southern parts of the State with that of the great territory lying east of the Cascades, and be for the general welfare of the entire State in many respects.”
Mr. A. C. Jackson testified that he was the advertising agent of the Oregon Railroad & Navigation and Southern Pacific lines in Oregon, having held this and similar positions for eighteen years; that he had noted the scenic attractions and the effect that they would have upon the community at large; noticed the way Crater Lake is considered by the public, and basing his opinion upon his observation in that line in this and other parts of the world, in his belief the benefits to be derived from the contemplated highway would be enjoyed mostly by the State at large; that he and his company constantly receive inquiries from “all parts of the compass, everywhere,” as to the easiest and best manner of reaching this park.
Much other testimony of similar import was offered and admitted without objection, in response to which no
In view of the conceded facts, it would seem the public importance as compared to the local benefits, could hardly admit of doubt. One of the great assets of any commonwealth is its scenery; its freaks of nature, whether in. its rugged mountains or its valleys; its lakes, mammoth caves, hot springs, as in Arkansas, or geysers, such as appear in Yellowstone Park, etc. Upon assets of this character many of the railway lines, throughout the various states in which they operate, such as those along the Columbia, the Denver & Rio Grande, and other so-called “scenic” railways, rely for much of their income; and the states in which the natural wonders may be situated proportionately share in the benefits accruing therefrom. As appears from Col. C. E. S. Wood’s evidence:
“Both as a highway to a world-famous point of scenic beauty, and as a highway, making a comfortable and easy artery of communication between the eastern and western portions of the State, it will be of general and public benefit to the State of Oregon, much in the same way as the famous highways of Switzerland, opening up the scenic beauties of Switzerland, are profitable to the whole country, and as the national highway, penetrating the Alleghany Mountains, was profitable to the United States, and especially is this true because of the isolation of Eastern Oregon and the absence of all railroad development.”
Considering then, the combined advantages to accrue to the State, by uniting and bringing in touch with each other, the two great divisions of the State, as shown, together with the opening to the people of the entire State, by a convenient road, what promises to be one among the great public parks and natural wonders of the continent, can it be legally held that the act in question is void? Holding unconstitutional this act violates, I think,, both the letter and spirit of the constitution, and especially