Simon v. Northup, 40 P. 560

Opinion by

Mr. Chief Justice Bean.

*4951. It is stoutly contended that the act in question is unconstitutional, for the several reasons hereinafter noticed; and, while we are satisfied that the contention is well founded in some respects, and are conscious that in others the validity of the act is not free from doubt, yet we cannot declare it wholly void because some of its provisions are so and others are involved in doubt. The courts will never exercise the extraordinary power of declaring an act of the legislature unconstitutional unless there is a plain, palpable, and clear conflict between the statute and the constitution, which, in our opinion, does not exist in this case: King v. City of Portland, 2 Or. 152; Cook v. Port of Portland, 20 Or. 580 (18 L. R. A. 533, 27 Pac. 263).

2. In the first place, the entire act is challenged upon the ground that it is incompetent for the legislature to compel the City of Portland to incur a debt for the construction of public bridges within its boundaries, and much was said at the argument about the inexpediency and injustice óf such legislation, and the effect previous legislation of this character has already had upon the financial affairs of the city. The question is one of power alone, and, however unjust, inexpedient, or even oppressive such legislation may be, the courts are powerless to declare it invalid if it is within the legitimate exercise of legislative powers. A municipal corporation is but the creature of the legislature, and in its governmental or public capacity is one of the instruments or agents of the state for governmental purposes, possessing certain prescribed political and municipal powers, to be exercised by it on behalf of the general public rather than for itself; and over it as such agent the authority of the legislature is supreme, and without limitation or restriction, other than such as may be found in the constitution. There is a line of authorities holding, and perhaps prop*496erly, that a municipal corporation cannot be burdened with a debt without its consent for a matter of local as distinguished from state purposes: Board of Park Commissioners v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202); People ex rel. v. Mayor of Chicago, 51 Ill. 17 (21 Am. Rep. 677); People ex rel. v. Batchelor, 53 N. Y. 128 (13 Am. Rep. 480). But it seems to be substantially agreed that when the debt or liability is to be incurred in the discharge of some duty which is imposed upon the municipality exclusively for public purposes, and in the performance of which the general public, as distinguished from the inhabitants of the particular municipality, have an interest, it is within the power of the legislature to compel it to perform such duty and incur a debt therefor. That the making and establishment of public highways and bridges, and the assessment and collection of taxes, are within the legitimate legislative powers, and are among the ordinary subjects of legislation, cannot be questioned. Nor do we think it can be successfully denied that the bridges and ferries referred to in the act under consideration will, when acquired, belong to the City of Portland in its public or governmental capacity; and that in the acquisition of them it is but discharging a public or state duty which it is entirely proper for the legislature to impose upon it, and therefore, if there is no limitation in the constitution, it is no objection to the validity of an act for that purpose that a debt or liability against the corporation is to be created without its consent: Cooley on Taxation, 682; Dillon on Municipal Corporations, § 74; Winters v. George, 21 Or. 251 (27 Pac. 1041); State v. George, 22 Or. 142 (16 L. R. A. 737, 29 Pac. 356, 29 Am. St. Rep. 586); City of Philadelphia v. Field, 58 Pa. St. 320; United German Bank v. Katz, 47 Md. 145; Davis v. New York Central Railroad Company, 47 N. Y. 400. That the construction of bridges and highways in a city, and the in*497curring of a debt therefor, should ordinarily be left to the judgment and discretion of the proper municipal authorities is manifestly just and in harmony with the right of local self-government and the theory of our political institutions, but the policy of such legislation is not for the courts. When the power is conceded, the courts cannot inquire into the expediency or manner of its exercise, or the motives or reasons prompting the’ particular act. We conclude, therefore, that the act in question is not invalid because it compels the City of Portland to incur a debt without its consent for the acquisition of public bridges and ferries.

3. It is next contended that the act embraces more than one subject, and therefore is in violation of article IV, section 20 of the state constitution, which declares that “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. ” The design of this provision of the constitution was to prevent matters wholly foreign, and having no relation to each other, from being embraced in one bill, and “this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title”: People v. Mahaney, 13 Mich. 495. The subject or general object of the law in question, as expressed in its title, is the acquisition, control, and management of certain specified bridges and ferries across the Willamette River at Portland, and the details by which it is to be accomplished are matters properly connected therewith, and do not constitute more than one subject within the meaning of the constitution. Whether the body of the act contained any provisions which are void because not properly within the subject expressed in the title, will be considered later.

4. It is also contended that the act is in conflict with article IV, section 23, subdivision 7 of the state constitu*498tion, which forbids the passage by the legislature of special or local laws “for laying, opening, and working on highways, and for the election or appointment of supervisors. ” It may be conceded that the act in question is special and local, but still we do not think it comes within the provision of the constitution referred to. This provision was probably designed to require the legislature to provide by general law for the laying, opening, and working of the ordinary highways and public roads of the state, and to prevent any interference with the general highway system by special or local acts. But if it is applicable to public highways within a municipal corporation the act under review clearly does not come within its provisions. It does not in any sense provide for the laying or opening of a highway. The bridges and ferries referred to therein were, at the time of the passage of the act, and for a long time before had been, open and in use by the public as highways. Their character as such was already established. The bridges and ferries purchased, acquired, and constructed by the commission appointed under the act of eighteen hundred and ninety-one were then free and open highways. And while it is true that the public easement was subject to the payment of tolls for passage over the bridges and ferry to be acquired under its provisions, they were nevertheless public highways, and the rights of the owners were to be extinguished before their supervision and control was to be transferred to the county court. By the transfer to the county contemplated by this act these bridges and ferries’ were to continue as public highways, but their character as such is in no way derived from the act itself, and therefore it does not provide for the laying or opening of a highway, and the case of Maxwell v. Tillamook County, 20 Or. 495, (26 Pac. 803,) which declares an act which did so provide invalid, is not in point. The effect *499of the act of eighteen hundred and ninety-five is simply to transfer the management, control, and maintenance of certain existing public highways from one governmental agency, constituted and appointed by the legislature, to another designated by the same authority, but it does not undertake to lay out or open or provide for the laying or opening of such highways.

Nor do we think the act in question is for the working of highways within the meaning of the provision of the constitution under consideration. This provision, so far as the working of highways is concerned, was intended to apply to such roads and highways as are a part of the general highway system of the state, and can be maintained and kept in repair under a general law, and not to the public bridges and ferries of a city, which are exempt from the operation of such laws, and which, in the nature of things, cannot be so kept up and maintained: Elliott on Roads and Streets, 329. Indeed, it was said by Judge McArthur, in East Portland v. Multnomah County, 6 Or. 65, that this provision of the constitution only applies and is limited to the roads and highways traversing the rural districts, and not to the streets and alleys of a city. And in City of Lafayette v. Jenners, 10 Ind. 79, it is said, by way of argument, that a street is not a highway in any sense within the meaning of a constitutional provision like ours, and it is not apparent that this construction would fail to accomplish the purposes intended by the framers of the constitution. But whether this is so in the matter of opening and laying of highways it is unnecessary to consider “at this time, for no such question is presented by this record. But it does not seem to us that the legislature is inhibited by this provision of the constitution from transferring, by special or local law, the supervision and control of an existing public bridge or ferry constructed by and within the boundaries of a *500municipal corporation from such corporation to a county, and requiring the latter to maintain and keep it in repair. The constitution of eighteen hundred and seventy-four of the State of New York contains a provision forbidding the passage by the legislature of any private or local bill “laying out, opening, altering, working, or discontinuing i’oads, highways, or alleys,” and this provision was invoked to defeat a private and local act of the legislature of that state which authorized the conveyance by a certain turnpike company of a portion of its road to park commissioners, and which made provision for the improvement and ornamentation of the road authorized to be conveyed, and for the payment of the costs of such improvement, and for the keeping of the same in repair; but the court of appeals held that the constitutional provision was only designed to prevent any interference with the general highway system of the state, or with keeping the ordinary highways and public roads in re. pair under that system, and the supervision of the officers designated, and in the use of the means and the labor provided by law, and that the act in question did not in any of its provisions provide for the opening or working of a highway in the sense in which that term is used in the constitution, although the road referred to belonged at the time to a private corporation, who was charging and collecting tolls thereon: People v. Banks, 67 N. Y. 568. This case, in many of its features, is similar in principle to the case at bar, and it seems to us the doctrine announced there is controlling here.

5. It is next objected that the act is violative of article IV, section 23, subdivision 10 of the state constitution, which prohibits the passage by the legislature of special or local laws “for the assessment and collection of taxes for state, county, township, or road purposes.” The evident purpose of this provision was to prohibit the legis*501lature from passing a special or local law providing a mode or manner for the assessment and collection of taxes in the enumerated cases which would interfere with or contravene the method of assessing and collecting taxes as provided by the general law, but not in our opinion to inhibit the legislature from authorizing or requiring a county to levy and collect a tax at the same time and in the same manner as other taxes are levied and collected for specified public purposes, and that is all the law in question required. It does not purport to provide a special manner for the assessment and collection of taxes, but only requires the County of Multnomah to include in its estimate for county purposes a sum sufficient to meet certain expenses, which, by the act in question, the county is required to pay, and a tax sufficient to meet these expenses is to be assessed and collected as other taxes are assessed and collected, and hence we do not think it is a special and local law for the assessment and collection of taxes, within the meaning of the constitution.

6. It is also contended that the legislature cannot take from the City of Portland the supervision, management, and control of the public bridges and ferries belonging to it, and transfer them to the County of Multnomah. In the first place, these bridges and ferries are not now and never have been under the supervision of the City of Portland, but are managed and controlled by a committee or commission appointed for that purpose by the legislature, and this act only purports to transfer their management and control from such committee to another state or governmental agent. But if it were otherwise, the law is too well settled to be questioned that the public highways of a city are not the private property of the municipality, but are for the use of the general public, and that, as the legislature is the repre*502sentative of the public at large, it has, in the absence of any constitutional restriction, paramount authority over such ways, and may grant the use or supervision and control thereof to some other governmental agency, so long as they are not diverted to some use substantially different from that for which they were originally intended: 2 Dillon on Municipal Corporations, 656, and authorities there cited; Cooley on Constitutional Limitations (5th ed.), 335, and note. In accordance with this principle it was held in Portland and Willamette Valley Railroad Company v. Portland, 14 Or. 188, (12 Pac. 265,) that an act of the legislature granting the use of the public levee of the City of Portland to a railway company for railway purposes was a valid exercise of legislative powers. So, also, it was held in People v. Walsh, 96 Ill. 232, (36 Am. Rep. 135,) that it was competent for the legislature to transfer the control of the streets of a city to park commissioners, to be by them controlled for boulevard and driveway purposes. A city occupies, as it were, a dual relation to the state, — the one governmental or political, and the other proprietary or private. In its governmental or political capacity it is nothing more than a mere governmental agent, subject to the absolute control of the legislature, except as restricted by the constitution, and such property and easements as it may have in public streets and ways is held by it in such capacity, and at the will of the legislature. But, on the other hand, such property as it may hold or acquire in its proprietary or private capacity is as much protected by the constitution as the property of the private citizen, and of which it cannot be deprived except for public purposes, and then only upon just compensation. To the latter effect are the authorities cited and relied upon by the defendant, and they are therefore not in point in this discussion.

7. It is next contended that it is not within the *503power of the legislature to compel the property of Multnomah County to be taxed for the payment of a debt of the City of Portland, incurred in the purchase and construction of the Madison and Burnside-street bridges and Albina ferry, and to be incurred under the act in question, before the county is required to receive or accept the Morrison-street bridge, Stark-street ferry, or the upper deck of the steel bridge. On this question there seems to be but little authority, but we think it clear upon principle that such legislation cannot be sustained. As Parker, C. J., says: “It certainly must be admitted that, by the principles of every free government, and of our constitution in particular, it is not in the power of the legislature to create a debt from’ one person to another, or from one corporation to another, without the consent, express or implied, of the party to be charged”: Hampshire v. Franklin, 16 Mass. 83. A question involving the authority of the legislature to compel a town to be taxed for the payment of debts previously contracted for the purpose of acquiring title to and constructing a public park, partly within the boundaries of the town sought to be charged, was before the court of appeals of New York in the case entitled In re Assessment of Lands in the Town of Flatbush, 60 N. Y. 398, and in holding such legislation invalid the court, speaking through Mr. Justice Miller, said: “Had the respondents been originally assessed for benefits conferred under a proper law, it might then be said that the assessment was for public use and not for a subsisting debt, and such an assessment could have been enforced. But such is not the case; and those assessed are required, by the proceedings of the commissioners, to aid in the discharge of a debt previously contracted, and to contribute money which is to be paid into a sinking fund, to be provided for the payment of bonds, already issued, for the location and improvement of the *504park. There is no principle, that I am aware of, which sanctions the doctrine that it is within the taxing power of the legislature to compel one town, city, or locality to contribute to the payment of the debts of another. The government has no such authority, and this case is entirely without a precedent. If such assessments were authorized, they might not be limited to adjoining towns, cities, or villages, but applied to those located at great distances from each other. Such legislation would be unjust, mischievous, and oppressive, and cannot be tolerated.”

It is competent for the legislature, in the exercise of its plenary powers over public highways of the City of Portland, to transfer the management and control of the bridges and ferries in question from the commission appointed by it to the county, and to determine and provide the mode in which the burden of maintaining and keeping them in repair shall be borne in the future; (Scituate v. Weymouth, 108 Mass. 128,) but it is not within its power to summarily declare that a debt of the City of Portland shall be paid by the county, although in fact incurred for the construction of such bridges and ferries. Nor do we think the fact that the City of Portland is within the County of Multnomah, and perhaps contains a large proportion of the inhabitants and taxable property of the county, in any way affects the question. The two corporations are separate and distinct entities, and, so far as we can see, it is no more competent for the legislature to compel the county to pay the debts of the city than the city to pay those of the county. It would indeed be, as Miller, J., says, “without a precedent,” to compel every property owner in the county outside of the city to suffer a lien upon his property for the next thirty years for its proportionate share of the interest and principle due and to become due on a debt of the city already contracted *505and outstanding. If such, legislation can be sustained there is nothing to prevent the legislature from compelling property in the county to be taxed for any or all debts of the city incurred for public or governmental purposes. And it would hardly be contended that legislation so manifestly unjust and mischievous could be sustained. The legislature may perhaps compel a municipal corporation to recognize and pay a debt, although not binding on it in a strict legal sense, when there is an equitable or moral obligation on the corporation to pay it: Dillon on Municipal Corporations, § 75. But no such authority exists when there is neither a legal, moral, nor equitable obligation resting on the corporation sought to be charged, as in this case, where it is proposed to summarily transfer the debt from one corporation to another.

8. It is also claimed that so much of the act of eighteen hundred and ninety-live as requires the county to maintain a ferry at Sellwood, is invalid because not within the subject as expressed in the title of the act. The title of the act, by its terms, is limited to the acquisition and control of certain specified bridges and a particular ferry to be acquired under its provisions, and to the bridges and ferries in the possession and under the control of the present bridge commission, and we do not think the provision requiring the county to maintain a ferry at Sellwood can be said to be within the subject of the act as so limited, or properly connected therewith, and hence such provision must be declared invalid.

9. And, lastly, the respondents insist that so much of the act as requires Multnomah County to levy a tax for the maintenance and repair of the bridges and ferries specified is void because not within the subject of the act as set forth in its title. It is clearly stated in the title that one of the purposes of the act is to require the County Court of Multnomah County “to assume the man *506agement, control, and supervision of such bridges and ferries”; and this is certainly broad enough to sustain a provision requiring the county to provide the funds with which to pay the expenses of such management, control, and supervision, and such provision is germane to and properly connected with the subject expressed in the title and valid. Having examined all the objections urged, we conclude that the act under consideration is constitutional and valid, except in so far as it requires the County of Multnomah to levy a tax and pay the interest and principal on the bridge bonds of the City of Portland and to maintain a ferry at Sellwood.

Modified.

Case Details

Case Name: Simon v. Northup

Court Name: Oregon Supreme Court

Date Published: Jun 3, 1895

Citations: 40 P. 560; 27 Or. 487; 30 L.R.A. 171; 1895 Ore. LEXIS 68

Court Abbreviation: Or.