142 P. 832 | Or. | 1914
delivered the opinion of the court.
An act of the legislative assembly, filed in the office of the Secretary of State, February 25, 1913, declares generally that when, under the provisions of any law of Oregon a bridge is constructed across the boundary of this state into an adjoining state, with public funds, the Governor of Oregon shall be and become a member and ex officio chairman of any official body designated for that purpose, to construct, maintain and operate such bridge and to fix the tolls thereon, but that none of the funds thus to be provided shall be used in excess of the just proportion of such construction and operation: Gen. Laws Or. 1913, c. 145. Three days after this act was filed another enactment was also filed in the same manner (Gen. Laws Or. 1913, c. 349), from which latter statute excerpts will be taken as follows:
“Bridges over rivers and bodies of water forming-interstate boundaries are hereby declared and defined to be permanent roads and shall include approaches and viaducts leading- thereto”: Section 1.
“Counties are hereby authorized to borrow money for the purpose of constructing interstate bridges and to issue bonds to evidence such indebtedness”: Section 2.
“Whenever any county in this state shall provide for the issuance of bonds for the construction of any bridge, bridge approach or viaduct to be constructed to and (or) over the boundary line of the state, or to, and (or) over any stream, river or body of water constituting such boundary line, such county shall be en
“Such county, after making provision for such boundary bridge or viaduct, shall prior to the 1st day of January each year following the authorization of such bond issue or issues, notify the board of state tax commissioners of such bond issue, and shall state the amount of bonds, the number and value of the bonds sold thereunder and the amount necessary to meet the annual interest on such bonds. The said board of state tax commissioners shall thereupon allow such deduction as will cover such accruing interest. In consideration of such allowance and deduction for the payment of said annual interest upon said bonds as herein provided, the title to the said bridge, viaduct or roadway, and the full control of the same, shall upon completion of said boundary or interstate bridge, viaduct or roadway be, and become vested in the State of Oregon; such power of control to be exercised on behalf of the state by the Railroad Commission of Oregon”: Section 4.
“Said bonds shall bear interest at a rate not to exceed 6 per cent per annum, payable on the 1st days of January and July, and shall run not to exceed 30 years from the date of the respective issuance thereof. They shall have interest coupons attached to them, one coupon for each interest payment that will be made”: Section 16.
“The county court shall, at the time of making the annual tax levy upon the previous year’s assessment, levy a tax on all the taxable property in the county, for the purpose of paying, and sufficient to pay the
Considering the objections to Chapter 349, supra, and the proceedings employed in pursuance of the provisions of the enactment in the order stated in the complaint, it is insisted that the issuance of bonds in the sum proposed will create a liability against and impose a debt upon Multnomah County in excess of $5,000, and hence the statute in question is violative of Article XI, Section 10 of the Constitution of Oregon, as amended November 5, 1912. The clause of the organic act referred to reads:
_ “No counties shall create any liabilities which shall singly or in the aggregate with previous debts or liabilities exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion or to build and maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of those voting on the question, and shall not either singly or in the aggregate with previous debts and liabilities incurred for that purpose exceed two per cent of the assessed valuation of all the property in the county”: Gen. Laws Or. 1913, p. 9.
The complaint herein not having stated that the proposed issue of $1,250,000 of bonds of Multnomah County will exceed the prescribed rate of the assessed valuation of all the taxable property therein, it may reasonably be inferred that such securities, if put forth, will not transcend the specified limit. The state tax commission is required annually to equalize the assessed valuation of the several counties in Oregon; to combine the result thereof in convenient form, and deliver a copy thereof to the Secretary of State, who must cause the same to be printed and copies thereof transmitted to each county assessor and clerk: Section 3641, L. O. L., as amended; Gen. Laws Or. 1913,
“The meaning of the word ‘permanent,’ according to the lexicographers, is continuing in the same state, or without change that destroys form or character, remaining unaltered or unremoved, abiding, durable, fixed, lasting, continuing; as a permanent impression”: 6 Words and Phrases, 5310.
The definition thus given is fully supported by the cases there cited: Ten Eyck v. Rector, etc., 65 Hun, 194, 198 (20 N. Y. Supp. 157); Follmer v. Nuckolls County, 6 Neb. 204, 212; Lowell v. French, 6 Cush. (Mass.) 223, 224.
“The state shall never assume the debts of any county, town, or other corporation whatever, unless such debts shall have been created to repel invasion, suppress insurrection, or defend the .state in- war.”
This provision of the fundamental law evidently relates to a class of debts in contracting which the state originally takes no part. Such conclusion seems ap
In support of the legal principle invoked, the decision rendered in Simon v. Northup, 27 Or. 487, 502 (40 Pac.
In the case at bar the public is not now supplied with a bridge which can be used by any and all persons without restriction as to the vehicle employed for that purpose, at the place where the contemplated structure is proposed to be built, and, this being so, the case cited is not controlling herein. The authority of the state to receive a proportionate share of the tolls to be obtained from the use of the bridge, as hereinafter referred to, affords a sufficient consideration for a transfer of the title to the structure when completed, and creates an equitable and moral obligation for a transfer of a part of the debt.
In support of the doctrine thus asserted, attention is called to the case of Van Cleve v. Passaic Valley Sewerage Commrs., 71 N. J. Law, 574 (60 Atl. 214, 108 Am. St. Rep. 754), where it was held that the legislature was powerless to delegate to anybody, not having governmental functions, the authority to determine the amount to be raised by taxation. The authority to tax, like an exercise of a measure of the police power, can be delegated only to a municipal or a quasi-municipal corporation. Every county in Oregon, as a political subdivision thereof, is a q«asi-municipal corporation, and as such the power to determine the
“The legislative assembly shall not lend the credit of the state nor in any manner create any debt or liabilities which shall singly or in the aggregate with previous debts or liabilities exceed the sum of fifty
The reason for invoking the provisions of Article IV, Section 23, subdivision 7, of the organic law to defeat legislative appropriations to build public roads need not now be mentioned, for they have been set forth in former opinions: Allen v. Hirsch, 8 Or. 412, 425; Sears v. Steel, State Treasurer, 55 Or. 544, 552 (107 Pac. 3). . "Whatever ground may have been assigned for the conclusion thus reached is unimportant for the subdivision of the section of the Constitution referred to as a basis therefor was impliedly repealed by the amendment of Article XI, Section 7 of the Constitution.
The qualified electors of Oregon were not deprived of their right to challenge the policy evidenced by Chapter 349 of the General Laws of Oregon of 1913, for they had an opportunity, within a stated time after the passage of that act, to invoke an exercise of the referendum power reserved to them to defeat the measure: Article IV, Section 1, Constitution of Oregon. Not having done so, it must be presumed that not 5 per cent of the legal voters of the state were opposed to such enactment. By the terms of that statute the state constantly offers to every county in Oregon, bordering on the Columbia River or on the Snake, to
Whether or not the plaintiff is a resident of and legal voter in Multnomah County, Oregon, or in any other county of the state, does not appear from the complaint herein. His taxable property in Multnomah County, however, is presumed to be specially benefited by the building of the interstate bridge, and for that reason it is just and proper that such property should be burdened with its ratable share of the amount of the bonds to be issued.
It follows that the decree should be affirmed, and it is so ordered. Aeeirmed.