Zilesch v. Polk County

| Or. | May 29, 1923

McBRIDE, C. J.

The decision of the Circuit Court is not attacked as to the two points decided in favor of the appellants; so there remains only to consider the legality of the location of the highway in the manner that disregards the towns of Dallas and Independence as fixed monuments on the road. This, again, turns upon the construction to be given to subdivision 5 of Section 8, supra, which, if broad enough to confer the power exercised by the commission in changing the route of the highway, ends appellants’ case. Or, if the section last above quoted shall be held valid, then, irrespective of any construction which may be put upon subdivision 5 of the original act, the same result must follow. We are of the opinion that subdivision 5 is in itself sufficient to authorize the changes in location made by the commission and are further of the opinion that Chapter 361, supra, was a valid exercise of legislative power; and, these two propositions being decisive of this case, it will be unnecessary to discuss the other issues disclosed by the pleadings and briefs of counsel.

In view of' the language employed in subdivision 5 of Section 8, above quoted, the designation of certain towns, including Dallas and Independence, as being-places through which the highway should run cannot be taken as a definite, unalterable location of the road. The description was general and was intended to be so. No survey or examination of the route had been made and it was evidently on the legislative mind that upon a survey being made it might turn out that it would be cheaper or more advantageous to deviate from the route specified in favor of a better route or one which required less expense in its construction. The section quoted either expresses this intent or it is meaningless except by a forced construction of the language used.

Subdivision 2 of Section 6, supra, describes a highway, with fixed termini and intermediate local calls, namely, Hillsboro, Forest Grove, McMinnville, Dallas, Monmouth, Independence, etc. These calls are a part of the description of the route to be pursued; but, no doubt for the reason above adverted to, it was thought best not to tie the hands of the highway commission to such an extent that if upon further investigation it should be found that a better route should be disclosed the commission would be prevented from giving the people of the state the advantage of such discovery. The act describes a general or tentative route, but permits the commission to make “such local changes in the location thereof as they may deem proper.” What is a local change? Bouvier defines “local” to mean “Relating to place. A particular place.” Now, the only “places” or “particular places” mentioned in the act are these towns; therefore it follows, necessarily, that in using the words “local changes” the legislature had reference to changes from the points or places specified in the act. No other construction is logically admissible. When the commission attempted to make the change shown by its present survey it soon found itself involved in a controversy with citizens of Dallas and Independence who denied its authority to make any change in the location of the highway which would deflect it from the points mentioned in the act of 1917, and at the 1921 legislative session, Chapter 361, Laws of 1921, contained a provision quoted herein which- in terms granted the commission plenary power to make such changes in the location “as in the judgment and discretion of the highway commission will result in better alignment, more advantageous and economical highway construction, or will contribute to and afford a better or more serviceable system of state highways than is possible under the present statutory locations.”

It is difficult to ?see how language could be more explicit of an intent to leave the whole matter of location of the route to the commission than that thus used. In the opinion of the writer the section was unnecessary, but it served to clear up any doubt which might have existed as to the true intent of subdivision 5 of Section 8, supra; and, but for a dictum in Rockhill v. Benson, 97 Or. 176" court="Or." date_filed="1920-07-20" href="https://app.midpage.ai/document/rockhill-v-benson-6907105?utm_source=webapp" opinion_id="6907105">97 Or. 176 (191 Pac. 497), it is probable that this case would not have been brought. Neither the construction of subdivision 2 of Section 8, supra, nor of the language quoted from Chapter 361, supra, was involved in that case. The town of Eiddle had not been named in the highway act as a point on the Pacific Highway, but because the main highway previously laid out by the County Court ran through Eiddle it was contended that the highway commission had no power to lay out a new highway but must conform the road to the then existing highway or to such other route as the county court should establish. Chapter 361, supra, was not in existence at the time Rockhill v. Benson was decided and was evidently passed with intent to clear up any doubt that might have been created by the dictum in that case to the effect that where the bonding act designated certain points on the route of the highway such route could not be changed by the commission. Under the conditions existing and the issues presented in the Eockhill case the expressions relied upon by appellants cannot be held to be the deliberate opinion of this court or even of the learned jurist who wrote the opinion.

Is Chapter 361 of the General Laws of Oregon for 1921 violative of any provisions of the Constitution? In discussing this question we must bear in mind the often repeated doctrine that the courts should exercise the power of declaring a statute-unconstitutional with extreme caution. When a statute is on trial for unconstitutionality it should be afforded every reasonable chance for its life. This court is committed to the doctrine that before a statute can be declared unconstitutional such unconstitutionality should appear to be free from all reasonable doubt: Cline v. Greenwood, 10 Or. 230" court="Or." date_filed="1882-10-15" href="https://app.midpage.ai/document/cline-v-greenwood-6894293?utm_source=webapp" opinion_id="6894293">10 Or. 230; Crowley v. State, 11 Or. 512" court="Or." date_filed="1884-10-15" href="https://app.midpage.ai/document/crowley-v-state-6894531?utm_source=webapp" opinion_id="6894531">11 Or. 512 (6 Pac. 70); Crawford v. Linn County, 11 Or. 482" court="Or." date_filed="1884-10-15" href="https://app.midpage.ai/document/crawford-v-linn-county-6894527?utm_source=webapp" opinion_id="6894527">11 Or. 482 (5 Pac. 738); State v. Cochran, 55 Or. 157" court="Or." date_filed="1909-10-12" href="https://app.midpage.ai/document/state-v-cochran-6901387?utm_source=webapp" opinion_id="6901387">55 Or. 157, 180 (104 Pac. 419, 105 Pac. 884).

It is contended that the act is unconstitutional because it is an amendment to Chapter 423, Oregon Laws of 1917. We do not so regard it. It may be a piece of unnecessary legislation and an attempt to confer power, which we hold already existed in the commission; but it repeals nothing in the original act. The route of the highway was at least tentatively designated in the original act and, if we grant that such act located the highway even permanently through Dallas and Independence, the passage of a new and independent statute authorizing the commission to relocate it upon another route, if in the commission’s judgment such route was better for any reason, did not repeal the statute which located the route in the first instance; that statute still stood and furnished authority to the commission to build the highway to Dallas and Independence if in its judgment the highway should run through those cities. On appellants’ theory the state had in posse, if not in esse, a highway permanently located through Dallas and Independence. Having this, but being in doubt about the expediency of the location, it passed an independent act authorizing the commission to locate the highway elsewhere if it deemed such change advisable. It will be seen that the act is not directed at any particular location or city on the Pacific or other highway, but is a grant of power to make necessary changes on any state highway. The object of requiring an amended section to be set forth at full length as amended was to prevent confusion that might ensue if the legislator or citizen were required to compare all acts in order to determine what parts of the law were really in force. The intent of the act was to grant to the commission clear authority to perform an act, for the doing of which the legislature or the framers of the bill deemed such authority theretofore lacking or at least doubtful. Counsel for appellants cite Martin v. Gilliam County, 89 Or. 394" court="Or." date_filed="1918-07-09" href="https://app.midpage.ai/document/martin-v-gilliam-county-6906379?utm_source=webapp" opinion_id="6906379">89 Or. 394 (173 Pac. 938), as supporting their contention here, but there is little similarity. In that case, by Chapter 234, Laws of 1913, a budget law was enacted, applicable to counties only. In 1915 an act was passed providing that the provisions of Chapter 234 should be extended to all tax levying districts except cities having a population of over 150,000 inhabitants. It was a bald attempt to extend the provisions of a statute passed for one purpose so as to include other localities not mentioned in the original law. It was not a new and original act but an attempt to amend an old act by mere reference to the chapter number appended to it and without even referring to its title or publishing the statute at full length. In the case at bar there is no amendment, but a supposed new grant of power to change the location of a public highway. Believing this act to be within the Constitution, we hold the decree of the Circuit Court to be correct.

It is further suggested that, as the highway act was originally passed by submission of it by the legislature to the people, it cannot be amended by the legislature alone. This precise point in its present form has never been before this court, but we have always held from the case of Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498), that the legislature and the people through the initiative and referendum were co-ordinate legislative bodies and that either might independently repeal an act passed by the other, and we here so hold, no matter whether the measure is submitted by the initiative process or by an act of the legislature.

There is no suggestion of any abuse of discretion by the commission. Indeed, a reference to the map which is hereto attached would indicate that the route chosen by the commission was, as they contend, much

shorter, on a better grade and cheaper in construction than that designated in the original highway act; and, holding as we do, that they had the power to make the change indicated, the decree of the Circuit Court is affirmed. Affirmed.

Brown and McCourt, JJ., took no part in the consideration of this case.