Sears v. Steel

Mr. Justice McBride 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 — 552 — following enumerated cases, that is to say,— * * 7. For laying, opening and working on highways, and for the election or appointment of supervisors.” Is the act in question an act for laying, opening or working a highway, and, if so, is it a special or local act? If both these conditions concur, the act must be declared void. If either of them is lacking, it must be upheld. 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 — 553 — Clatsop Plains.” Passing over the intervening years till the session of the territorial legislature of 1850-51, we find eight special acts authorizing the laying out of territorial roads in various parts of the territory, all passed within the space of less than a month, indicating that the practice of logrolling among the fathers of the State was not confined entirely to that specie of the employment necessary in clearing up their farms. It is a well-known fact that few of these roads, which, in the aggregate, must have cost the infant community a considerable sum of money for laying out and working, were ever of any practical value or use, beyond the emoluments they furnished to the commissioners and surveyors designated to select the route. Under these circumstancés, it was no doubt thought by the framers of the constitution that it would be well to divorce the State from the business of special road building, and leave that matter to be attended to by the counties under general laws. It has not been noticed in previous decisions, but seems worthy of mention here, that after the organization of the Oregon territory, acts of the character above mentioned were not published among the general laws, but were included in a separate pamphlet or volume and entitled “Local Laws.” This practice, existing before and up to the adoption of the constitution, tends to throw light upon the meaning attached to the phrase “Local laws for the laying, opening, and working of highways” as therein used. And in. the absence of anything denoting an intent to the contrary, we may fairly assume that the framers of the constitution had in mind laws of the character then treated as local by the officers of the territory whose practice and duty it was to compile and publish the acts passed at each session of the legislature. 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 — 554 — another, except in those cases where the State was made trustee of some grant or fund provided by the general government, such as The Dalles and Canyon City Military Road and others of like character. In Allen v. Hirsch, 8 Or. 412, the majority of the court lay special stress upon the fact that the road was to be built and paid for out' of the 5 per centum of the net proceeds of the sales of public lands, which by the terms, of the act admitting Oregon into the Union were to be devoted to internal improvements, and from the proceeds of sales of swamp lands, suggesting that no general tax upon the people was involved in th„e expenditure. It was also suggested that the road then in question was designed to unite the two great sections of the State, eastern and western Oregon, and was a State improvement for the benefit of the whole State and therefore not special. The decision in that case was by a divided court, Justice Boise dissenting, and the case has not been followed in its general scope in any subsequent decision. Thus, in Manning v. Klippel, 9 Or. 373, the court, having under consideration an act which prescribed different schedules of fees for county clerks in different counties of the State, says: “The act in question is a local act because, for one reason, it enlarges the sources of revenue from the counties therein, beyond those excluded from its provisions. One county, for instance, has a source of general revenue under the act denied to another. * * It follows that the act is local, and is, consequently, void.” 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 — 555 — roads in Jackson and Klamath counties, and in either case it is local. See, also, Ellis v. Frazier, 38 Or. 468 (63 Pac. 642: 53 L. R. A. 454). In Crawford v. Linn County, 11 Or. 499 (5 Pac. 738), Mr. Chief Justice Waldo calls attention to the fact that it was not claimed in Allen v. Hirsch that the act was local, but that it was special, which is an entirely different matter. The decision of the court in Allen v. Hirsch seems to have opened the way for legislation of a similar character. In the session laws of 1885, we find an act appropriating $15,000 for the construction of a wagon road from a locality, bearing the significant' name of “Ilogem,” to Cornucopia, in Union County. The act contains ' all the necessary “whereases,” as to its public and general character, that were indicated by the court in Allen v. Hirsch, and no action seems to have been taken to prevent the expenditure of the money. The legislature of 1889, taking the cue from the decision in Allen v. Hirsch, passed nine road bills, appropriating sums varying in amounts from $8,000 to $15,000 and aggregating considerably above $100,000, seeming to fairly open up the flood gates for the unlimited increase of such appropriations, until the decision of this court in Maxwell v. Tillamook County, 20 Or. 495 (26 Pac. 803), which arrested further appropriations of this character until the last session of the legislature. Since we consider that case decisive of the one at bar, we shall briefly consider the points suggested and decided therein. 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 — 556 — commissioners were required to make a complete report to the county court of Tillamook County, whereupon said court should cause a verified statement of expenses of building the road to be filed with the Secretary of State who should thereupon draw his warrant on the State Treasurer. The last section of the act declared the great benefit that would accrue to the residents of Tillamook County and to a large number of people of the Willamette Valley by the speedy completion of the road, evidently with a view to bringing the road within the doctrine announced in Allen v. Hirsch. But these tconsiderations do not seem to have substantially moved the flinty hearts of the members of the Supreme Court, as no attention is paid to them in the opinion. 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 — 557 — of $10,000 for the construction of a wagon road from the Nehalem River to the Fuqua toll road, also from a certain point on said road to Netarts Bay, appointed commissioners for a similar purpose, required said county of Tillamook to pay certain incidental expenses attending the work, and provided that upon completion of the proposed roads and rendition of an account of the expenses thereof, etc., to the Secretary of State, he should draw his warrant upon the State Treasurer for the amount expended, to the extent of the appropriation; and if the former act was not a special or local one, within the meaning of the said provision of the constitution, then the latter was not. The act in question was in its nature more beneficial to the community at large by far than to the inhabitants in the immediate locality of. the roads; it had the effect to open, between the people of the Willamette Valley and a community Occupying a section of country which extends more than fifty miles along the seacoast, includes three bays, and is sufficient in area to make several counties, an inland communication and commerce; and if the State is to be so hampered by its constitution that it is unable by means of a reasonable and judicious appropriation, to establish between two sections of it, separated by physical causes, so beneficial, necessary, and important a connection, its inhabitants should speedily take steps to relieve themselves from such narrow and ridiculous restrictions.” 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. — 558 — 805). “If the true criterion by which to determine whether an act is local or general is to inquire whether under it the people of the State may be affected by its operation, the answer to that question as regards the present act must be that it is local and not general. It operates in the county of Tillamook only, and has no force or effect in any other part of the State. If such a law is not local, it is difficult to understand in the light of the authorities, what species of legislation would constitute :a local law.” Now, applying the foregoing doctrine to the case at bar, the act operates only in two counties, Jackson and Klamath, and has no force or effect in any other county in the State. There is no escape from the conclusion that it is a local law. 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 — 559 — $12,500 each year for three years thereafter, and upon Klamath County making a like appropriation, the same amounts become available in like manner. Each county stands alone. If Jackson County aprpopriates $50,000 and Klamath County does not, Jackson County, at the end of three years, has a county road, the beginning and terminus of which is selected by the State, and practically designated by the act itself. And there the road ends, as it begins, entirely within the confines of one county and is a county road. If Klamath County accepts the State’s offer, we have two county roads, one in each county, entirely beyond the supervision of the State. We think that the constitutional provision invoked in this case was passed to prevent the invasion of the State of the regular method of laying' out, opening, working, and supervising highways provided by general laws, and that this act violates the constitution in these particulars: First, that it requires the proposed county highways to begin at a particular point; second, that it appoints a commission to supervise not only the expenditure of the sum appropriated by the State, but that appropriated by the counties interested, and to have entire charge of the construction of the road, which is expressly declared in the act itself to be a county road. 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 — 560 — for part of the year, still there can be no doubt that the wonderful formation and the grandeur of the scehery at and in the vicinity of Crater Lake would attract to this route great numbers of tourists from every part of the country. But this cannot alter the fact that the act interferes with the plain defined by the general laws for the “laying out, opening, and working of highways,” and in that respect is special and local. Whether the State, by general laws, may enter upon the construction of public highways, to be built, owned, and managed by the State, is not before us for decision, and upon that subject we express no opinion. The fact that locks have been built at Oregon City, and a portage railway at Celilo, by moneys contributed by the State, and that these improvements are in a sense highways, is also foreign to the question here under consideration, as it is very evident, from an examination of Section 28, Article IV, of the Constitution, that the highways therein alluded to are roads. The language “special or local laws for the laying, opening, or working on highways and for the election and appointment of supervisors” sufficiently indicates that ordinary roads, not railroads nor canals, were the subjects in the minds of the framers of the constitution when this provision was inserted. Neither can we consider the fact that the southern portion of the State has, to s great extent, been overlooked by the legislature in the matter of other public improvements, and perhaps in the local of other State institutions. It is no doubt true, and perhaps unfortunate, that such has been the case, but we are called upon to interpret the law, not to remedy wrongs or omissions which are only within the province of the lawmaking power to be corrected, either by general legislation or amendment of our constitution. The decree of the circuit court is affirmed. Affirmed.