Gates v. Public Service Commission

Mr. Justice Bean delivered the opinion of the court. 1. Section 27, subdivision 35, of the Charter of the City of Dallas, provides as follows: “To provide the city with good and wholesome water for domestic, fire and power purposes; and for the erection, construction or purchase of such waterworks and reservoirs, within and without the limits of the city, as may be necessary or convenient therefor; and the cost of erection, construction or purchase of such waterworks shall he provided for in the manner prescribed in Section 51 of this act.” Subdivision 36 is as follows: “To grant to any private person, or to any private corporation, a franchise or permission for the erection or construction of waterworks within the city and with all rights and powers pertinent thereto, including the right to use the streets and public ways for the purpose of laying pipes and other necessary appurtenances. Such franchise shall be used under such rules and regulations and restrictions, including the rate to be charged for such water, as the council may from time to time prescribe.” By Ordinance No. 33, page 34, Charter and Ordinances of Dallas, the city authorized the sale of bonds to the amount of $15,000 for the purpose of acquiring and constructing a system of waterworks for the city, of which the sum of $3,000. was expended for rights of way and $12,000 used in part payment to plaintiff. [450] The jurisdiction of the commission to supervise and regulate every public utility in this state is conferred by Section 6, Chapter 279, General Laws of Oregon for 1911, page 484. By Section 1 of that act the term, “public utility” is defined as follows: “The term ‘public utility’ as used herein, shall mean and embrace all corporations, companies, individuals, associations of individuals, their lessees, trustees or receivers (appointed by any court whatsoever), that now or hereafter may own, operate, manage or control, any plant or equipment or part of a plant or equipment in this state, * * for the production, transmission, delivery or furnishing of heat, light, water or power, and any and all whether either directly or indirectly to or for the public, and whether said plant or equipment or part thereof is wholly within any town or city, or not. “No plant owned or operated by a municipality shall be deemed a public utility under or for the purposes of this act.” The question for determination, therefore, is: Who is the owner of the water plant within the meaning of the public utility act of 1911? If owned by the city then the commission has no authority to fix the rates, but if owned by Gates it has that authority. It appears from the record that all the deeds for the right of way were executed to the City of Dallas. The title of the ordinance and the provisions thereof clearly indicate that the city is the owner of the plant. The payment of $12,000 and all tolls that might be collected by Gates during the twenty years mentioned, or such further time as the same might be extended, was the consideration to be paid by the city for the construction, extension, repair, and management of the plant. Section 715, L. O. L., declares the general rule of construction of statutes thus; [451] “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.” Section 716, L. O. L., reads in part as follows: “In the construction of a statute the intention of the legislature, * * is to be pursued, if possible. * # In Helm v. Gilroy, 20 Or. 517, 522 (26 Pac. 851), the court said: “The true criterion of an irremovable fixture consists in the united application of several tests: (1) Real or constructive annexation of the article in question to the realty. (2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation, to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made. ’ ’ See Blanchard v. Eureka Planing Mill Co., 58 Or. 37 (113 Pac. 55, 37 L. R. A. (N. S.) 133); Bay City Land Co. v. Craig, 72 Or. 31, 44 (143 Pac. 911); Johnson v. Pacific Land Co., 84 Or. 356 (164 Pac. 564); 11 R. C. L., p. 1059 et seq. Section 60, Charter of the City of Dallas, 1901, provides as follows: “The fee of all streets and alleys now within the City of Dallas is vested in the City of Dallas and shall forever remain open as thoroughfares for the use of the public unless legally closed by the city council.” [452] It will be noticed that the contract between Gates and tbe city directs that “after all said payments are made, the material and plant shall be and remain the property of the city, and shall not be removed therefrom.” In securing the water right and the right of way for the reservoir site and pipe-lines, etc., it was necessary for the city to bring condemnation proceedings. In one of these cases, Dallas v. Hallock, 44 Or. 246, 256 (75 Pac. 204), in determining whether or not the city had the right to condemn the right of way, this court, speaking through Mr. Justice Wolverton, used the following language: “Whether the city intends leasing the plant when it has acquired it, or has not provided the ready funds with which to pay for its construction, cannot affect them in the least. The contract contemplates that the city shall own the system when completed, and the fact that the builder, as a part consideration for its construction, is to take as lessee the tolls for a term of years, cannot affect the right to construct, and for that purpose to acquire the easements necessary thereto.” “An owner is one who has dominion over that which is the subject of the ownership. He has the right to make such use of it, consistently with the rights of others, as he may see fit. The ownership may extend to the entire thing, or may be limited to an interest in it, and whatever is the subject of the ownership is held by the owner for his own individual benefit: Flormam v. School Dist. No. 11, 6 Colo. App. 319 (40 Pac. 469), 6 Wds. & Phrases, p. 5135.” We have, however, to consider who is the owner of the water plant within the meaning of the public utility act. The language of the latter part of the section defining a public utility says, “no plant owned or operated by a municipality shall be deemed a public utility under or for the purposes of this act.” 'It seems to us that this clearly excludes the plant in question from [453] the jurisdiction of the Public Service Commission. The lawmakers evidently intended that where a municipality either owned or operated such a plant the city authorities should regulate the rates to be charged. This was done in the case under consideration by the passage of Ordinance No. 23, fixing the rates for water. The City of Dallas is the owner of the water plant in question within the meaning of the public utility act. The commission has only such authority as the lawmakers in their wisdom have seen fit to confer upon it. Counsel for defendants cited and relied upon Hunter v. City of Roseburg, 80 Or. 588 (156 Pac. 267, 157 Pac. 1065). We see no analogy between that case and the present one. They urged that according to the terms of the ordinance and contract the city never agreed to purchase the plant from Gates. This might be answered by saying that the city would not be expected to make an agreement to purchase its own property. In its contract with Gates to construct the waterworks it was to pay a definite sum and in addition he was to have the proceeds derived from the plant until the city should pay an amount to be thereafter fixed. The decree of the trial court will be reversed and one entered here setting aside the order of the commission. Reversed and Decree Rendered. Modieied on Rehearing. Mr. Justice McCamant took no part in the consideration of this case.