Calkins v. Lane County

BEAN, J. There is but one question involved in this controversy, and that is: Are state highways in131 eluded within the term “market roads” as that term is employed by the lawmakers in the act in question, or must the “state market road appropriation” be expended under the supervision of the County Court upon roads other than the state highways ? It is clear from the language of Section 4680 that the taxes levied pursuant thereto are paid to the state for the purpose of distribution by the highway commission, in order to compel any county participating in the fund to raise an amount equal to that so apportioned. In other words, this section refers to the manner of such distribution and provides that the amount “shall constitute an appropriation therefrom,” that is, from the highway fund. "When the fund is so distributed the duty of the highway commission as to the “state market road appropriation” is at an-end except as to plans and surveys. Before the creation of a highway commission the public thoroughfares of this state, aside from the streets of incorporated cities or towns, were under the jurisdiction and control of the county courts. The lawmakers have delegated to the state highway commission the duty of constructing and maintaining the state highways as contradistinguished from county roads. The line of demarcation between state highways and county roads is plainly indicated in this state: Rockhill v. Benson, 97 Or. 176 (191 Pac. 176); Sears v. Steel, 55 Or. 544, 554 (107 Pac. 3). Market roads belong to the class of county roads which are under the control of the County Court: Section 10, Chapter 237, General Laws of Oregon, 1917. “The term ‘state highway’ shall be taken and deemed to mean any road or highway designated as such by the state highway commission or by law. [132] “The term ‘county highway’ shall mean every highway which is not a state highway as in this act defined.” Laws of 1921, Chap. 371, p. 707. The state highways upon which the state contributes not less than 25 per cent of the cost are under the control of the state highway commission. County roads are under the control of the County Courts: Section 4441, Or. L. The act in- question directs that the market roads provided for shall be constructed only under the supervision and control of the County Court of the respective counties. It does not appear from the statute that this language was used for the purpose of conferring special jurisdiction upon the County Courts, but rather as a description of the roads upon which the money- to be raised under the act should be expended. For convenience, and in order to distinguish such thoroughfares from state highways, they are termed market roads. Liberal provision had been made for the construction of state highways. A vast number of people of the state were residing at a distance from such highways designated as the roads of primary importance first to be constructed as main or trunk lines. The several counties were doing the work of grading and preparing for hard surfacing of the state highways. The act in question appears to have been passed for the purpose of balancing up the proposition, and enlisting the hearty support of the people living at a distance from the state highways, by the construction of market roads or feeders to the state highways. For this reason they placed the supervision and control of the construction of market roads exclusively in the power of the County Courts of the respective counties, in order to 'insure local improvement of highways as might be demanded by [133] the people of a county acting through their county officials. To provide for the distribution of the market road funds by the state highway commission to the various counties, and then have the moneys turned back and expended on the state highways, is to render a vital portion of the act nugatory. The money so raised should be expended according to the mandate of the statute. The disbursement of such funds in the construction of state highways under the control and jurisdiction of the state highway commission to the depletion of the market road fund is not a compliance with the statute. It is doubtful if the act in question would ever have been adopted by the people of the state if such an expenditure had been contemplated by the electors. It is a well-established rule in this state that money raised by taxation and placed in a special fund cannot be used for any other purposes: Northup v. Hoyt, 31 Or. 524 (49 Pac. 754); Bowers v. Neil, 64 Or. 104, 112 (129 Pac. 433). The Constitution ordains that every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied: Const., Or., Art. IX, § 3. The state highway commission has no authority over, the construction of market roads, except that the commission is required to furnish plans and specifications- therefor upon the request of the county. It does not change the matter that the County Court of Lane County has by resolution designated a portion of the Pacific Highway as a market road. This does not authorize the county to construct the same out of the market road fund. The Pacific Highway is established by law. The market road fund is established for a specific purpose, and the money cannot be used for any other purpose than that provided hy the stat [134] ute: 36 Cyc. 1106; Scott v. Ford, 52 Or. 288, 296 (97 Pac. 99); Bowers v. Neil, 64 Or. 104 (128 Pac. 433). We think the law in question is a plain expression of the will of the lawmakers of the state. There is little necessity for construing the act. It follows that the decree of the lower court is affirmed. Affirmed. Rehearing Denied.