Rockhill v. Benson , 97 Or. 176 ( 1920 )

BENNETT, J.

The main contention on the part of the plaintiff and respondent, and the one upon which the court below rested its decision in plaintiff’s favor, is that the highway commission has no authority to create or lay out a new road;' but that that authority is vested exclusively in the County Courts; and the highway commission can only designate or adopt roads which are already county roads and public highways, as a part of the state system of roads.

In its conclusion that the highway commission had no power to designate or lay out a road for a state highway, where there was no public road before, we think the court below erred. The contention of respondent in this regard is based upon two grounds:

First. That any attempt on the part of the legislature to grant such power to the highway commission to create or establish a new road would make the law special and local, and be in conflict with Section 23, Article IV, of the Constitution of the State of Oregon, which provides that the legislative assembly—

“Shall not pass special or local laws * * for laying out, opening, and working on highways, and for the election or appointment of supervisors.”

Second. That the legislature did not, by the act of 1917, and the succeeding act of 1919, attempt or intend to confer any such- power to create new highways or portions of new highways, npon the highway commission.

1. As to the first proposition, we do not think that the act of the legislature in question was in conflict with the constitutional provision in question. It is now well settled that all power of legislation belonging to the people is vested in the legislature, unless such power is restricted and limited by some constitutional provision. Of course, it follows that in the first instance the power to create roads, and to regulate 'and control them, to lay them out, change or vacate them, is vested in the legislature, and it may do any of these things fully and freely, and in any manner it may see fit to adopt, unless restricted by the Constitution itself.

It will also be noticed that the constitutional provision in question does not in any way restrict or limit the general power of the legislature in relation to roads and highways, but is only directed toward the manner in which that power shall be exercised. The Constitution does not say that the legislature cannot create highways, or change highways, or lay out highways, or that such power shall be vested in the County Courts, or in any other tribunal. It only provides that the legislature shall not take such action by special or local laws. In this case we think that both the provisions and the purpose of the laws in question were general and not local or special. The act of 1917 provides for a general system of state highways, consisting of trunk roads along the main routes of travel and commerce, with branch lines extending out into every portion of the state. It provides for a highway commission, whose power,, authority, and duty is not confined to any one person or thing, or to any one county or place, but are general and extend to every hamlet and'neighborhood in the state. The fund to provide for this highway system is also general, and is raised by general taxation and general license provisions.

The courts have found much difficulty sometimes, in close cases, in distinguishing between general laws on the one hand, and local and special ones upon the other; but here the act is so broad in its scope, so general in its nature, that there is little, if any, room for questioning its character as a general law. The respondent depends upon Sears v. Steele, 55 Or. 544 (107 Pac. 3), to support its contention. However, the question at bar was not passed upon in that case, but was especially reserved, the court saying:

“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. ’ ’

In that case the act provided for the construction of two local roads — one in Jackson County, from .Medford to Crater Lake, and one in Klamath County, from Klamath Falls to Crater Lake — and the act was so framed that either of them could be proceeded with, without the other. There was no provision for a general system of roads over the entire state, or for a permanent commission with authority to create and designate such roads. It was upon the ground that the roads in question in that case were local in their character and nature that the court distinguished that case from the previous case of Allen v. Hirsch, 8 Or. 412.

“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 $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 appropriates $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.”

We think the act in question here is clearly in its main features a general and not a special or, local act, and was in this regard within the power of the legislature. Whether there are any minor provisions of the act, not involved in this proceeding, which are special and local, and therefore not constitutional, is a question not necessary to decide at this time; but, so far as the act confers authority upon the commission to lay out and create highways, we hold it is general in its character.

2. Upon the second branch of the contention, that the legislature, by the acts in question, did not in fact confer power' upon the highway commission to lay out and create new roads, as a part of the state highway, whenever it may be necessary to secure a good alignment or the best possible grade we think that question, also, must be decided in favor of the contention of appellants.

It is true that the act does not say in express words that the commission may “lay out and create new roads.” But we think that power is implied quite clearly by many of the provisions of the act, which make the intention to grant the power as plain as if it were conveyed by express words.

Section 3 of Article II of the Act of 1917, creating the highway commission (Chapter 237), provides:

“Upon the selection of state highways hereinafter provided for, the decision of the commission must be unanimous. ’ ’

Section 5, Id., contains this provision:

“Said Commission shall designate, construct or cause to be constructed a system of state highways within the State of Oregon, which highways shall be designated by number, and by the point of beginning and terminus thereof.”

Section 6, providing for the duties of the highway engineer, has the following:

“On all state highways and on county roads constructed under his supervision a simple but adequate accounting system shall be installed in order that all expenditures and costs may be classified as the work progresses.”

Section 7 provides:

“"Whenever any county desires to construct or improve any part of a state road lying within such county, the County Court of such county may make application to the State Highway Commission for the definite location and grade for such road, and the state highway engineer shall cause such road,, or portion thereof, to be definitely located and the grade thereof established.”

Section 9 provides for the obtaining of the right of way by the counties in the first instance, but it also provides:

“In case of neglect or refusal to so acquire said right of way, the state shall have the power, through the commission, to acquire said right of way*either by donation, purchase, agreement, condemnation, or through the exercise of the power of eminent domain in the same manner as is provided by law for acquiring property for other public uses.”

Section 10 again makes the same distinction between county roads and state roads:

“All moneys raised by counties for road purposes, and expended or to be expended upon roads within such counties other than state highways, shall be under the exclusive control of the County Court of such counties.”

The Bonding Act of 1917 (Chapter 423) provides:

“No description of any highway provided for herein shall be construed to prevent the State Highway Commission from making such local changes in the location thereof as they may deem proper..

“The State Highway Commission is also authorized to adopt such other roads or routes connecting portions of the State and to provide for the construction of post roads or forest roads over such routes and the improvement and maintenance thereof, and to pay for the same from the fund created by House Bill No. 21 referred to by title in section 8 hereof.”

Section 10 of the Act of 1919 (Chapter 173) provides :

“No description of any highway provided for herein shall be construed to prevent the state highway commission from making such local changes in the location thereof as the commission may deem proper; and the state highway commission is authorized and empowered to designate and define as state highways other and additional roads as from time to time they may deem of sufficient public importance, and may improve, better or pave the same.”

It seems perfectly plain, from all of these provisions, that it was the intention of the legislature that the highway commission should have power to lay out, designate, and improve roads where there had previously been no highways. Otherwise, why would there have been any provision for acquiring rights of way, and why any provisions as to local changes, and why the distinction between state and county roads, and the provision for the definite location of roads by-the state engineer?

If this were not the right construction, it would be impossible for the commission to work out any complete system of connecting roads. The commission would be entirely at the mercy of the County Courts, and would have to follow the roads, as designated by the County Courts, however, difficult or impossible the grades and alignment might be. It would entirely prevent the commission from taking advantage of any cutoffs, or new alignments, however much better the new route might be than the old one.

It is a well-known fact that many of the public roads designated by the Highway Act, or portions thereof, were not in existence at all at the time of the passage of the act. The purpose of the act could not, therefore, in such cases be carried out by the highway commission, unless it had the power to designate and lay out new roads. In some cases one county might desire to have the highway running to the county line between two. counties in one place, and the adjoining county might elect to have the highway- through its county, commence on the same county line at an entirely different place. There could be no system of highways, as contemplated and called for by the act, if the County Courts controlled the location, nor unless the commission, whose duty it is to provide such system, had authority to designate the route of the road.

3. We do not think the construction of this act is doubtful in this regard. But, if it were, we would be bound to construe it by its four corners and in such a way as to carry out and effectuate the obvious intent of the legislature. In some cases the legislative act designates particular towns and cities through which the highway must pass, and such designation is, of course, controlling upon the commission, but in other respects the location is left to the commission.

4. Neither do we think there is anything in the other objections, to the construction of this piece of road, which would justify the court in enjoining the same and holding up the work. We do not think that the road by Biddle was officially and definitely located as the Pacific Highway, prior to the act of 1917, or at any time thereafter. The road map, which is claimed to have adopted that road as the highway, was prepared and adopted long after the passage of Chapter 237 of the Laws of 1917. It was a general map on a very small scale, and we hold that it did not, and was not intended to definitely locate the highways referred to. Many of the roads shown thereon had not even been surveyed at the time of the preparation of the map, and the commission, in its resolution addpting the map, carefully pointed out that it was subject to change and was not a definite location.

5. The agreement between the County Court and Mr. Benson (if there was such an agreement) was not with the commission, but with Mr. Benson alone, and it was not in any way binding upon the commission. It was not in any sense an official act, so there could be no estoppel of the commission thereby, even if the doctrines of estoppel would otherwise apply.

6. Neither do we think the proceeding can be enjoined by a taxpayer of the county, on account of the failure of the commission to obtain some of the rights of way, before the contract was let. The commission can always obtain a right of way by condemnation, if that shall become necessary, and we do not think that the provision of the act that “the right of way for state highways, and roads, improved or otherwise constructed under this act, shall be acquired by the counties in which the highways are situated, by either donation, purchase, agreement, condemnation, or through the exercise of the power of eminent domain by the county before any contract shall be let, ’ ’ is mandatory upon the commission, or prohibitory of the letting of a contract, prior to obtaining the right of way, in such a sense that the contract for the grading work can be enjoined by a taxpayer because some part of the right of way has not yet been obtained.

As to the claim that the commission did not use sound discretion in adopting the cutoff, we do not think the evidence sustains the contention of the respondent. The most that can be claimed in that regard from the evidence, it seems to us, is that there is some room for question as to whether the location fixed by the commission was preferable to the other route. The very concession that there is discretion in the matter involves the right of the commission to weigh the arguments in favor of the different routes and decide thereon, and as long as there is reasonable room for contention as to which was the better and cheaper and generally more satisfactory route, its judgment in relation to the matter would he conclusive.

7, 8. Here, as we have seen, the evidence discloses that the route adopted by the commission would be shorter; that the maximum elevation would' he considerably less, and there is a question, and room for the exercise of judgment, as to whether it will not ultimately be the cheaper route. Under these conditions, we would not he justified in interfering with the conclusion of the commission, which we must assume, in the absence of evidence to the contrary, was honestly and conscientiously applied to the facts in the case.

The judgment of the court below will be reversed and the plaintiff’s suit dismissed.

Reversed and Suit Dismissed.