Spencer v. City of Portland , 114 Or. 381 ( 1925 )

BROWN, J.

Eminent domain is the offspring of necessity. Public necessity, or urgent public policy, is the only justification for seizing the property of a law-abiding citizen against his will. In all cases of this character, the law not only requires a sufficient procedure for condemnation, but likewise demands that such procedure be strictly pursued. Further, the acts conferring the power of eminent domain upon a corporation must be strictly construed in favor of the person whose lands are about to be taken against his will. This is so because the power to condemn is in derogation of common right: 20 C. J. 534.

This case affords an illustration of the assertion of the right of eminent domain, a sovereign power of the state, by one of its municipal corporations, to which that power has been delegated. In the exercise of this delegated right, the defendant herein has seized the private lands of plaintiff for public purposes, without her consent and against her will.

That the conditions established by the charter for the widening of the street were observed is admitted. But, says the plaintiff, while you have conformed to all the conditions imposed by the charter in proceeding to condemn my land for a public highway, this does not constitute due process of law, because there is no provision therein for an appeal from the award of damages. However, we believe that, if all parts of the charter pertinent to this issue are read and construed together, it will be apparent from the language employed therein that the body enacting the same intended to, and did, provide for an appeal, both from an award of damages and of benefits. Further, it is our duty, in determining the question raised by plaintiff involving the validity of the charter provisions, to bear in mind the maxim of statutory construction that, if reasonably possible, a statute should be so construed as to render it valid: Calder v. Orr, 105 Or. 223 (209 Pac. 479, and local citations there noted). From a careful study of the charter provisions in the light of the statutory rules of construction, we are of opinion that the charter provides for a hearing before a competent tribunal in condemnation proceedings, and that it affords the land owner an appeal to the Circuit Couiff from the awards made by the tribunal composed of city officials.

Every law is to be interpreted according to the intention of the legislature as it appears from the words of its enactment: United States v. Fisher, 109 U. S. 145 (27 L. Ed. 885, 3 Sup. Ct. Rep. 154, see, also, Rose’s U. S. Notes). For this reason, we have pointed to the intention expressed in the act.

It is a familiar rule that the various parts of a statute should be read so that all may, if possible, have their due and conjoint effect without repugnancy: Twohy Bros Co. v. Ochoco Irr. Dist. et al., 108 Or. 1 (210 Pac. 873, 216 Pac. 189); United States v. New York Steam Fitting Co., 235 U. S. 327 (59 L. Ed. 253, 35 Sup. Ct. Rep. 108, see, also, Rose’s U. S. Notes). Applying this principle to the case at bar, all pertinent provisions of the charter on which the defendant based its proceedings must be read and considered.

Another matter of consequence in determining the question before us is the fact that the provisions of the charter involved herein have for a number of years, and upon numerous occasions, been construed by the officials charged with their execution. In such cases, condemnation proceedings have been had, as here, and appeals have been taken therefrom and heard in the Circuit Court. The validity of the charter provisions are now assailed for the first time. In this the plaintiff is well within her lawful rights. But is well settled “that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.” United States v. Josnston, 124 U. S. 236 (31 L. Ed. 389, 8 Sup. Ct. Rep. 446, see, also, Rose’s U. S. Notes). To like effect, see Logan v. Davis, 233 U. S. 613 (58 L. Ed. 1121, 34 Sup. Ct. Rep. 685); Boston etc. R. Co. v. Hooker, 233 U. S. 97 (58 L. Ed. 868, Ann. Cas. 1915D, 593, L. R. A. 1915B, 450, 34 Sup. Ct. Rep. 526).

On the contemporary exposition of a statute, see the following decisions by this court: Biggs v. McBride, 17 Or. 640 (21 Pac. 878, 5 L. R. A. 115) ; McQuaid v. Portland & V. Ry. Co., 18 Or. 237 (22 Pac. 899); Kelly v. Multnomah County, 18 Or. 356 (22 Pac. 1110); Shattuck v. Kincaid, 31 Or. 379 (49 Pac. 758).

Again, a contemporaneous construction ought not to be overruled without cogent reasons: United States v. Pugh, 99 U. S. 269 (25 L. Ed. 323, see, also, Eose’s U. S. Notes). And,.in a case of doubt, it ought to turn the scale: Brown v. United States, 113 U. S. 571 (28 L. Ed. 1080, 5 Sup. Ct. Rep. 648, see, also, Rose’s U. S. Notes).

Eecurring to plaintiff’s assertion that the charter gives her no right of appeal: Nothing is better settled, in this jurisdiction, than the rule of law that an appeal is not a matter of right, but a statutory privilege; and the party who would enjoy such privilege must show the law conferring it upon him: City of Portland v. Nottingham, 58 Or. 1 (113 Pac. 28); Salem King’s Products Co. v. La Follette, 100 Or. 11 (196 Pac. 416). However, it is a canon of construction that statutes conferring the right of appeal are remediable in character and should, therefore, be liberally construed; and if, from its language, such an act is fairly susceptible of more than one construction, it should be construed in favor of the right of appeal: 2 Lewis, Eminent Domain, § 535.

Statutes giving appeals are liberally construed so as to embrace condemnation proceedings, if possible: Howard v. Drainage Commrs., 126 Ill. 53 (18 N. E. 313); Yelton v. Addison, 101 Ind. 58; 1 Elliott, Roads and Streets (3 ed.), § 412.

“In such cases the statutes should be liberally construed in favor of the right, and every reasonable intendment made in favor of its existence. The power of seizing property is a high one, and the assessment of benefits and damages often involves very important and difficult questions, and it should not be held, where it can be avoided, that the decision of the tribunal of original jurisdiction cannot be appealed from, since it ought not to be presumed that the legislature meant to place the decision of a tribunal of the rank of those to which original jurisdiction is usually given beyond review by higher courts. The reasonable presumption is that it was not the legislative intention to cut off the right of appeal. In conformity to these views we find the courts _ generally favoring the right of appeal, and extending the statutes as far as it is in their power tó do so in order to secure and preserve the right.” 1 Elliott, Roads and Streets (3 ed.), § 412.

The charter enacted in 1903 containing no expressed intention to the contrary, it is presumed to be the intent of the legislative body that that charter was enacted for all time: 26 Am. & Eng. Ency. of Law (2 ed.), 715. The right of appeal embraced therein has never been withdrawn. That privilege conferred by statute remains in full force and effect to this day. True, under the city’s constitutional power, its charter provisions have been amended, repealed and re-enacted; but the right of appeal to the Circuit Court, conferred by the lawmaking body of this state, has never been surrendered or recalled."

What is the effect of a repeal and re-enactment of the same provisions of a law, fundamental or statutory?

“If the new instrument (constitution) re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. This is the rule in the case of statutes.” Cooley’s Constitutional Limitations (7th ed.), pp. 96, 97.

Again: “Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time. * * Offices are not lost; corporate existence is not ended; inchoate statutory rights are not defeated; a statutory power is not taken away, nor pending proceedings or criminal charges affected by such repeal and re-enactment of the law on which they respectively depend.” 1 Lewis’ Sutherland Statutory Construction (2 ed.), §238.

In practical operation and effect, the new act is to be considered as a continuance of the old: 36 Cyc. 1084, and decisions under note 76. Hence, jurisdiction by the Circuit Court to hear this case upon appeal arises from the Constitution and the statutes passed in pursuance thereof: Or. Const., art. VII, §9; Dippold v. Cathlamet Timber Co., 98 Or. 183 (193 Pac. 909); 7 R. C. L., p. 1030.

The objection that Section 325 of the charter, as amended to read that an appeal shall be taken “within the same time, in the same manner, and with the same force and effect as is provided by Sections 401 and 402 of the 1903 charter of the City of Portland,” limits the appeal to the question of assessments, is not well taken. There may be ground for argument in support of plaintiff’s contention. But, upon a consideration of the various charter provisions pertaining to the matter of laying out, establishing and widening streets, together with the reference therein to damages upon appeal, it is apparent that the land owner, in all such cases as the one at issue, has the right of appeal to the Circuit Court from an assessment of damages. We have already adverted to the force of contemporary construction and the rules of interpretation in such causes on appeal. But, as to the meaning of the term “force and effect,” on appeal, as used in the charter, see 3 C. J., p. 1261. The term as here employed is not one of limitation of the matter to be reviewed upon appeal.

In the event that the appellate procedure in the matter of eminent domain is not included in the statutory provisions, the general rules of practice in similar cases are adopted: 1 Smith, Modern Law of Municipal Corporations, § 724; 1 Elliott, Roads and Streets (2 ed.), § 362; 2 Lewis, Eminent Domain (2 ed.), § 540. However, the enactment of Chapter 294, Laws of 1925, now effective, has removed all doubt involving appellate procedure.

This cause should be affirmed. It is so ordered.

Affirmed.

Bean and Burnett, JJ., dissent. Rand and Coshow, JJ., toot no part in the consideration of this case.