Cabell v. City of Cottage Grove

• Decision Date: 10 November 1942
• Parties: CABELL ET AL. <I>v.</I> CITY OF COTTAGE GROVE ET AL.
• Court: Oregon Supreme Court

170 Or. 256

130 P.2d 1013

CABELL ET AL.v.

CITY OF COTTAGE GROVE ET AL.

Supreme Court of Oregon.

Argued September 24, 1942.

Reversed November 10, 1942.

Rehearing denied January 19, 1943.

Action

1. In proceeding by State Highway Commission for judicial declaration of extent of its jurisdiction over city streets which constitute a part of state highway system, complaint alleging that city council approved plans of proposed improvement including the barricading of certain streets but that thereafter the city repudiated its approval and threatened to tear out the barricade alleged a "justiciable controversy" and stated a cause of suit under the Declaratory Judgment Law.

Action

2. The test of sufficiency of a complaint in declaratory judgment proceeding is not whether the complaint shows that plaintiff is entitled to declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all so that even if plaintiff is on wrong side of controversy if he states existence of a controversy which should be settled by court under Declaratory Judgment Law he states a cause of suit.

Action

3. Where complaint in proceeding for declaratory judgment stated a justiciable controversy, demurrer should have been overruled and after the filing of answer a decree containing a declaration of rights should have been entered.

Highways

4. City streets continue to be such, even though designated by the State Highway Commission as streets over which a state highway shall be routed.

Constitutional law

5. The legislature has power and authority to delegate and recall control over public highways.

Highways

6. In determining the jurisdiction vested in State Highway Commission over city streets which constitute a part of the state highway system, the sole duty of the supreme court is to determine from an examination of the statute the extent of the powers which the legislature has vested in one of its own creatures.

Statutes

7. In construing a statute, court ought never to import into it words which are not to be found there unless from a careful consideration of the entire statute it is ascertained that to import such words is necessary to give effect to the plain intention and meaning of the legislature.

Highways

8. In determining jurisdiction of State Highway Commission over city streets which constitute a part of state highway system, the court is not limited to the mere words of the statute since powers may be implied as reasonable and necessary incidents to those expressly granted.

Officers

9. Where the legislature gives power to a public body to do anything of a public character, the legislature means also, to give to the public body, all rights, without which the power would become wholly unavailable, although such a meaning cannot be implied in relation to circumstances arising accidentally only.

Municipal corporations

10. The fundamental idea of a "street" is not only that it is public, but public for all purposes of free and unobstructed passage, which is its first and primary, but by no means sole, use.

Eminent domain

11. The legislature, by virtue of its paramount and plenary authority, may close a street or may delegate such power to a city, though that power may not be constitutionally exercised without making compensation to property owners who suffer special injury as a result.

Municipal corporations

12. A municipality has no power to close a street unless that power has been delegated to it by the legislature, expressly or by necessary implication.

Municipal corporations

13. Grants of authority to a municipality to declare the general policy in regard to the control of streets are ordinarily strictly construed in the interest of common right.

Municipal corporations

14. The municipal corporation of Cottage Grove did not have authority to barricade a street, which had not been vacated and close it to public travel.

Highways

15. The legislature has not vested in the State Highway Commission all the control formerly vested in city over streets which become a part of the state highway system.

Highways

16. The jurisdiction over city streets, which have become part of state highway system, vested in the State Highway Commission does not embrace the power to impose traffic regulations.

Statutes

17. "Expressio unius est exclusio alterius" is a general rule of construction of statute and it is to be applied with caution and merely as an auxiliary rule to determine the legislative intention.

Statutes

18. In adopting the highway code, the legislature must be presumed to have been aware of the provisions elsewhere found in the statutes granting to the State Highway Commission a measure of authority to control traffic in order to promote the safety of travelers upon the state highways, and therefore it was reasonable to suppose that if any further authority of that kind was intended to be bestowed, the law-makers would have manifested that intention in express language.

Statutes

19. Where words of statute have no settled legal or technical signification, their meaning, as used in the statute, must be ascertained from the connection in which they are used, the act in which they are found, and the legislation of which they form a part.

Highways

20. The jurisdiction which State Highway Commission has over city streets which have become a part of the state highway system authorizes the commission to construct and maintain the roadway and to exercise upon city streets so taken over the specific regulatory powers with regard to traffic vested in the commission.

Highways

21. The jurisdiction of State Highway Commission over city streets which constitute a part of state highway system does not include authority to construct barricades at edge of highway at street intersections so as to shut off access by vehicular traffic to the highway from the streets so intersected.

Estoppel

22. Where City of Cottage Grove did not have authority to close any of its streets, which had not been vacated, it was equally beyond the city's power to authorize the State Highway Commission to do so and therefore the city was not "estopped" by its approval of plan for highway improvement calling for barricading of streets to object to the State Highway Commission's unauthorized acts in barricading the streets.

BRAND and RAND, JJ., dissenting.

                  See 25 Am. Jur. 350 et seq
                  16 C.J.S., Constitutional Law, § 133
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Declaratory judgment proceeding by Henry F. Cabell and others, as and constituting the State Highway Commission of the State of Oregon against the City of Cottage Grove and others. From a decree of dismissal, the plaintiff appeals.

REVERSED. REHEARING DENIED.

J.M. Devers, of Salem (J.W. DeSouza, of Salem, and W.A. Martin, of Milwaukee, Wis., on the brief), for appellants.

Herbert W. Lombard, of Cottage Grove, and Virgil H. Langtry and Fred E. Smith, both of Eugene, for respondents.

LUSK, J.

This is a declaratory judgment proceeding in which the State Highway Commission seeks a judicial determination and declaration of the extent of the jurisdiction and control vested in it by the legislature over city streets which constitute a part of the state highway system. The specific question is whether the commission is empowered in the construction, maintenance and operation of a state highway, within the limits of an incorporated city, to construct curbs or other barriers at the edge of the highway at certain street intersections so as to shut off access by vehicular traffic to the highway from the streets so intersected.

Opposing the commission's claim to such authority are the City of Cottage Grove and certain property owners therein, who contend that they have been damaged by the commission's acts. The case comes here on appeal by the commission from a decree of dismissal following a ruling of the trial court, which sustained a demurrer to the second amended complaint.

The following facts appear: In 1937 the commission undertook to relocate that section of the Pacific Highway which passes through Cottage Grove. Most of the relocated section is over private property, but it also passes over and includes portions of several city streets which it intersects. The highway runs north and south, and on the east side thereof, at three of these intersections, the commission has erected curbs or barricades which prevent access from such streets by vehicular traffic to the highway. It is the opinion and judgment of the commission that an unnecessary traffic hazard will be created if the streets in question are connected with the new highway.

The map, plans and specifications of the proposed improvement, calling for the barricading of these streets in this manner, were submitted to the council of the City of Cottage Grove, which, on April 1, 1940, by resolution, approved and confirmed them and pledged the full cooperation of the city in the accomplishment of the improvement. Subsequently, and after most of the work of construction had been completed at great expense, the city repudiated its pledge and protested against the closing of the streets in question; but the commission, notwithstanding this protest, proceeded to complete the highway, including the barricading of the streets.

The city has threatened to tear out the barricades and challenges the authority of the commission to maintain them, and claims that in that regard its authority is superior to that of the commission.

The complaint contains appropriate allegations showing the existence of a controversy between the plaintiff on the one hand and the defendants on the other, as to the legal authority of the commission to build and maintain the barricades in question.

1,2. As stated, the circuit court sustained the defendants' demurrers. The grounds of the city's ...