Cabell v. City of Portland

• Decision Date: 26 May 1936
• Citation: 153 Or. 528,57 P.2d 1292
• Parties: CABELL et al., State Highway Commission, v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

57 P.2d 1292

153 Or. 528

CABELL et al., State Highway Commission, v. CITY OF PORTLAND et al.

Supreme Court of Oregon

May 26, 1936

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Henry F. Cabell, E. B. Aldrich, and F. L. TouVelle, as and constituting the State Highway Commission, against the City of Portland, a municipal corporation, and the Ross Island Sand & Gravel Company for declaratory relief. From the judgment, the Ross Island Sand & Gravel Company appeals.

Affirmed.

Robert R. Rankin, of Portland, for appellant.

J. M Devers, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and J. W. De Souza, Asst. Atty. Gen., on the brief), for State Highway Commission.

Frank S. Grant, City Atty., of Portland, for City of Portland.

BAILEY Justice.

This proceeding was instituted by Henry F. Cabell, E. B. Aldrich and F. L. TouVelle, constituting the state highway commission of the state of Oregon, against the city of Portland, a municipal corporation, and Ross Island Sand &amp Gravel Company, a corporation, for a declaratory judgment to the effect that the highway commission has authority in law to do and perform the following acts "1. Lay out and establish highways, either primary or secondary, within the corporate limits of the city of Portland along a route, routes or locations where there are no established streets or roads.

"2. Acquire by agreement, donation, or by the exercise of the power of eminent domain rights of way for state highways (primary or secondary) within the corporate limits of said city, and pay the cost thereof with state highway funds.

"3. Acquire at state expense rights of way for widening or otherwise improving streets or roads in said city where such streets and/or roads form a link in a state highway or connect two state highways.

"4. Construct, reconstruct, pave, improve, repair and/or maintain streets and/or roads within the city of Portland under the authority and provisions of chapter 88, Oregon Laws 1931.

"5. Select, designate, lay out, establish and adopt as a part of the East Portland-Oregon City highway the route and location described and defined in *** plaintiffs' complaint.

"6. Use and disburse state highway funds within the corporate limits of the city of Portland for the construction, reconstruction, improvement, pavement and/or maintenance of streets or roads within the city of Portland where such streets or roads form links in, or are parts of, state highways, whether primary or secondary, and use or disburse state highway funds for the acquisition of rights of way therefor."

From a judgment and decree declaring that the state highway commission has power and authority to perform the foregoing acts within the corporate limits of the city of Portland, the defendant Ross Island Sand & Gravel Company prosecutes this appeal.

The complaint alleges, among other things, that "several of the duly established, constructed and improved primary and secondary state highway are so located and routed that they enter and pass through the city of Portland over duly established, improved and maintained streets of said city, and the highway designated by the state highway commission as the East Portland-Oregon City highway, which said highway is by the city of Portland designated as McLoughlin boulevard, is a state highway, and is also a federal highway, and said highway has been located and constructed within the corporate limits of the city of Portland from the Multnomah county line at the south city limits to the Iron Fireman factory at an intersection with Seventeenth street, and said highway from approximately the point of intersection with Seventeenth street has been located and routed by the state highway commission along" a certain designated route which is specifically described.

It is further averred that a part of the East Portland-Oregon City highway so designated is routed over private property and encroaches upon property owned by the defendant Ross Island Sand & Gravel Company; that a condemnation proceeding has been instituted to acquire a right of way over that defendant's land; that said proceeding is pending; and that the said defendant questions the right of the state highway commission to acquire said lands or to disburse funds of the state highway commission in payment for the same. It is then alleged: "It is proposed by the highway commission to call for bids, and if a satisfactory bid is received, to award a contract for the construction of said highway over said route, and for such purpose the highway commission will take possession of the property sought to be condemned in said pending condemnation action in advance of the trial of said cause, and should the defendant Ross Island Sand & Gravel Company appeal from the judgment entered in the trial of said cause, and as a result of said appeal the supreme court find that the highway commission was without lawful authority to acquire said property by condemnation or to pay the cost thereof out of highway funds, and was without authority to construct said highway within the corporate limits of the city of Portland, then the highway commission would be charged with proceeding unlawfully and would be charged with having disbursed highway funds without authority of law."

The city of Portland admits all the allegations of the complaint and requests that a declaratory judgment be entered in accordance with the plaintiffs' demands. The defendant Ross Island Sand & Gravel Company admits the facts stated, but denies the conclusion set forth in the complaint as to the authority of the state highway commission to condemn land for highway purposes in the city of Portland or to disburse moneys of the state in payment for rights of way over such land. It is admitted that the contemplated highway described in the complaint "forms a link" in the state highway system and that the "governing body" of the city of Portland has consented to the establishment and construction of this roadway.

The questions presented for decision on this appeal can be succinctly stated as follows: (1) Has the state highway commission authority to construct, reconstruct, pave, improve, repair, and maintain roads and streets in and through incorporated cities of 100,000 or more population? (2) Has the state highway commission authority to lay out, establish, construct, and maintain roads and highways within the corporate limits of cities of 100,000 or more, over routes where there are no established streets?

In 1917 the Legislature passed an act known as "the Oregon highway law," chapter 237, p. 447, Laws 1917, by which the state highway commission was created and its powers and duties specified. According to the provisions of this act, the state highway 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." Article 2, Section 5. Article 1, Section 4 of this act provides that, "where the terms 'road' or 'highway' are used they shall be taken and deemed to include necessary bridges and culverts, and they shall not be taken or deemed to mean or include city streets. 'State Highway' shall be taken and deemed to mean any road or highway designated as such by the Commission or by law." The act further specifies that the right of way for state highways and roads completed or constructed under its provisions shall be acquired by the county in which the highways are situated either by purchase, donation, agreement, or condemnation. In the event of the neglect or refusal of the county to acquire such rights of way, the state is granted power through the state highway commission to acquire the rights of way by any of the means through which the county could have acquired the same. In the event that the state highway commission obtains such rights of way, the county is required to reimburse it for any cost therewith connected.

In the same session, by chapter 423, p. 897, Laws 1917, the Legislature designated the highways to be constructed by the commission and authorized the commission to issue bonds not exceeding $6,000,000, to finance the construction of these roads and highways. Two years later the Legislature authorized the commission "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." Section 44-610, Oregon Code 1930.

In 1921 the highway commission was authorized and empowered to construct and pave roads and streets through incorporated cities and towns of less than 2,000 population, "provided, such roads or streets form a link in a state highway or constitute a connection between two state highways." It was expressly provided that the commission should have no power to change the grade of any road or street from that established by the city or town. Section 44-2702, Oregon Code 1930. This act further directed how the cost of such improvement should be divided among city, county, and state. Section 44-2703, Oregon Code 1930.

Chapter 88, p. 122, Oregon Laws 1931, on which the plaintiffs principally rely for the authority of the commission to do the acts which the circuit court held it was empowered to do, provides as follows:

"Section 1. That the state highway commission hereby is authorized and empowered to construct, reconstruct, pave, improve repair and maintain roads and streets through incorporated cities and towns where such roads and streets form a link in the state highway or constitute a connection between two state highways; provided, however, the state highway commission shall have no power to change any grade...