Capen v. City of Portland

• Decision Date: 29 July 1924
• Citation: 112 Or. 14,228 P. 105
• Parties: CAPEN v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

228 P. 105

112 Or. 14

CAPEN v. CITY OF PORTLAND.

Supreme Court of Oregon

July 29, 1924

McCourt J., dissenting.

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit by E. W. Capen, on behalf of himself and others similarly situated, against the City of Portland. Decree for defendant and plaintiff appeals. Affirmed.

This is a suit brought by the plaintiff to restrain the city of Portland from issuing public utility bonds for the purchase of ground for a public golf links in that city. It is alleged that the city operates a public golf links, known as the Eastmoreland Golf Links, and that the south nine holes of said golf links, on which is situated the clubhouse, are actually owned by the city, and the north nine holes are owned by the Ladd Estate Company and operated by the city under a lease; that on the 28th day of May, 1924, the city council enacted a pretended ordinance wherein and whereby it was found and declared that the aforesaid golf links was a public utility under the city charter, and provided for the purchase of the north nine holes of said golf course from the Ladd Estate Company and for the payment therefor by the city of $95,000 in so-called "public utility cartificates," or with the proceeds of the sale thereof secured by a trust deed on the property purchased. Annexed to the complaint, and made a part of it, are certain sections of the city charter and certain ordinances of the city of Portland. Section 151 of the charter of the city of Portland reads:

"The city of Portland shall have the power to construct, condemn purchase, add to, acquire, maintain, operate and own all or any part of any public utility or any plant or enterprise for the purpose of serving the city and the people thereof for uses public and private. Such power may be exercised in any lawful manner and shall include the power to purchase, condemn or otherwise acquire any franchise heretofore granted to operate a public utility."

Section 152 reads as follows:

"The city shall have the power to construct and acquire in any legal way and to maintain and operate works, plants and facilities for the purpose of doing any and all municipal work by direct employment of labor under the supervision of the city, and may use such works, plants and facilities, and the product thereof, for the purpose of doing municipal work of all kinds, and shall have the power to sell such product for use in the construction of municipal improvements of all kinds. It shall have power to provide payment for the whole or any part of local improvements constructed or done by the city directly under the provisions of this section by assessment against the property benefited thereby. * * *"

Section 153 is as follows:

"The term 'public utility' as used in this charter shall be deemed to include every plant, property or system engaged in the public service within the city or operated as a public utility as such terms are commonly understood."

The question here is upon the authority of the city to purchase the golf course and pay for it in public utility certificates; it being claimed by the plaintiff that a golf links is not a public utility within the meaning of the law. There was a demurrer to the complaint, which was sustained, and plaintiff appeals to this court.

W. A. Johnson, of Portland (Teal, Winfree, Johnson & McCulloch, of Portland, on the brief), for appellant.

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

McBRIDE, C.J. (after stating the facts as above).

No question is raised here as to the authority of the city to make this purchase under its authority to provide parks, the sole question being whether a golf links is of such public importance as to constitute a public utility within the meaning of the law.

We find in...