City of Oregon City v. Moore

• Decision Date: 07 December 1896
• Citation: 46 P. 1017,30 Or. 215
• Parties: CITY OF OREGON CITY v. MOORE, Treasurer. [1]
• Court: Oregon Supreme Court

46 P. 1017

30 Or. 215

CITY OF OREGON CITY v. MOORE, Treasurer. ^[1]

Supreme Court of Oregon

December 7, 1896

Appeal from circuit court, Clackamas county; T.A. McBride, Judge.

Application by the city of Oregon City for mandamus to M.L. Moore treasurer. Writ denied, and plaintiff appeals. Affirmed.

C.D. Latourette, for appellant.

C.C Brownell, for respondent.

BEAN J.

This is a mandamus proceeding to compel the county treasurer of Clackamas county to pay over to the plaintiff certain road taxes collected under the general laws of the state. The record discloses that in January, 1895, the county court of that county levied a tax of four mills on the dollar on all the taxable property within the county, and a poll tax of two dollars upon each and every person liable therefor, for road purposes, as authorized by subdivision 4 of section 4085, Hill's Ann.Laws Or., as amended in 1893 (Laws 1893, p. 60), and that pursuant to such levy there has been collected from the property and inhabitants of the plaintiff, and paid over to the defendant, the sum of $2,874.77, which the plaintiff claims by virtue of subdivision 28 of chapter 5 of its charter, which reads as follows: "The council shall have exclusive control and direction of all funds collected under general laws for the improvement of roads and streets within said corporation, and the street superintendent shall perform the duties of supervisor as required by the general laws of this state relating to streets and highways; but he shall report to and be under the direction of the city council and not to the board of county commissioners of Clackamas county; provided that the city council may, by ordinance, direct that any or all of such funds collected for road purposes be expended on any main county road leading into Oregon City when, in their judgment, the city would be benefited thereby; provided, that the city council shall turn over to the county court of Clackamas county forty per cent. of the funds so collected each year and the same shall be expended under the direction of said county court on main county roads leading into Oregon City." In behalf of the defendant it is contended that this provision of plaintiff's charter is in conflict with article 4, § 23, subds. 7, 10, of the state constitution, which inhibits the legislature from passing special or local laws "for laying, opening, and working on highways, and for the election or appointment of supervisors," and "for the assessment and collection of taxes for state, county, township, or road purposes," and is therefore void. But it seems to us that upon this question the case is ruled by City of East Portland v. Multnomah Co., 6 Or. 62, in which it was held that a provision, in an act incorporating a city, excepting the territory within the limits of the municipality from the jurisdiction of the county court for road purposes, and vesting the same in the municipality, was not violative of the provisions of the constitution referred to. This case was reaffirmed in Multnomah Co. v. Sliker, 10 Or. 65, and City of Astoria v. Clatsop Co., cited Id., not reported. Now, if the legislature may, by a special law incorporating a city, constitutionally vest in the municipality exclusive jurisdiction over the county roads within its boundaries, it seems to us that no valid objection can be made, on constitutional grounds, to a provision in such an act merely conferring upon the municipal authorities the right to control the expenditure of funds applicable to the improvement of roads and streets within the municipality, collected under general laws.

But notwithstanding the constitutionality of plaintiff's charter, the demurrer to the...