Cole v. City of Seaside

• Citation: 80 Or. 73,156 P. 569
• Parties: COLE v. CITY OF SEASIDE ET AL.
• Decision Date: 04 April 1916
• Court: Oregon Supreme Court

156 P. 569

80 Or. 73

COLE v. CITY OF SEASIDE ET AL.

Supreme Court of Oregon

April 4, 1916

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action for injunction by R. R. Cole against the City of Seaside and J. L. Berry, its city auditor, and Geo. E. Shaver, its city marshal. Judgment for defendants, sustaining a general demurrer to the complaint, and plaintiff appeals. Reversed and remanded.

We learn from the complaint that the city of Seaside is a municipal corporation by virtue of certain acts of the legislative assembly hereinafter mentioned and a charter adopted by the voters under the initiative process on February 28, 1912. The other defendants are its auditor and marshal. For nearly 50 years there has been a public county road or highway running from Astoria through the territory now occupied by Seaside to the south line of Clatsop county the same being now an integral part of the system of state roads known as the Pacific Highway. On October 27, 1913, the county court divided that county into road districts including as part of district No. 2 the land on which Seaside is situated. Afterwards, on November 19, 1913, the legal voters of the road district voted and levied a tax of five mills on the dollar on all the taxable property therein for the purpose of improving and repairing the county roads and highways within it, which action of the voters was duly submitted to and approved by the county court on November 25 1913. It is further averred that during the year 1913 the county court duly made an order calling a special election to be held by the legal voters of the county to vote upon the question of issuing bonds in the sum of $400,000 to secure funds for the purpose of opening, constructing, and repairing county roads in the county; one condition of the election being that $100,000 should be wholly utilized and expended on the county road leading from Astoria through the city of Seaside as mentioned above, and that the result was in favor of the issuance of the bonds. On March 10, 1914, the city council of Seaside passed an ordinance approved by the mayor on that date, to the effect that:

The city "declares its full and complete jurisdiction over all streets, alleys, highways, avenues, lanes and ways within the corporate limits of the city of Seaside including all ways heretofore recognized as county roads and also including all bridges connecting the various highways within the corporate limits of the city of Seaside."

Subsequently the city caused a certified copy of this ordinance to be filed with the county court which duly considered the matter and thereupon ordered that the county of Clatsop waive all jurisdiction over the streets and highways located in the city of Seaside, as described in the ordinance, and further that the waiver should not carry with it any funds or moneys which then or might afterwards be in any road fund of any road district in which the city of Seaside is situated, but that all such funds should be used upon public roads and highways outside the city limits. Later, on the assumption that the city had entire control of the county road in question, the council renamed it Seventh street, passed ordinances, one establishing a new grade thereof, and another providing for the pavement of the same, establishing curbs and drainage, and assessing the abutting property for the payment thereof, resulting in an impost upon the plaintiff's adjacent realty in the sum of $558.39. The plaintiff having refused to pay the sum, the city officers entered the claim in the official lien book of the municipality in which it is now docketed and constitutes a cloud on the plaintiff's title. He alleges that the city threatens to, and unless restrained by the court will, sell his holding in an effort to collect the money. The prayer was to the effect that the court enter a decree declaring the thoroughfare to be a county road, that the city has no control or jurisdiction thereof for the purpose of making improvements thereon and assessing the cost to adjacent property owners, and that the city be forever restrained from enforcing the lien against the plaintiff's premises. A general demurrer to this complaint was sustained by the circuit court, and, refusing to amend, the plaintiff appeals.

Edward E. Gray, of Astoria, for appellant. G. C. Fulton, of Astoria (Victor J. Miller, City Atty., of Seaside, and C. W Huntington and Richard W. Montague, both of Portland, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

The complaint states, and on demurrer it must be taken as true, that the way in question is a public county road or highway.

In Yocom v. City of Sheridan, 68 Or. 232, 137 P. 222, this court, speaking by Mr. Justice Moore, says:

"Whether the laying out or opening of a rural road is under the jurisdiction of a county court, or the establishing or maintaining of a city street is subject to the control of a common council, such highways, so far as they subserve the easement of passage and its incidents, are free and at all times controlled by legislative authority. * * * The streets of a city are not its private property, but they are for the use of the public, whose general agent is the legislative assembly, which, in the absence of any constitutional restriction, has paramount authority over such highways, including bridges thereon, and may grant the supervision and control thereof to some other governmental agency."

Similar language is used in Stoppenback v. Multnomah County, 71 Or. 493, 142 P. 832. The same doctrine is enforced in the earlier cases of Simon v. Northup, 27 Or. 487, 40 P. 560, 30 L. R. A. 171, and Brand v. Multnomah County, 38 Or. 91, 60 P. 390, 62 P. 209, 50 L. R. A. 389, 84 Am. St. Rep. 772. The teaching of these cases is that authority over highways and the prerogative of delegating the control of the same are primarily in the legislative branch of the state government. A clear distinction exists between mere streets and roads or highways. This is pointed out in the exhaustive opinion of Mr. Justice Lord in Heiple v. East Portland, 13 Or. 97, 8 P. 907, so that the charter giving to the city control of its streets does not authorize it to assume jurisdiction over the county road which happens to pass through the territory in which the town is situated.

It is conceded by counsel for both parties that the rule in this state is to the effect that, in determining whether a passageway in a city is a street or a county road, resort must be had to the intention of the Legislature as gathered from the city charter, the general laws, and the whole course of legislation on the subject. It is a matter of note that in all the reported cases hitherto decided in this state, where cities or towns have assumed jurisdiction over county roads passing through their boundaries, it has been by virtue of a charter expressly authorizing the same. For instance, in Oliver v. Newberg, 50 Or. 92, 91 P. 470, the legislative charter granted to that town gave it "full power to lay out, open, work, change and control all the highways and roads within the corporate limits thereof"; exempted the inhabitants of the city and all property therein from the payment of road taxes of any description to Yamhill county; excepted the territory within the municipal limits from the jurisdiction of the county court of that county; and vested full control of all roads and highways or parts thereof within the city limits in the town itself. A similar provision was found in the charter of East Portland under consideration in the case of Heiple against that borough, where it is said:

"The territory within the limits of the city of East Portland is hereby excepted out of the jurisdiction of the county court of Multnomah county upon the following subjects, to wit, to divide the same or any part thereof into road districts, or to appoint supervisors of road districts for any part thereof, or to lay out, open or work on the highways therein, and the inhabitants of that city shall be exempt from the payment of road taxes or the assessment of property within the said city for road work."

In Huddleston v. Eugene, 34 Or. 343, 55 P. 868, 43 L. R. A. 444, 1 Mun. Cor. Cas. 334, the legislative grant to the municipality authorized it to "open, establish and locate streets upon the roadbed of, and upon or across any county road or public highway within the corporate limits of the city of Eugene; and when so located or established, said county roads or public highways shall be and become public streets of said city and subject to jurisdiction and control of the council the same as other streets."

It was in pursuance of this that the court sustained an ordinance of the city establishing a street upon ground which had been used formerly as a county road. The general course of decision as pointed out in Bowers v. Neil, 64 Or. 104, 109, 128 P. 433, 435, is to the effect that:

"Whether a county road becomes a street when included within the corporate limits of a city depends upon the intention of the Legislature as gathered from the city charter, general laws and the whole course of legislation on the subject."

It is there said by Mr. Justice Bean:

"A county government is an arm of the state; so also is a city, acting in its public or governmental capacity, and at the time of the enactment of the several charters referred to the Legislature had power to impose upon a county the duty of building, maintaining, and repairing a bridge, on a county road within the limits of a city of the county. These municipal corporations are a part of the sovereign family, and it is appropriate that the state should direct and control their government in a manner not inconsistent with the

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