Cook v. Port of Portland

• Decision Date: 08 July 1891
• Citation: 27 P. 263,20 Or. 580
• Parties: COOK v. PORT OF PORTLAND.
• Court: Oregon Supreme Court

27 P. 263

20 Or. 580

COOK v. PORT OF PORTLAND.

Supreme Court of Oregon

July 8, 1891

Appeal from circuit court, Multnomah county; LOYAL B. STEARNS Judge.

STRAHAN C.J., dissenting.

Dolph Bellinger, Mallory & Simon, for appellant.

Ellis G. Hughes, for respondent.

BEAN J.

This suit involves the constitutionality of an act of the legislative assembly of this state entitled "An act to establish and incorporate the Port of Portland, and to provide for the improvement of the Willamette and Columbia rivers in said port and between said port and the sea." Laws 1891, p. 791. This act, in terms, creates a separate district, with defined boundaries, which embraces substantially what was at the time of the passage the cities of Portland, East Portland, and Albina, and now the city of Portland, to be known as the "Port of Portland," and the inhabitants thereof are constituted and declared to be a corporation by the name and style of the "Port of Portland," and as such to have perpetual succession, and by said name to exercise and carry out all the corporate powers and objects by said act conferred and declared, make all contracts, hold, receive, and dispose of real and personal property, such as may be necessary, requisite, or convenient in carrying out the objects of said corporation as therein set out and expressed, and sue and be sued, plead and be impleaded, in all actions, suits, and proceedings brought by or against it. By said act it is declared that the object, purpose, and occupation of such corporation shall be to so improve the Willamette river at the cities of Portland, East Portland, and Albina, and the Willamette and Columbia rivers between said cities and the sea, as that there shall be made and permanently maintained therein a ship channel of good and sufficient width, and having a depth at all points at mean low water, both at said cities and between said cities and the sea, of not less than 25 feet. So far as is necessary, requisite, or convenient to carry out the said object, this corporation is given full control over said rivers at and between said cities and the sea, so far and to the full extent that this state can grant the same, and in carrying on said work is given the same power of eminent domain as exists under the laws of this state in favor of corporations organized for the construction and operation of railroads. For the purpose of providing funds necessary for such improvement said corporation is authorized from time to time to borrow money in such sums as may be found necessary, not exceeding the sum of $500,000, and to issue its promissory notes or bonds therefor; and is given power to assess, levy, and collect taxes upon all property, real and personal, within its boundaries, and which is by law taxable for state and county purposes, not exceeding the rate therein provided. The power and authority given to the corporation, the Port of Portland, is vested in and to be exercised by a board of commissioners, named therein, and their successors in office, chosen as in said act provided, who shall serve without salary or compensation, except for actual expenses incurred by any commissioners while engaged in the actual work of the corporation.

At the outset it is well to observe that every court approaches with hesitancy the question of declaring a law unconstitutional, and never exerts its power so to do while doubt exists. Every intendment must be given in favor of its validity. As was said by LORD, J., in Cliue v. Greenwood, 10 Or. 241: . v. Peters, 5 Cranch,

128; Chief Justice PARSONS in Kendall v. Kingston, 5 Mass. 534; Chief Justice TILGHMAN in Smith v. Insurance Co., 3 Serg. & R. 72; Chief Justice SHAW in Inhabitants of Norwich v Commissioners, 13 Pick. 61, and Chief Justice SAVAGE in Ex parte McCollom, 1 Cow. 564,--have with one voice declared that it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts be considered void. The opposition between the constitution and the law should be such that the people feel a clear and strong conviction of their incompatibility with each other." Keeping these views in mind, we proceed to the examination of the question before us. It is first contended by plaintiff that the act incorporating the defendant, the Port of Portland, is repugnant to section 2 of article 11 of the constitution, which provides that "corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes." Under this section there can be but one question: What is a corporation created for municipal purposes? No corporation can be created by special act except for municipal purposes, but there is no limitation on the creation of corporations for municipal purposes by special act. Any corporation for municipal purposes may therefore be thus created. If, then, the Port of Portland is a corporation created for municipal purposes, the act creating it is not repugnant to this section of the constitution. The whole question, therefore, turns upon the meaning of the phrase "municipal purposes," as used in the constitution. The word "municipal" is defined by the lexicographers as belonging to a city, town, or place; having the right of local government; belonging to or affecting a particular state or separate community; local; particular; independent. It is usually applied to what belongs to a city, but has a more extensive meaning, and is in legal effect the same as public or governmental, as distinguished from private. Burrill, tit. "Municipal." Thus we call municipal law not the law of a city only, but the law of the state. 1 Bl.Comm. 44. Municipal is used in contradistinction to international. Thus we say an offense against the law of nations is an international offense, but one committed against a particular state or separate community is a municipal offense. And so are municipal affairs public affairs, and municipal purposes are public or governmental purposes, as contradistinguished from private purposes. A corporation, therefore, created for municipal purposes, is a corporation created for public or governmental purposes, with political powers to be exercised for the public good in the administration of civil government, whose members are citizens, not stockholders; an instrument of the government, with certain delegated powers, subject to the control of the legislature and its members, officers, or agents of the government for the administration or discharge of public duties. A city, or purely municipal corporation, is perhaps the highest type of a corporation created for municipal purposes, because it is a miniature government, having legislative, executive, and judicial powers; but there is another class of corporations, such as counties, school-districts, road-districts, etc., which, though varying in application and peculiar features, are but so many agencies or instrumentalities of the state to promote the convenience of the public at large, and are, in the broadest use of the term, for municipal purposes. It would be a narrow and unwarranted construction of the language to say that "municipal purposes" means only city, town, or village purposes. The constitution of this state evidently contemplates the creation of counties under the direct supervision of and by special act of the legislature, yet no direct power is given to create them, and the section under consideration contains a direct prohibition against doing so, unless the word "municipal" covers this class of corporations. We thus perceive that the word "municipal" not only applies to cities, towns, and villages, but has a broader and more general signification relating to the state or nation. And therefore the words "municipal corporations," as applied to incorporated cities or towns, and "municipal purposes," are not synonymous. The latter embrace, by the common speech of men before and since the days of Blackstone, state or national purposes. And therefore, while cities, towns, and villages are for municipal purposes, there are also other corporations for municipal purposes that are not of that class. It was in the broader and more general sense of the term that the words "municipal purposes" were used in the constitution of this state. This is evident from section 9 of the same article of the constitution, wherein it is provided that no county, city, town, or other municipal corporation, by a vote of its citizens or otherwise, shall become a stockholder in any joint-stock company, corporation, etc. Here is a direct interpretation from the constitution itself. A municipal corporation is not necessarily a county, city, or town. Were it so, the added words, "or other municipal corporations,"...