Dix v. Port of Port Orford

• Citation: 131 Or. 157,282 P. 109
• Parties: DIX ET AL. v. PORT OF PORT ORFORD ET AL.
• Decision Date: 19 November 1929
• Court: Supreme Court of Oregon

282 P. 109

131 Or. 157

DIX ET AL. v. PORT OF PORT ORFORD ET AL.

Supreme Court of Oregon, En banc.

November 19, 1929

Appeal from Circuit Court, Curry County; J. T. Brand, Judge.

Suit by George E. Dix and others against the Port of Port Orford and others. Decree for plaintiffs, and defendants appeal. Reversed and rendered.

J. C. Johnson, of Gold Beach, for appellants.

BELT J.

The defendant port of Port Orford appeals from a decree enjoining it from selling or conveying certain dock and wharfage property to the Inman Lumber & Development Company pursuant to the terms of a written contract. The case is submitted solely on the brief of appellant, although it involves principles of grave importance to the public, if not the plaintiffs. In many jurisdictions the failure of respondent to file a brief is looked upon as a confession of error. 3 C.J. 1446. Under the rules of this court, it is a waiver of the right to be heard. Johnson v. White, 60 Or. 611 112 P. 1083, 119 P. 769.

In 1919, the defendant port of Port Orford, a municipal corporation, was organized pursuant to and by virtue of chapter 3 of title XLI, Or. Laws. Its primary object and purpose as declared in the act was to promote "maritime shipping and commercial interest of such corporation." Section 7163, par. 7. From the proceeds of a bond issue of $55,000 authorized by vote of the people, the board of commissioners of the port purchased a dock site and thereafter erected a wharf where a toll was charged for goods and commodities shipped to or from the port. At the time the port engaged in this commercial enterprise, Curry county was a comparatively isolated section of the state, and there was grave need of establishing communication with the business world. The day of good roads had not yet dawned. A few years later, however, the wonderful Roosevelt Highway was completed in the northern part of Curry county. As a result, the business of the port materially decreased. In fact, trucks invaded the field of transportation to such an extent that the revenues of the port were not sufficient to cover maintenance and operating expenses. Taxes on account of bond issue became a vexatious burden. By reason of statutory limitation of indebtedness, additional funds could not be secured to repair or improve greatly impaired docking facilities. The situation became so acute that the board of commissioners, in April, 1927, entered into a written contract with the Inman Lumber & Development Company a corporation engaged in the lumber business, whereby it agreed to sell the dock and wharf, together with certain equipment and easements used in connection therewith, at a price of $60,000, a sum sufficient to retire outstanding bonds. The plaintiffs, who are landowners and taxpayers of the port, thereupon instituted this suit to enjoin the sale.

Did the commissioners have authority to sell this property? There is no indication of fraud or that the purchase price was inadequate. The port, by virtue of section 7162, Or. L., had the power to "make all contracts, hold, receive and dispose of real and personal...