Hunter v. City of Roseburg
|156 P. 267,80 Or. 588
|HUNTER ET AL. v. CITY OF ROSEBURG ET AL.
|21 March 1916
|Oregon Supreme Court
Appeal from Circuit Court, Douglas County; G. F. Skipworth, Judge.
Suit by John Hunter and others against the City of Roseburg and others. From a decree in favor of defendants, plaintiffs appeal. Reversed and rendered.
This is a suit by several taxpayers to cancel two contracts entered into on July 15, 1915, between the city of Roseburg, party of the first part, the Roseburg & Eastern Railroad Company, a corporation, party of the second part, and the Kendall Lumber Corporation, party of the third part, and to enjoin the issuance of $300,000 in bonds. From a decree in favor of the defendants, plaintiffs appeal.
On June 3, 1915, the legal voters of the city of Roseburg amended the charter of that city. Section 156 thereof reads as follows:
Section 157 states:
The amendment further provides that the common council of the city of Roseburg is directed to enter into a contract for the construction of the railroad mentioned, and to lease the same on such terms and for such periods of time as to it may seem for the best interests of the city; and that the lease shall prescribe that there shall be no discrimination as to either rates or service in the carrying of freight or passengers. The levy of an annual tax is authorized to pay the interest on the bonds, and, thereafter, a further levy for their payment at maturity.
After the commencement of this suit the case of Pearce v. City of Roseburg, which was instituted in the circuit court on June 8, 1915, for the purpose of testing the validity of the special election mentioned, was decided by this court. See 150 P. 855. The decree of the circuit court sustaining the demurrer to the complaint was affirmed. Those matters therefore, which were included in the complaint in the former case will not be particularly mentioned herein.
The plaintiffs allege that the contracts entered into by the city and the corporations named are not valid, for the reason that they are not authorized by the charter amendment and are repugnant to article 11, § 9, of the Constitution of Oregon. It is specified that the contract does not provide for the construction of a standard gauge railroad from the city of Roseburg to a point on the North Umpqua river at its intersection with the western boundary of the Cascade Range Forest Reserve, and that the city has no authority to attempt to enter into an agreement for the construction of only a part of such railroad; that the contracts attempted to be entered into with the corporations named are illegal, an abuse of the power vested in the defendant officers of the city, and an attempt by subterfuge to tax the taxpayers of the municipality, including the plaintiffs, for private purposes, in violation of the Constitution of the state of Oregon, and that of the United States; also, that they are for the purpose of raising money for, or loaning credit of the city to or in aid of Kendall Bros., or the Roseburg & Eastern Railroad Company, or other owners of timber land along the route of the proposed railroad, in violation of article 11, § 9, of the Constitution. The prayer of the complaint is that the contracts be canceled, held for naught and that the city be enjoined from attempting to issue or sell the bonds mentioned.
As far as it is deemed necessary to recite, the substance of the main contract of July 15, 1915, now in controversy, is as follows:
The contract then provides that the city pay to the railroad company $9,000 per mile for every mile of road completed to Rock creek, ready for the rolling stock and general traffic; $4,500 per mile for work done at isolated places and disconnected portions; and $11,000 per mile for that portion of the railroad extending from Rock creek to Umpqua National Forest, when completed. The balance of the sum of $300,000 remaining in the city treasury is directed to be paid to the railroad company as soon as the railroad shall be completed to the National Forest. It is further provided as follows:
In the stipulation, the railroad company also agrees to transport all the sawlogs and other products of the forests delivered to it at any suitable point on the railroad at a reasonable rate without discrimination. The contract then states:
It is agreed that active work of construction commence within 30 days and be prosecuted diligently and continuously so far as practicable until the completion of the railroad between the city of Roseburg and Rock creek, the same to be continued to the western boundary of the Umpqua National Forest at its intersection with the North Umpqua river, so as to have it completed to that point within five years from the taking effect of the agreement, and as much sooner as there shall be any demand or opportunity for transporting sawlogs or other products of the forest from the National Forest.
It is further specified that the city of Roseburg shall have a voice in fixing the freight rates which may be charged, but does not provide that the municipality shall control the matter. In consideration of the donation of a mill site and the construction of the railroad, the lumber...
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Hunter v. City of Roseburg
...6, 1916 In Banc. Appeal from Circuit Court, Douglas County; G. F. Skipworth, Judge. Petition for rehearing. Denied. For former opinion, see 156 P. 267. Ralph R. Duniway, of Portland, for appellants. Carl Wimberly and Dexter Rice, both of Roseburg (Albert Abraham, Rice & Orcutt, and O. P. Co......