Lane County v. R. A. Heintz Const. Co.

• Decision Date: 06 September 1961
• Parties: LANE COUNTY, a municipal corporation, Appellant, v. R. A. HEINTZ CONSTRUCTION CO., an Oregon corporation, and Thomas Winn and Leola E. Winn, husband and wife, Respondents.
• Court: Oregon Supreme Court

Page 627

364 P.2d 627

228 Or. 152

LANE COUNTY, a municipal corporation, Appellant, v. R. A. HEINTZ CONSTRUCTION CO., an Oregon corporation, and Thomas Winn and Leola E. Winn, husband and wife Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 11, 1961.

Reargued and Submitted April 12, 1961.

Decided Sept. 6, 1961.

William F. Frye, Dist. Atty., Eugene, argued the cause for appellant. With him on the briefs was William T. Linklater, Deputy Dist. Atty., Eugene.

Richard Bryson, Eugene, argued the cause for respondents Winn. On the briefs were Calkins & Bryson, Eugene.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

Lane County sues to enjoin the defendants from removing the topsoil of a tract of land owned by the Winns. The particular tract lies within the boundaries of the area described in Lane County Zoning and Land Use Ordinance No. 70, as adopted by the Board of County Commissioners of the plaintiff county on May 27, 1955. The defendant Heintz Construction Co. was, with the consent of the Winns, removing such material from their premises for use on a construction project in Lane County.

The Winns and the construction company separately demurred to plaintiff's complaint upon the ground that it failed to state sufficient facts to constitute a cause of suit. Both demurrers were sustained and upon want of a further pleading by the plaintiff, the court thereafter entered an order dismissing its complaint. From that order the plaintiff county appeals. Only the defendants Winn filed briefs as respondents in this court.

The county commissioners of Lane county, acting pursuant to the authority conferred by ch. 537, Oregon Laws 1947 (now codified as ORS 215.010 to 215.190, inclusive), on May 31, 1949, adopted Ordinance No. 4 as the master or basic plan for zoning certain areas in that county. It is known as the 'Zoning Plan of the County of Lane, State of Oregon.' The taxtual portion of this ordinance appears as Exhibit C to plaintiff's complaint.

ORS 215.110 contemplates the possible inclusion in such an ordinance of maps as an integral part thereof. We, therefore, find is Section I, subsection B, of the basic ordinance the following:

'This ordinance shall consist of the text hereof and maps entitled, 'Land [sic] County Zoning Maps,' and identified by the approving signatures of the County Judge, the chairman of the County Planning Commission, and the County Clerk.'

There is also attached to the complaint as Exhibit B what is thereon described as 'Lane County Zoning Map Sheet No. 2, Township, 17S, Range 3W, Willamette Meridian.'

County Ordinance No. 70 upon which the plaintiff relies appears in the complaint as Exhibit A and reads:

'In the Board of County Commissioners of the State of Oregon for Lane County

'In the matter of an Ordinance to Amend Zoning and Land Use Regulation Ordinance No. 4

'Zoning and Land Use Ordinance No. 70

'Whereas, a majority of the entire membership of the Lane County Planning Commission, after due posting of notices and public hearing on April 25, 1955 concerning the zoning of areas as described below, has voted in favor of said zoning and thereby recommends to the Lane County Board of Commissioners that the same be enacted into an Ordinance,

'Now therefore, the Board of County Commissioners of Lane County, State of Oregon, does ordain as follows:

'All of those areas lying in Sections 9, 10, 14, 15, 16, 22, 23, 24, 25, 26 and 27 in Township 17 South, Range 3 West, W.M., and Sections 18, 19, and 30 in Township 17 South, Range 2 West, W.M., bounded on the South by the City Limits of Springfield, on the North by the McKenzie River, on the West by the Brownsville Branch of the Southern Pacific Railroad and on the East by the Wendling Branch of the Southern Pacific Railroad, also that portion of Sections 19, 20, and 29 in Township 17 South Range 2 West lying East of the Wendling Branch of the Southern Pacific Railroad and West of the McKenzie River, as shown on the following Lane County Zoning Maps:

'Sheets No. 4, 9, in Township 17 South Range 2 West, W.M., and

Sheets Nos. 2, 5, 6, 7, 8, Township 17 South Range 3 West, W.M.,

'Approved by the affirmative vote of a majority of the Lane County Planning Commission this 24th day of May, 1955.

[signatures of Chairman and Secretary]

'Regularly passed and adopted by the County Board of Commissioners of Lane County, State of Oregon, this 27 day of May, 1955.

[signatures of Commissioners]'

The metes and bounds description of the land owned by the defendants Winn is set forth in paragraph III of the complaint and lies within the boundaries of Sections 9 and 10 of Township 17 South, Range 3 West, W.M., and hence constitutes but a relatively small part of all the area described in Ordrnance No. 70.

At the outset we are confronted with the problem of determining whether Ordinance No. 70 is fatally defective and void, as contended by the defendants, who urge it is indefinite and uncertain in certain vital particulars.

Certainty is one of the prime requisites of a statute. It is an essential to its validity. A statute infected with the vice of uncertainty must be pronounced inoperative and void. Bell v. State Industrial Acc. Comm., 157 Or. 653, 661, 74 P.2d 55.

An ordinance must be definite enough to serve as a guide to those who have a duty imposed upon them. See 82 C.J.S. Statutes § 68, page 117; Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 99 A.L.R. 607; Farmington Dowel Products Co., Inc. v. Forster Mfg. Co., 153 Me. 265, 136 A.2d 542, 544; State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348, 354.

We apply to ordinances of municipalities the same rules that govern the construction of statutes. State ex rel. Erickson v. Sanborn, 101 Or. 686, 693, 201 P. 430; Duncan v. Dryer, 71 Or. 548, 557, 143 P. 644; 8 McQuillin, Municipal Corporations (3d Ed.), 156, § 25.71; 101 C.J.S. Zoning § 128, page 881.

Turning to the applicable rules of law by which to test the defendants' premise, we first take note that the court is not authorized to rewrite a statute or to ignore the plain meaning of unambiguous words to correct the action of the legislature, or, in this instance, the action of the Board of County Commissioners of Lane county.

'* * * The court's province, after all, is to ascertain what the legislature intended from the language used, with such aid as may be found in the rules of interpretation and legitimate extrinsic sources; to construe statutes, not to enact them; to declare what the legislature has done, not what it should have done. * * *' Fullerton v. Lamm, 177 Or. 655, 670, 163 P.2d 941, 948, 165 P.2d 63. (Emphasis supplied.)

The rule by which courts must be guided was clearly stated by Mr. Justice Rand in Barrett v. Union Bridge Co., 117 Or. 566, 570, 245 P. 308, 309, 45 A.L.R. 527:

'Section 715, Or.L. [now ORS 174.010], directs that the courts, in the construction of statutes, are 'simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, nor to omit what has been inserted.' We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the Legislature, unless the words to be imported into the statute are, in substance at least, contained in it.'

See, also, Cabell v. City of Cottage Grove, 170 Or. 256, 272, 130 P.2d 1013, 144 A.L.R. 286.

We also observe that statutes in derogation of the common law are strictly construed. One of our earliest statements embracing that rule is found in Morton v. Wessinger, 1911, 58 Or. 80, at page 85, 113 P. 7, at page 8 and where we said:

'* * * All statutes which encroach on the personal or property rights of the individual, are to be construed strictly, and in the absence of express words or necessary intendment or implication, it will be presumed that a statute is not intended to interfere with or prejudice a private right or title. 26 A. & E.Ency. [Law] (2 ed.) 661.'

In 1957 this was repeated by the court in Moore v. Schermerhorn, 210 Or. 23, 39, 307 P.2d 483, 308 P.2d 180, 65 A.L.R.2d 715. See, also, Marsh v. McLaughlin, 210 Or. 84, 89, 309 P.2d 188.

A zoning law or ordinance is legislation in derogation of an owner's common-law right in the use of his property. It, therefore, falls within the ambit of the foregoing rule of strict construction. 1 Rathkopf, The Law of Zoning and Planning (1960), ch. 8, p. 8-1; 8 McQuillin, Municipal Corporations, supra, 160, § 25.72; 1 Yokley, Zoning Law and Practice (2d Ed.) 4, § 3; 101 C.J.S. Zoning § 129, page 884.

This doctrine of strict construction according to Rathkopf, supra, has two applications:

'* * * first, that in interpreting the language of the ordinance to determine the extent of the restriction upon use of the property, the language must be interpreted, where doubt exists as to the intention of the legislative body, in favor of the property owner, and against any implied extension of the restriction, and secondly, that in acting pursuant either to the enabling act or the ordinance promulgated under its authority, the procedural requirements of the statute or ordinance in question must have been strictly complied with.' p. 8-1.

It has been held to be particularly essential that statutes should be clear and explicit where the abrogation of a rule of common law is involved, as here. Jarvis v. Town of Claremont, 83 N.H. 176, 139 A. 747, 749.

When we scrutinize Ordinance No. 70 and read what follows the enactment clause we find only a description of all of certain areas 'as shown by the following Lane County...