Maxwell v. Tillamook County

• Decision Date: 14 April 1891
• Citation: 20 Or. 495,26 P. 803
• Parties: MAXWELL v. TILLAMOOK COUNTY.
• Court: Oregon Supreme Court

26 P. 803

20 Or. 495

MAXWELL v. TILLAMOOK COUNTY.

Supreme Court of Oregon

April 14, 1891

Appeal from circuit court, Yam Hill county; R.P. BOISE, Judge.

(Syllabus by the Court.)

The act entitle "An act to appropriate $10,000 to aid Tillamook county in the construction of a wagon-road from the Nehalem river, in the north end of said county, to the Fuqua tollroad, in the south end of the county, and to use $1,000 of said appropriation on a branch road from South Prairie to Netart's bay, and to create a board of commissioners to construct said work," approved February 18, 1889, is in conflict with article 4, § 23, subd. 7, of the constitution which declares that "the legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say: * * * For laying, opening, and working on highways, and for the election or appointment of supervisors." The said act is not a general law, but a special and local law, within the meaning of that clause of the constitution.

W.W Thayer, for appellant.

James McCain and George G. Bingham, for respondent.

LORD, J.

This is an action to recover from the defendant, Tillamook county the sum of $895 for services alleged to have been rendered as superintendent of construction of a public wagon-road from Nehalem to the Fuqua toll-road, in said county, with a branch road from South Prairie to Netart's bay. The complaint alleges, in substance, that by virtue of the provisions of an act entitled "An act to appropriate $10,000 to aid Tillamook county in the construction of a wagon-road from the Nehalem river, in the north end of said county, to Fuqua toll-road, in the south end of said county, and to use $1,000 of said appropriation on a branch road from South Prairie to Netart's bay, and to create a board of commissioners to construct said work," the commissioners named in the act duly employed the plaintiff on the 6th day of March, 1889, as superintendent to superintend the work on said road, at an agreed compensation of $5 per day; that under said employment, and under the direction of said commissioners the plaintiff rendered services as such superintendent upon and about the construction of said roads from the 26th day of March, 1889, to the 16th day of November, 1889, inclusive, to-wit, 179 days; that the commissioners, upon the construction of such roads, duly reported to the county court of said Tillamook county concerning the construction thereof in manner and form as required by law, and that thereby the said county became indebted to the plaintiff in the sum aforesaid, etc. An answer was filed, denying the material allegations, and further alleging that the plaintiff had filed a verified claim for a less amount ($710) for such services; that the court had examined the same, and adjudged the amount due thereon to be the sum of $300, and ordered a warrant to be drawn on the treasurer of the county for that amount, etc. The plaintiff in his reply alleged that the claim presented was in the nature of a compromise, and did not include all his services, but that he was willing to receive the reduced sum of $710, without controversy, in full, rather than incur the delay and expense of a lawsuit. Upon the case being called for trial, the counsel for the defendant moved to dismiss it for the reasons (1) that the complaint did not state facts sufficient to constitute a cause of action; and (2) that the court had not jurisdiction of the subject-matter of the action. The trial court sustained the motion, and ordered that the action be dismissed, and that the defendant recover its costs; and from the judgment entered thereon this appeal was taken.

The main question to be determined is as to the validity of the act under which the services were rendered. The contention is that the act is special and local, and, as such, in contravention of subdivision 7, § 23, art. 4, of the constitution, which provides that "the legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say: *** (7) For laying, opening, and working on highways, and for the election or appointment of supervisors." The act which is claimed to be in conflict with this provision of the constitution reads as follows: "Section 1. There is hereby appropriated out of the general fund of the state of Oregon, not otherwise appropriated, the sum of ten thousand dollars for the purpose of constructing a wagon-road from Nehalem river, in the north part of Tillamook county, to the Fuqua toll-road, in the south part of same county: provided, that one thousand dollars of said appropriation shall be expended on a road from South Prairie to Netart's bay, commencing where the above-named road crosses South Prairie. Sec. 2. That Fred Scherinzinger, A.L. Alderman, and E.W. Mills are hereby appointed commissioners and viewers to locate said road, and cause the same to be surveyed by the county surveyor. When said road or roads are located and run through the lands of any person or persons who may feel themselves aggrieved thereby, they shall have the same recourse at law as is now provided for county roads; but this latter provision shall not apply to any part of said road or roads that are now already located. When said road or roads are located and surveyed, and a plat thereof recorded in the county clerk's office, said road or roads shall not be changed or vacated except upon a petition to the county court, signed by a majority of the freeholders of the district where said change is desired. Sec. 3. The commissioners shall employ some suitable person to superintend the work on said road or roads. The salary of the said superintendent, together with the expenses of damages, viewing, locating, and surveying, shall all be paid out of the county funds of Tillamook county. The said commissioners shall report to the county court of Tillamook county, Oregon, setting forth their action concerning the construction of said road, and a full and explicit statement of their acts in constructing said road. Said report shall be made upon the completion of said road or roads." Section 4 makes provision for the payment of the $10,000 on completion of the road. Sess.Laws Or. 1889, p. 169.

It will be admitted, if this act is a special or local law, that then it comes directly within the prohibition of the clause of the constitution cited, and never had any validity whatever, for the legislature had no power to enact it. But, to determine whether an act of the legislature is special or local, it is necessary to ascertain the meaning to be given to the words "special or local," as used in the constitution. The restriction is that the legislature "shall not pass special or local laws" in the enumerated cases; that is the inhibition is directed against both "special or local laws;" and as laws may be special and not local, or they may be local and not special, it is necessary that each word receive its distinct and peculiar signification. It is not easy to define with precision the distinction between a general law and one that is special or local. In general language, a local statute may be said to be one that is operative only within a portion of a state, and a special statute is one that is applicable to particular individuals or things. Statutes are sometimes distinguished as general or local, according to whether they are intended to operate throughout the entire jurisdiction, or only within a single county or other division or place. A law which applies only to a limited part of the state, and the inhabitants of that part, is local. At common law, statutes were classified as public or general, and private or special. 1 Bl. Comm. 86. "A general or public act," says Blackstone, "is a universal rule that regards the whole community, and of this the courts of law are bound to take notice judicially and ex officio, without the statutes being particularly pleaded. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns." Under this classification, the words "public or general" and "private or special," are used synonymously. The classification of statutes as local is of later origin; for, under the common law, statutes restricted to particular localities were considered as private or special. But the distinction between public and private acts as defined by Blackstone is not quite the distinction recognized in this country, where the disposition has been, on the whole, to enlarge the limits of the class of public acts which in any way affect the community at large. Unity v. Burrage, 103 U.S. 455; Suth. St. Const. § 193. Within this view, local acts may be public or private, and are treated as public when they concern the public generally, though restricted in their operation to a local community. The distinction is important, owing to the various restrictions in the constitutions of the several states, and the division made in some of them between public or general laws, in printing the acts of their legislatures, and to be kept in mind in the examination of the authorities. Thus, in Maryland, the division of the laws as published are "Public General Laws" and "Public Local Laws." Under the constitution of that state, article 3,§ 33, inhibits the passage of local or special laws in certain enumerated cases, but the laying out of roads is not included among them; but the next sentence imposes an inhibition to the passage of special laws for any case for which provision has been made by an existing general law. In State v. Commissioners, 29 Md. 516, the case shows that an act was passed relating to roads of that county; and the contention was that the act was a special law, within the meaning of section...