McClintock v. City of Roseburg

• Decision Date: 08 January 1929
• Citation: 273 P. 331,127 Or. 698
• Parties: MCCLINTOCK v. CITY OF ROSEBURG ET AL.
• Court: Oregon Supreme Court

273 P. 331

127 Or. 698

MCCLINTOCK v. CITY OF ROSEBURG ET AL.

Supreme Court of Oregon

January 8, 1929

In Bank.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Suit by L. E. McClintock against the City of Roseburg and others. Decree of dismissal, and plaintiff appeals. Affirmed.

This suit was instituted to enjoin the city of Roseburg from issuing and selling its bonds in the amount of $25,000 for the purpose of establishing an airport near that city. The matter was submitted to the voters of said city and the bonds authorized. No question is raised in the suit regarding the legality of the election. The only part of the proceeding challenged is the right of the city to construct and maintain an airport at the expense of the taxpayers. This question is submitted under two headings: First, is the city authorized by the necessary legislation to construct and own an airport at the expense of the taxpayers? Second, is an airport a public enterprise which can be supported by taxation? The circuit court dismissed the complaint and entered judgment for defendants. Plaintiff appeals.

R. L Whipple, of Roseburg, for appellant.

Guy Cordon and Carl E. Wimberly, both of Roseburg, and M. L Hallmark, of Waldport, for respondents.

COSHOW C.J.

We think the statute is very clear and plainly authorizes municipalities to maintain and own airports. The reading of the statute is as follows:

"Sec 7091. Any incorporated city or town of this state shall have the right to appropriate any private real property, * * * for the general use and benefit of the people of said city or town, including real property, for an aviation field or park. * * *" 1925 Gen. L. 162, c. 106.

This language does not require any construction or interpretation. It does not admit of argument or controversy as to its meaning. The city, having taken the necessary steps to authorize the issuance of bonds by an appropriate amendment of its charter and ordaining the proper ordinance, is authorized to issue bonds in the sum of $25,000 for an airport, unless the purpose of establishing and maintaining an airport is private rather than public.

What is a public use is not capable of an absolute definition. A public use changes with changing conditions of society, new appliances in the sciences and other changes brought about by increased population and modes of transportation and communication. We cannot close our eyes to the great growth in the use of flying machines during the past decade. This growth has been especially noticeable during the last two or three years. We must take notice that a large quantity of mail is being daily transported into the various parts of the country. Expressage and even freight is being transported by aeroplane in large and rapidly increasing quantities. Transportation by air appears to be increasing so rapidly that we may confidently expect that soon a large portion of the mail and express will be transported by aeroplane. An airport owned by the city open to the use of all aeroplanes is for the benefit of the city as a community, and not of any particular individuals therein. It is therefore a public enterprise. Aeroplanes travel the "trackless air." The only way an aeroplane company could acquire a monopoly would be through monopolizing the airport....