Portland General Elec. Co. v. City of Estacada

• Citation: 241 P.2d 1129,194 Or. 145
• Parties: PORTLAND GENERAL ELECTRIC CO. v. CITY OF ESTACADA et al.
• Decision Date: 05 March 1952
• Court: Supreme Court of Oregon

Page 1129

241 P.2d 1129

194 Or. 145

PORTLAND GENERAL ELECTRIC CO. v. CITY OF ESTACADA et al.

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 3, 1952.

Decided March 5, 1952.

George L. Hibbard, of Oregon City, argued the cause for appellant. With him on the brief were Beattie & Hibbard, and John C. Caldwell, all of Oregon City.

H. H. Phillips, of Portland, argued the cause for respondent. With him on the brief were Griffith, Phillips & Coughlin, of Portland.

LATOURETTE, Justice.

Appeal by the city of Estacada from a decree restraining and enjoining it from including within its boundaries the 'River Mill Plant' belonging to plaintiff which the city sought to annex under ch. 210, Oregon Laws 1949. The decree held that the annexation proceedings were void as to plaintiff's property since they were instituted for the sole purpose of taxing plaintiff's land and were unreasonable and unlawful, and also enjoined the assessor and the sheriff from assessing the property and collecting taxes on it, respectively.

The city's first proposition, raised on appeal for the first time by a challenge to the sufficiency of the complaint, is that quo warranto would be plaintiff's sole remedy and that an injunction suit will not lie. The following cases are authority for the propriety of an injunction suit to test the validity of annexation proceedings: Thurber v. McMinnville, 63 Or. 410, 128 P. 43; Landess v. City of Cottage Grove, 64 Or 155, 129 P. 537; Couch v. Marvin, 67 Or. 341, 136 P. 6; Cooke v. Portland, 69 Or. 572, 139 P. 1095; Spence v. Watson, 182 Or. 233, 186 P.2d 785.

The city contends that on authority of State ex rel. v. Port of Tillamook, 62 Or. 332, 124 P. 637, quo warranto is the exclusive remedy to attack an annexation proceeding. In that case we held that quo warranto is a proper proceeding, but we did not hold that is was exclusive.

The city further urges that the above cases are distinguishable from the case at bar because in those cases the proceedings were declared void in that the cities did not comply with some essential procedural requirement. This contention is not accurate since, in several of the cases above cited, the annexation was attacked on grounds other than the validity of the machinery leading up to the election. It is true, however, that none of the cases went so far as to hold that a suit in equity would be proper in a proceeding of this kind where it was necessary to consider matters aliunde the record.

There is respectable authority in the early Oregon cases for the proposition that where a corporation is de facto rather than de jure quo warranto is the sole remedy. Since there is a wide cleavage of opinion among the members of this court as to which remedy is appropriate in the present case, we are of the opinion that on the record made we may treat this as one for a declaratory judgment under § 6-602, O.C.L.A., which follows:

'* * * Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtained a declaration of rights, status or other legal relations thereunder.';

it being remembered that the declaratory judgment statute is a remedial statute and is to be liberally construed and administered, and that questions of fact may be tried and determined as in other cases.

Since the city did not question in the lower court the bringing of the injunction suit, and joined issue and, after an adverse decision, appealed the case and now challenges, for the first time, the propriety of the same, in the interest of justice and to terminate litigation, it is our duty to decide the questions at issue on the merits, if we may properly do so.

The assessor and the sheriff have not appealed from the injunction decree against them. There remains a justiciable controversy between the parties involving the question of the proper exercise of a municipal franchise conferred on the city by the annexation statute.

In Anderson, Declaratory Judgments, 2d ed, 712, § 309, we read: 'A Declaratory Judgment will be granted even when not prayed for, but some other relief is asked, as an injunction, or where the prayer is in conjunction with a request for other relief, or where the application for other relief is abandoned, or where relief prayed for is denied. Indeed the count may of its own motion grant declaratory relief in the absence of any prayer. So too, a declaratory judgment may be made in response to a prayer for general relief, although inserted with other prayers for a different relief.'

We find in § 9-102, O.C.L.A., that, 'No cause shall be dismissed for having been brought on the wrong side of the court.'

In the case of Miles v. Veatch, 189 Or. 506, 535, 220 P.2d 511, 221 P.2d 905, it appears from the amended complaint that the plaintiffs based their cause of suit on the theory that the statute was null and void; that the enforcement of the same would result in irreparable loss and damage to them; that they had no plain, adequate or speedy remedy at law; and that the prayer prayed for a decree declaring the act null and void and perpetually enjoining the law enforcement officials from attempting to enforce the statute. We construed the proceeding as one for a declaratory judgment. On petition for rehearing, it was insisted by the plaintiff that the suit was brought as an injunction suit 'for the purpose of procuring an injunction to prevent threatened injury to their property and property rights.' [189 Or. 506, 221 P.2d 906] We said: '* * * Even if that were so, the relief sought involved an adjudication that the initiative act was unconstitutional, and therefore, was declaratory in character. 16 Am.Jur., Declaratory Judgments, § 3. The amended complaint might have been based upon either the uniform declaratory judgments act, §§ 6-601 to 6-616, O.C.L.A., or the injunction statute. We construed it as being based upon the former, by reason of the fact that it prayed for a decree 'declaring said initiative act * * * null and void in its entirety'. We were of the opinion that such a prayer indicated that the pleaders conceived that they had made a case for a declaratory decree. 41 Am.Jur., Pleading, § 110.'

Professor Borchard on Declaratory Judgments, 2d ed, said, at p. 362: '* * * Since quo warranto is a traditional writ of ancient lineage, an occasional court will conclude that it is the indicated method of trying title to office or the validity of an election or other public act. But most courts have readily perceived that the declaratory judgment is a vehicle of relief of equal effecacy with quo warranto for the determination of the rights of the parties, while having the advantage of escaping some of the restrictions of quo warranto, * * *.'

On p. 341 of Declaratory Judgments (published in 1934), Professor Borchard said: '* * * With the ever-greater interference by government in the affairs of private individuals, it often becomes important to the individual to test the validity of the interference, present or proposed, before it is applied or invoked against him. * * * As a rule, the mere enactment of a statute or ordinance imposing restraints on an individual and implying enforcement by prosecuting officials threatens and hampers the plaintiff's freedom, peace of mind or pecuniary interests, and creates that justiciability of the issue which sustains a proceeding for an injunction and, a fortiori, for a declaratory judgment.'

It is suggested that since the Attorney General was not served with a copy of the proceedings, a constitutional question being involved, we would have no jurisdiction to declare a judgment. It is true that the statutes states that the Attorney General must be served with a copy of the proceedings where, '* * * the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, * * *'. This provision becomes unimportant, however, since we have not passed on the constitutionality of the ordinance involved. See Borchard on Declaratory Judgments, 2d ed, p. 275.

In the case of School Dist. No. 1 v. School Dist. No. 45, 148 Or. 554, 570, 37 P.2d 873, 878, a declaratory judgment proceeding was instituted to determine the validity of the consolidation of two school districts. It was urged that quo warranto was the appropriate remedy, Point No. II of the appellant school district's brief being as follows: 'Only the state in a direct proceeding can attack the validity of the formation of a school district, changing the boundary lines consolidating it or annexing it to another.' In disposing of this question, we said: '* * * We think that this remedy by proceeding under the declaratory judgment law should not be denied to the parties hereto merely because a proceeding in the nature of quo warranto might also be invoked.'

In Tompkins v. District Boundary Board, 180 Or. 339, 177 P.2d 416, 419, the declaratory judgment act was invoked by a property owner to obtain an adjudication of the validity of the consolidation of various school districts, it being alleged that he would "suffer irreparable injury and the taxes on plaintiff's property will be materially increased to plaintiff's detriment" unless the election was declared illegal and void. For the first time on appeal, as in the case at bar, it was contended that quo warranto was the sole remedy to test the validity of the consolidation. We cited, with approval, School Dist. No. 1 v. School Dist. No. 45, supra. In the Tompkins case, it was asserted that under the authority of State ex rel. Hallgarth v. School District No. 23, 179 Or. 441, 172 P.2d 655, a quo warranto proceeding was the sole remedy where a de facto...