Portland & W.V.R. Co. v. City of Portland

• Decision Date: 29 November 1886
• Citation: 14 Or. 188,12 P. 265
• Parties: PORTLAND & W.V.R. CO. v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

12 P. 265

14 Or. 188

PORTLAND & W.V.R. CO. v. CITY OF PORTLAND.

Supreme Court of Oregon

November 29, 1886

Action to condemn and appropriate what is known as the "Public Levee," in the city of Portland, to the use of the plaintiff, for the purposes stated in the act of the legislative assembly of Oregon, session 1885. Judgment for the plaintiff. The city appealed. The facts are stated in the opinion.

McDougal & Bower, for appellant, Portland & W.V.R. Co.

A.H. Tanner, City Atty., for respondent, City of Portland.

LORD, C.J.

This action was brought under an act of the legislative assembly to condemn and appropriate what is known as the "Public Levee," in the city of Portland, to the use of the plaintiff for the purposes therein stated. Sess. 1885, p 100. It appears from the act that originally the piece of land in dispute was dedicated to the public use, as a levee or public landing, by Stephen Coffin, who subsequently, by deeds in 1865 and 1871, which were duly recorded, conveyed the same to the city of Portland. What right of estate remaining inCoffin after the dedication was intended to be conveyed by these deeds is not disclosed by the act or this record. It was assumed, however, in the argument and in the brief, that the city held the levee tract in trust, for the use of the public as a levee or public landing. The act itself is justly deserving of the criticism to which Mr. Justice DEADY subjected it. As he said, "it is largely a mass of senseless and redundant verbiage," and this applies directly and forcibly to all that part of the act devolving upon us to consider. See Coffin v. City of Portland, 27 F. 418.

Among other things, the levee tract is granted to the plaintiff by the act, "to be held, used, and enjoyed for occupation by track, side track, water stations, depot buildings wharves, warehouses, and such other buildings and erections of such form and manner of construction, as may be found requisite, necessary, or convenient in receiving, shipping and storing of produce, goods, wares, merchandise, and, generally, of all kinds of freight, and for use generally, and in the manner usual and ordinary for depot purposes, and, as such, to be under the exclusive management and control of the owners of said railroad," etc., and with power to sell the same "as appurtenant to said railway," etc.; and that "said company shall never charge dockage to any boat, ship, or vessel while actively engaged in receiving or discharging cargo at the wharf which may be erected on said premises," etc.

It would not be difficult to give this language a construction so as to effect a purpose which the legislature could not authorize. But it does not follow that the act is void because something might possibly be attempted under it, and seem to be covered by it, in consequence of the broad language used, which the legislature could not give a legal right to do. It is our duty, if the act will admit of a construction which will justify it, to sustain it. The intendments in favor of validity of an act of the legislature must prevail, unless its provisions are necessarily void. The main purpose and purport of the act was succinctly stated by Mr. Justice DEADY in Coffin v. City of Portland, supra, in which he said that the act was "a grant or license to the Portland & Willamette Valley Railroad Company, then and now engaged in constructing a road between Portland and Dundee; the use of the levee for a depot, and the wharves and warehouses necessary and convenient for receiving, storing, and shipping freight, on condition, among others, that said company shall not charge any vessel for 'dockage' while receiving or discharging cargo at any wharf on the premises."

It is contended, principally, (1) that the act is void in authorizing the plaintiff to do what the legislature is without power to authorize; and (2) that it is void, because the use to which the act devotes the property, or authorizes the plaintiff to devote it, is inconsistent with the use to which it is already dedicated.

The plenary power of the legislature over public corporations, except as to vested rights of property and of creditors, is indubitably established. Dartmouth College Case, 4 Wheat. 519; 2 Kent, Comm. 305. "Municipal corporations," said DILLON, C.J., "owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly, and so great a wrong, sweep from existence all the municipal corporations in the state, and the corporation could not prevent it. We know of no limitation on this right, so far as the corporations themselves are concerned. They are, so to phrase it, mere tenants at will of the legislature." City of Clinton v. Cedar Rapids & M.R. Co., 24 Iowa, 456.

But while the municipality exists, as to private property which it may have been allowed to acquire under its charter, such property is, doubtless, as much protected by the constitution as the private property of the citizen. Nor can the legislature deprive the city of such property, except it be for public use, and only then upon just compensation. But the easement or property which the city has in public streets or public places is of a different character. It is not private property of the city; nor can the city sell or use it for other than proper public purposes. The city might sell its market-house, or appropriate it to some other municipal use; but it cannot sell its streets, nor use them for other than legitimate purposes connected with such use. Over these--all streets and highways and public places and their uses--the plenary power of the legislature, in the absence of special restrictions, has been often asserted in several leading cases.

In Com. v. Erie & N.E.R. Co., 27 Pa.St. 354, BLACK, C.J., said: "The right of the supreme legislative power to authorize the building of a railroad on a street or other public highway is not now to be doubted. It has been settled, not only in England, ( Kiny v. Pease, 4 Barn. & Adol. 30,) but in Massachusetts, ( Newburyport Turnpike Corp. v. Eastern R. Co., 23 Pick. 328,) New York, ( Drake v. Hudson River R. Co., 7 Barb. 509,) and in Pennsylvania, (Philadelphia & T.R. Co.'s Case, 6 Whart. 43.) If such conversion of a street to purposes for which it was not originally designed does operate severely on a portion of the people, the injury must be borne for the sake of the far greater good which results to the public from the cheap, easy, and rapid conveyance of persons and property by railway. The commerce of a nation must not be stopped or impeded for the convenience of a neighborhood."

The interest in the use of streets and highways and public places and their uses being publici juris, the power of regulating such use is in the legislature, as the representative of the whole people. It is a part of the political or governmental power of the state, in no way held in subordination to the municipal corporation. It has therefore been held in many cases that the legislature has the power to authorize the building of a railroad on a street or highway, and may directly exercise this power, or devolve it upon the municipal authorities. Moses v. Railway Co., 21 Ill. 516; Murphy v. Chicago, 29 Ill. 279; Mercer v. Railroad Co., 36 Pa.St. 99; Springfield v. Railroad Co., 4 Cush. 63; People v. Kerr, 27 N.Y. 188; Lackland v. Railroad Co., 31 Mo. 180; City of Clinton v. Railroad Co., supra.

The decisions, however, are not entirely harmonious, where the public have only an easement in the street or highway; and in some of the cases it has been held, as against the proprietor of the soil, the use of the street or highway for the purposes of a railroad created an additional burden of servitude, which, under the constitution, he could not be deprived of without compensation, ( Ford v. Chicago & N.W.R. Co., 14 Wis. 616; Pomeroy v. Milwaukee & C.R. Co., 16 Wis. 640; Gray v. St. Paul & P.R. Co., 13 Minn. 315, [Gil. 289;] Williams v. Natural Bridge P.R. Co., 21 Mo. 580;) and this Judge COOLEY says appears to be the weight of the authority, (Cooley, Const. Lim. 549.) But where the fee of the streets is in the city corporation, and not in the adjoining owner, a different rule has been applied. Moses v. Pittsburgh, Ft. W. & C.R. Co., 21 Ill. 516; Protzman v. Indianapolis & C.R. Co., 9 Ind. 467; People v. Kerr, supra; City of Clinton v. Cedar Rapids & M.R. Co., supra; Lexington & O.R. Co. v. Applegate, 8 Dana, 289. See also Cooley, Const. Lim. 555, and notes.

It may be--it is not necessary for us to decide the question--that private citizens owning adjoining property may have such rights or estate in or to the use of streets or public places over which the power of the legislature is not supreme or plenary. Whatever their rights may be we are not...