Rockhill v. Benson

• Decision Date: 20 July 1920
• Citation: 97 Or. 176,191 P. 497
• Parties: ROCKHILL v. BENSON ET AL.
• Court: Oregon Supreme Court

191 P. 497

97 Or. 176

ROCKHILL v. BENSON ET AL.

Supreme Court of Oregon

July 20, 1920

In Banc.

Appeal from Circuit Court, Douglas County; G. F. Skipworth, Judge.

Suit by S. H. Rockhill against S. Benson, E. E. Kiddle, and R. A Booth, constituting the State Highway Commission, and others. From judgment for plaintiff, defendants appeal. Reversed, and suit dismissed.

Plaintiff a taxpayer in Douglas county, brings this suit against the state highway commission, H. J. Hildeburn, a contractor, and other nominal defendants, to enjoin the location of the Pacific Highway as the commission is attempting to construct the same from Myrtle Creek, in said Douglas county, south toward Canyonville. It seems that, prior to the creation of the highway commission, there were two public roads leading from Myrtle Creek to Canyonville, both of which had been in existence as public highways for some considerable length of time. Both of these roads follow the general course of the valley of the South Umpqua river. One of them, however diverged from the other and crossed the river a few miles south of Myrtle Creek, and continued on the west side of the river, through Riddle and across Cow creek, to Canyonville. The other road kept to the east side of the river until about opposite Canyonville, and then crossed to that place. The latter road was known as the "old stage road."

The Pacific Highway, as the highway commission is now attempting to construct the same, does not exactly follow either of these roads, but keeps along the old stage road, or near its general course, after leaving the point of divergence between the two old roads, and finally leaves that road and crosses the Umpqua river to the west side, some three or four miles nearer to Canyonville, and then continues up to that place on the west side of the river. This new route is generally known as the "cut-off," and is something over two miles shorter than the route by way of Riddle. It also seems from the evidence to have considerably less elevation to overcome and to have fewer "ups and downs." It is claimed on behalf of the highway commission that it is shorter and considerably cheaper in its ultimate construction and completion as a paved road, and that it has a better grade. On the other hand, it is claimed on behalf of the plaintiff that the Riddle road will cost less to grade, will save the expense of building one new bridge, and will accommodate a greater number of local people.

The original highway commission was created by the Legislature in 1913. It appears from the evidence that shortly thereafter a truck, loaded with highway signs, went through Douglas county and placed some of these signs at different points along the road passing through Riddle, and thereafter the road through Riddle seems to have been known, locally at least, as the "Pacific Highway." There is no competent evidence however, as to under what authority the persons putting up the signs and locating them acted, or that the placing of the signs was authorized by the commission. It is conceded in the brief of respondent that there was no other official action designating the Pacific Highway through Douglas county by the old original highway commission.

In 1917 the Legislature (chapter 237) repealed the act of 1913 (chapter 339) and created a new commission. Afterwards the highway engineer prepared a rough general map of the highways of the state and their locations. This map showed the Pacific Highway as running through Riddle. Afterwards this map was approved by the highway commission as a general map, with certain reservations. The resolution approving the same was as follows:

"A map showing the state highways, together with descriptions showing their terminal points and important places touched along the line, was presented to the commission for approval. After some suggested changes the map was approved as outlined; it being understood, however, that the definite selection of a number of highways shown on the map will not be determined upon until after location surveys have been completed."

Prior to this time, and in the year 1915, the highway engineer under the old commission had made two surveys of this part of the route; one running along the "cut-off" line and the other along the road running through Riddle. These surveys were known as the "Peters surveys." Finally in 1919 the commission definitely adopted the "cut-off" route, leaving Riddle to one side, and proceeded to let a contract to the defendant Hildeburn for the grading of the same.

Prior to this time there had been some negotiations and perhaps some bickering between the county court of Douglas county and Mr. Benson, chairman of the highway commission, as to the location of the route, and it is claimed on behalf of the plaintiff that there was an understanding between the county court and Benson that the road should be routed by way of Riddle, and that the county court of Douglas county expended considerable sums of money in improving portions of said highway and preparing it for permanent paving by the highway commission upon that understanding.

It is claimed on behalf of the plaintiff that the cut-off route is largely a new road, and that the highway commission has no authority to lay out or create new roads where county roads already exist, but are confined to the selection of existing roads; that the Riddle road was definitely designated as the Pacific Highway by the act of the Legislature; that the highway commission is estopped from routing the Pacific Highway on any road except through Riddle, by the understanding between the county court and Mr. Benson, the chairman of the commission; that the contract for grading the road is void, because the rights of way had not been obtained at the time of letting the contract; and, finally, that there was an abuse of discretion upon the part of the highway commission in attempting to locate the road over the "cut-off" route.

J. M. Devers, of Salem, and Jay Bowerman, of Portland (Geo. M. Brown, Atty. Gen., and O. P. Coshow, of Roseburg, on the brief), for appellants.

Rice & Orcutt, of Roseburg (Ira Riddle, of Roseburg, on the brief), for respondent.

John W. Kaste, of Portland, amicus curiæ.

BENNETT, J. (after stating the facts as above).

The main contention on the part of the plaintiff and respondent, and the one upon which the court below rested its decision in plaintiff's favor, is that the highway commission has no authority to create or lay out a new road, but that that authority is vested exclusively in the county courts, and the highway commission can only designate or adopt roads which are already county roads and public highways, as a part of the state system of roads.

In its conclusion that the highway commission had no power to designate or lay out a road for a state highway, where there was no public road before, we think the court below erred. The contention of respondent in this regard is based upon two grounds:

First. That any attempt on the part of the Legislature to grant such power to the highway commission to create or establish a new road would make the law special and local, and be in conflict with section 23, article 4, of the Constitution of the state of Oregon, which provides that the legislative assembly--

"shall not pass special or local laws * * * for laying out, opening, and working on highways, and for the election or appointment of supervisors."

Second. That the Legislature did not, by the act of 1917, and the succeeding act of 1919, attempt or intend to confer any such power to create new highways or portions of new highways upon the highway commission.

As to the first proposition, we do not think that the act of the Legislature in question was in conflict with the constitutional provision in question. It is now well settled that all power of legislation belonging to the people is vested in the Legislature, unless such power is restricted and limited by some constitutional provision. Of course, it follows that in the first instance the power to create roads, and to regulate and control them, to lay them out, or change or vacate them, is vested in the Legislature, and it may do any of these things fully and freely, and in any manner it may see fit to adopt, unless restricted by the Constitution itself.

It will also be noticed that the constitutional provision in question does not in any way restrict or limit the general power of the Legislature in relation to roads and highways, but is only directed toward the manner in which that power shall be exercised. The Constitution does not say that the Legislature cannot create highways, or change highways, or lay out highways, or that such power shall be vested in the county courts, or in any other tribunal. It only provides that the Legislature shall not take such action by special or local laws.

In this case we think that both the provisions and the purpose of the laws in question were general, and not local or special. The act of 1917 provides for a general system of state highways, consisting of trunk roads along the main routes of travel and commerce, with branch lines extending out into every portion of the state. It provides for a highway commission, whose power, authority, and duty are not confined to any one person or thing, or to any one county or place, but are general and extend to every hamlet and neighborhood in the state. The fund to provide for this highway system is also general, and is raised by general taxation and general license provisions.

The courts have found much difficulty sometimes, in close cases in distinguishing between general laws on the one hand, and local and special ones upon the other; but here the act is so broad in its scope, so general in its nature,...