Rorick v. Dalles City

• Decision Date: 08 July 1932
• Citation: 140 Or. 342,12 P.2d 762
• Parties: RORICK v. DALLES CITY. [*]
• Court: Oregon Supreme Court

12 P.2d 762

140 Or. 342

RORICK v. DALLES CITY. ^[*]

Supreme Court of Oregon

July 8, 1932

In Banc.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

Suit by J. T. Rorick against Dalles City for an injunction. From the decree, plaintiff appeals.

Reversed and remanded.

Sam E. Van Vactor, of The Dalles, for appellant.

Celia L. Gavin, of The Dalles, and John W. Shuler, of Portland (Teal, Winfree, McCulloch & Shuler, of Portland, on the brief), for respondent.

B. S Huntington, of Portland (Huntington, Wilson & Huntington, of Portland, on the brief), amici curiæ.

RAND. J.

This is a suit by plaintiff, a taxpayer, to enjoin the defendant Dalles City, a municipal corporation, from issuing and selling bridge bonds aggregating the sum of $650,000, the proceeds of which are to be used in the construction of a tollbridge over and across the Columbia river. The proposed bonds are to be issued pursuant to chapter 173, p. 239, Laws 1931, and their issuance and sale has been authorized by a majority of the legal voters of the city at an election held pursuant to that act.

The ground alleged in the complaint for injunctive relief is that, by their issuance and sale, the city will create a bonded indebtedness in excess of the amount allowed by law.

Section 56-2301, Oregon Code 1930, provides: "Where no lesser limitation has been otherwise provided by law or charter, no city or town shall hereafter issue or have outstanding at any one time bonds in excess of 10 per cent. of the assessed valuation of the property within its boundaries, after deducting from outstanding bonds such cash funds and sinking funds as are applicable to the payment of the principal thereof; provided, that this act shall not apply to bonds issued for water, gas, power, or lighting purposes, nor to bonds issued pursuant to applications to pay assessments for improvements in instalments under statutory or charter authority; provided further, that this act shall not affect the right of any city or town to issue bonds heretofore legally voted and authorized nor the right to refund bonds now outstanding to the extent that sinking funds shall not be available at maturity to retire such bonds."

In its answer the city admits that the total of the assessed valuation of property within the city is $5,353,328.22; that its total bonded indebtedness is $357,500; and that, after deducting therefrom all moneys applicable to the payment of the same and all bonds which are not subject to the limitation, there still remains outstanding a bonded indebtedness as to which the limitation does apply of $274,549.85, which, when deducted from an amount equal to 10 per cent. of the assessed valuation, leaves only $320,782.97 for which additional bonds may be issued if subject to said limitation.

The city, however, contends that these bonds are not within the limitation of section 56-2301 for the reason: (1) That the express authority granted by the 1931 act, authorizing cities to construct tollbridges over interstate waters and to borrow moneys for that purpose and to issue bonds therefor, implies the authority to issue bonds for whatever amount may be required to effectuate that purpose, and hence repeals by implication the limitation imposed by the first-mentioned statute; and (2) that the proposed bonds will create a lien on the revenues of the bridge only and not an indebtedness against the city except for future installments of interest which, it is contended, until due and payable, are not debts and hence not within the limitation.

In this connection it is only proper to say that the limitation relied upon by plaintiff is a statutory and not a constitutional limitation, and hence is one which may be changed or be entirely dispensed with at the will of the Legislature. So far as material to these questions, the 1931 act provides:

"Section 1. Incorporated cities and towns of the state of Oregon hereby are authorized to construct, maintain and operate toll bridges over rivers and bodies of water forming interstate boundaries, and for such purpose may borrow money and issue and sell bridge bonds, as hereinafter provided, to evidence such indebtedness."

"Section 10. The proceeds of all the bonds sold under this act shall be paid into the city treasury and shall go into a special bridge fund and form a part of said fund, and be disbursed for the purposes for which said bonds are issued."

"Section 11. Tolls shall be fixed, charged and collected for passage over said bridge and shall be so fixed and adjusted as to provide a fund sufficient to pay the principal and interest of the bonds issued for such bridge and provide an additional fund to pay the cost of maintaining, repairing and operating such bridge, which tolls, except such part thereof as may be necessary to pay such cost of maintaining, repairing and operating said bridge, shall be placed in a special fund, which hereby is pledged to and charged with the payment of such bonds and the interest thereon. Should the tolls and revenues procured for the use of such bridge be insufficient to pay the cost of maintaining, repairing and operating such bridge and the interest and principal upon bonded indebtedness, as the same accrues, the city council shall have and hereby is given authority to each year levy and collect taxes upon all property, real and personal, situated within the boundaries of the municipality and which is by law taxable for state and other purposes, sufficient to provide for such deficit; subject, however, to charter provisions and the provisions of the constitution of the state of Oregon with respect to debt limitations."

This act contains no repealing clause, and hence, if the limitation of the former statute is repealed, it is by implication only. It is a rule of general application that whenever power is given by statute, everything necessary to make it effectual or which is essential to the exercise of the power is given by implication, and whatever is implied by a statute, whether in the way of a grant or of a restriction or of a condition, is as much a part of the enactment as what is expressed therein. Endlich, Interp. of Stat. §§ 417, 418; 2 Sutherland, Stat. Const. § 563; Burrell v. City of Portland, 61 Or. 105, 121 P. 1; Pioneer Real Est Co. v. Portland, 119 Or. 1, 247 P. 319. It is also a general rule of application that repeals by implication are not favored in law. It is only when the provisions of two acts are so wholly repugnant that the two cannot stand together that the courts are justified in applying the exceptional doctrine of repeals by implication. Potter's Dwarris, §§ 154, 155, and cases there cited; Winters v George, 21 Or. 251, 27 P. 1041; Strickland v Geide, 31 Or. 373, 49 P. 982; In re Booth's Will, 40 Or. 154, 61 P. 1135, 66 P. 710; Cunningham v. Klamath Lake R. Co., 54 Or. 13, 101 P. 213, 1099; Pacific Elevator Co. v. Portland, 65 Or. 349, 133 P. 72, 46 L. R. A. (N. S.) 363; Portland v. Portland Ry., L. & P. Co., 80 Or. 271, 156 P. 1058; Killingsworth v. Portland, 93 Or. 525, 184 P. 248; Miller v. School Dist. No. 1, 106 Or. 108, 211 P. 174.

When additional powers are conferred by a statute upon a subordinate agency of the state, the power must be exercised in conformity to the general law of the state as it then exists, unless the statute granting the power provides to the contrary. In considering the 1931 act, it must be presumed that the...