Rose v. Port of Portland
| Decision Date | 16 January 1917 |
| Citation | 162 P. 498,82 Or. 541 |
| Parties | ROSE v. PORT OF PORTLAND ET AL. (PENINSULA INDUSTRIAL CO. ET AL., INTERVENERS. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.
Suit for injunction by Charles C. Rose against the Port of Portland, a municipal corporation, and R. D. Inman and others, Board of Commissioners, in which the Peninsula Industrial Company and others intervened. Decree for defendants and interveners, on sustaining demurrer to the complaint and overruling plaintiff's demurrer to the interveners' answer, and plaintiff appeals. Decree reversed, and cause remanded.
The object of this suit is to determine whether the port of Portland can lawfully expend its funds in dredging and improving Oregon slough. Hayden Island divides the waters of the Columbia river, as they move westward to the sea, so that a portion of the stream passes along the south side of the island through what is known as Oregon slough and the remainder flows through the main channel along the north side until it reaches the lower end of the island, where all the waters are again united. The lines traced by the Columbia and Willamette rivers may be likened to the letter Y. The Willamette forms one arm of the Y by flowing through the city of Portland and running in a northwesterly direction until it empties into the Columbia; and the other arm of the Y is supplied by the Columbia. The stem of the Y is drawn by the Columbia running westward from the confluence of the rivers to the sea. The arms of the Y inclose a body of land which is known as the Peninsula district and upon which many large and important industries are located. Oregon slough is in the arm of the Y formed by the Columbia river, and consequently the confluence of the two rivers is west of and below Hayden Island and Oregon slough. Many of the industries which have been established in the Peninsula district are located on or near Oregon slough, and need the use and development of the harbor in Oregon slough for the purpose of promoting their business interests. Oregon slough is within the boundary lines of the port of Portland, but it is not included within the limits of the city of Portland.
The Legislature created the port of Portland in 1891 by an act which declares in section 2 that the object of the port "shall be to so improve the Willamette river at the cities of Portland, East Portland and Albina (now united and known as the city of Portland), and the Willamette and Columbia rivers between said cities and the sea." Laws of 1891, p. 791. Afterwards, the Legislative Assembly revised all previous legislation and merged it into a single enactment which is found in Laws of 1901, p. 417, and is codified in sections 6076 to 6105, L. O. L., inclusive. Section 3 of the act (section 6078, L. O. L.) gives the port "power to so improve the harbor in the Willamette river at the city of Portland, and the channel of the Willamette and Columbia rivers between said harbor and the sea," section 4 (section 6079 L. O. L.) repeats the limitation found in section 3, when power is granted to control the Willamette river "in the harbor at the city of Portland and of the Willamette and Columbia rivers between said harbor and the sea," and the same restriction appears in the language which grants the right to make rules and regulations for the navigation and use "of said harbor in said city of Portland" or of the Willamette and Columbia rivers "between said harbor and the sea."
At an election held in 1908, the legal voters of the port adopted an initiative petition to include the power to maintain a towage and pilotage service between the port and the open sea; and in Farrell v. Port of Portland, 52 Or. 582 98 P. 145, this court ruled that the amendment was legally adopted.
Acting upon an initiative petition the legal voters of the port of Portland at an election held on November 5, 1912, attempted to amend their charter, or act of incorporation, by including the power to dredge Oregon slough, and since that time considerable sums have been expended in the improvement of that waterway. On October 5, 1916, the port commissioners directed the general manager to place a dredge in Oregon slough and proceed to make a channel of a prescribed depth. The plaintiff questions the right of the port to expend money on that intended improvement.
The complaint declares that the defendant intends to carry out the resolution passed by the commissioners, and asks that the port be enjoined from using any funds in the improvement of Oregon slough. The port demurred to the complaint, and owners of some of the industries interested in the development of the waterway intervened and answered. Their answer, in substance, avers that the improvement of Oregon slough is necessary for their enterprises, that they have contributed large sums, which have been used for improving the slough and that they made these contributions, established their plants, and made their investments in reliance upon the decision in Farrell v. Port of Portland, supra, holding that the port could amend its charter. The plaintiff demurred to the answer of the interveners. After the court sustained the demurrer to the complaint and overruled the one to the answer, the plaintiff declined to plead further, and then appealed from the consequent decree dismissing the suit.
M. E Crumpacker, of Portland, for appellant. Erskine Wood and R. W. Montague, both of Portland (Wood, Montague, Hunt & Cookingham, of Portland, on the brief), for respondents Port of Portland and its Commissioners. James B. Kerr and Omar C. Spencer, both of Portland (Carey & Kerr, of Portland, on the brief), for interveners and respondents.
HARRIS, J. (after stating the facts as above).
It is plain, and counsel for the port concede, that the legislative act of 1901 does not empower the port of Portland to improve Oregon slough, for the reason that it is outside the limits of the city of Portland, and is at a point on the Columbia river above and east of the mouth of the Willamette river, and is not any part of "the harbor in the Willamette at the city of Portland," and is no part of "the channel of the Willamette and Columbia rivers between said harbor and the sea"; and therefore no funds can be expended in the improvement of Oregon slough, unless the charter was amended in 1912. The steps taken to bring about the election and attempted amendment in 1912 were regular in all respects, and the only question involved is whether the legal voters of a port can amend their own charter. If the voters of the port cannot, on their own initiative, and without a law granting power or an enabling act which carries a continuous offer of corporate authority, legislate unto themselves power to legislate, then the charter was not amended in 1912; but, if they can legislate authority unto themselves without the aid of a law passed by the Legislature or the people of the whole state, then the charter was legally amended, and the port possesses authority to improve Oregon slough.
If the reasoning employed and the conclusion reached in State ex rel. v. Astoria, 79 Or. 1, 154 P. 399, are to govern, then that case is decisive here, for it is there held that the legal voters of a port cannot, on their own independent initiative, amend their charter. While this appeal could, without further discussion, be determined upon the authority of the latest precedent, nevertheless, on account of the immediate as well as the future importance of the questions presented, they have been examined and considered anew.
This litigation arises out of the difficulty encountered in construing two amendments to the state constitution which were adopted in 1906, and are designated as section 2, art. 11, and section 1a, art. 4. All that part of section 2, art. 11, which is material here, reads thus:
Preserving the punctuation found in the initiative petition filed with the secretary of state, section 1a, art. 4, is here set out in full:
The punctuation of the above section as it is printed in Lord's Oregon Laws is in some respects different from the punctuation found in the petition itself.
Each of the two sections is an initiated amendment, and both were adopted by the people at the same election....
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