Seafeldt v. Port of Astoria

• Decision Date: 13 December 1932
• Parties: SEAFELDT v. PORT OF ASTORIA et al. [*]
• Court: Oregon Supreme Court

16 P.2d 943

141 Or. 418

SEAFELDT v. PORT OF ASTORIA et al. ^[*]

Supreme Court of Oregon

December 13, 1932

Department 1.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Suit by Albert J. Seafeldt against the Port of Astoria and others. From an adverse decree, defendants appeal.

Reversed and decree entered dismissing suit.

G. C. Fulton, of Astoria (A. C. Fulton, of Astoria on the brief), for appellants.

H. B Beckett, of Portland (Wilbur, Beckett, Howell & Oppenheimer of Portland, on the brief), for respondent.

RAND J.

This suit was brought by a taxpayer to enjoin the port of Astoria and its officers from performing a contract which it had entered into with the Tacoma Dredging Company by which it had agreed to do certain dredging work on two bars in the Willamette river, which work that company had agreed to do for the United States of America. The case is here upon an appeal from a decree enjoining the defendants from performing such work.

It appears from the evidence that on December 16, 1931, the Tacoma Dredging Company entered into a contract with the federal government to dredge two bars in the channel of the Willamette river, and that said company then entered into a contract with the port of Astoria in and by the terms of which the port of Astoria agreed to furnish to the Tacoma Dredging Company for the doing of such work its dredge and the workmen employed thereon, and to receive in payment therefor $550 for each day of twenty-four hours' continuous operation, and, in addition thereto, an allowance of $300 for the towing of the dredge to and from the place of work.

It is alleged in the complaint that the port had no power or authority to enter into the contract or to perform the same, and that performance thereof will result in loss and damage to the port.

It appears from the evidence that the place where the work is to be done is not within the limits of the port nor between its limits and the sea, but is one hundred miles or more from the situs of the port, and that to transport the dredge to the place of work will necessitate the towing of the dredge up the Columbia river to the mouth of the Willamette river, and from thence up said river to the place where the work is to be performed. Both of said streams between said points are navigable for the entire distance.

The port of Astoria is a municipal corporation. It was organized under and pursuant to the provisions of the general laws of this state, and possesses all the powers conferred by sections 65-701 to 65-1105, Oregon Code 1930, and such additional powers as are granted by sections 65-801, to 65-813, Oregon Code 1930.

It is well settled that all acts beyond the scope of the powers granted to a municipality are void, and that, in construing the extent of the powers of a municipality, any fair, reasonable, or substantial doubt as to the extent of the power is to be determined in favor of the public. City of Corvallis v. Carlile, 10 Or. 139, 45 Am. Rep. 134; Cole v. Seaside, 80 Or. 73, 156 P. 569; Chapman v. Hood River, 100 Or. 43, 196 P. 467, 470. But as said in Chapman v. Hood River, supra: "It is likewise a rule of construction that grants of power are not to be so construed as to defeat the intent of the Legislature or to withhold what is given either expressly or by necessary and fair implication."

In City of Corvallis v. Carlile, supra, Mr. Chief Justice Lord quoted with approval from Minturn v. Larue, 23 How. 435, 16 L.Ed. 574, as follows: "It is a well settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the object of the grant. ***"

In Dillon on Municipal Corporations (5th Ed.) § 237, the author says: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation-not simply convenient, but indispensable."

The powers granted to ports under the provisions of the statutes referred to are very broad and comprehensive. They are empowered to do innumerable things, as will be seen by a reading of those sections. Among those granted in express words is the power to "make all contracts, hold, receive, and dispose of real and personal property, and do all other acts and things which may be requisite, necessary, or convenient in carrying out the objects of said corporation or exercising the powers conferred upon it," etc. Section 65-707. "*** Generally to do and cause to be done all things necessary and convenient, whether herein expressed or not, to successfully carry out the powers herein granted." Subdivision 5, § 65-708. "In general to do such other acts and things as shall tend to promote the maritime shipping and commercial interests of such corporation and to acquire, hold, use, enjoy and dispose of and convey such real and personal property, and to make any and all contracts and to do any and all other acts and things which may be or may become requisite, necessary or convenient in carrying out all or any one or more of the powers in this act granted it." Subdivision 7, § 65-708.

In law ships have always been regarded as personal property and not real property. 1 Parsons on Shipping and Admiralty, 24. This dredge, of course, is not a ship in the ordinary sense of the term, but, although differing therefrom and used for an entirely different purpose, it partakes somewhat of the nature of a ship, in that it floats and is used only on water. It has none of the characteristics of land, and, in contemplation of law, like ordinary vessels, is personal property. This dredge is public property, but it belongs to the port and not to the inhabitants thereof....