Sears v. Steel

• Citation: 107 P. 3,55 Or. 544
• Parties: SEARS v. STEEL, State Treasurer, et al.
• Decision Date: 15 February 1910
• Court: Supreme Court of Oregon

107 P. 3

55 Or. 544

SEARS v. STEEL, State Treasurer, et al.

Supreme Court of Oregon

February 15, 1910

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by J.K. Sears, a resident and taxpayer of the State of Oregon against George A. Steel, as Treasurer of the State of Oregon and another. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit brought by James K. Sears, a citizen and taxpayer of Oregon, against the defendants respectively, as State Treasurer and Secretary of State, to enjoin the issuance and payment of a warrant under an act entitled "An act appropriating $100,000 to aid in the construction of a state road from the Pacific Ocean via Crater Lake to the Idaho boundary, and to provide for the appointment of a commission to supervise the expenditure of such money and to superintend the construction of such road." This act is found on pages 278 and 279 of the Session Laws of 1909, and is as follows:

"Be it enacted by the people of the state of Oregon:

"Be it enacted by the Legislative Assembly of the state of Oregon:

"Section 1. There is hereby appropriated out of any moneys in the hands of the Treasurer of the state of Oregon, and not otherwise appropriated, the sum of $100,000 to be expended for the purpose of aiding in the construction of a state road from the Pacific Ocean to the Idaho boundary, via Crater Lake; the first section of the road to be constructed to be from Medford, Jackson county Oregon, to the city of Klamath Falls, Klamath county.

"Sec 2. Whenever the Governor of this state shall be advised that Jackson county has appropriated the sum of $50,000 to aid the construction of a road in said county from Medford, Jackson county, to a point on the west line of the Cascade Forest Reserve, on the route to Crater Lake he shall appoint a commission to be known as the Crater Lake Road Commission, to consist of seven members, two of whom shall be residents of Jackson county, Oregon, two of Klamath county, Oregon, and thereupon twenty-five per cent. of the sum hereby appropriated shall be available for use in Jackson county, $12,500 the first year, and $12,500 for each succeeding year for three years, and upon Klamath county appropriating $50,000 to aid the construction of a road from Klamath Falls to the east line of the Cascade Forest Reserve on the route to Crater Lake, the balance of the sum herewith appropriated shall be available for use in Klamath county, $12,500 the first year, and $12,500 for each succeeding year for three years.

"Sec. 3. That said commission shall receive no compensation for their services, except their actual expenses when engaged in the business of such commission. The business of such commission shall be to co-operate with the county courts of the several counties through (which) said road passes, and the proper federal authorities in the selection of a proper and feasible route for a road that may be constructed by the federal government through the government reserve surrounding Crater Lake, and to supervise the expenditure of said sum of $100,000, appropriated by the state; the $50,000 appropriated by Jackson county; the $50,000 appropriated by Klamath county, and all other moneys provided for the construction of the said road not in the boundaries of government reserve. Said commission shall have entire charge of construction of said state road.

"Sec. 4. That such money shall be expended only upon a county road, legally extablished, and no part shall be expended for securing a right of way for said road.

"Sec. 5. That said commission shall elect a president who shall preside at all meetings and a secretary who shall keep a record of all proceedings of the commission, and accounts of all moneys received and expended by the commission, and shall make a quarterly report of all the transactions of the commission, to be filed in the office of the Secretary of State.

"Sec. 6. That all moneys appropriated hereunder shall be paid out by the Treasurer of the state upon warrants of the Secretary of State upon the orders or vouchers of the commission, signed by the president and secretary.

"Sec. 7. The commission shall make all needful rules or regulations for the transaction of business and its places of meeting shall be Medford, Jackson county, Oregon, or at Klamath Falls, Klamath county, Oregon. Four members of the board shall constitute a quorum for the transaction of business, but a less number shall adjourn from time to time.

"Sec. 8. If a vacancy occurs in said commission, the Governor shall fill the same by appointment.

"Filed in the office of the Secretary of State February 23, 1909."

The complaint alleges that the Governor has been advised by the officials of Jackson county that said county has appropriated $50,000 to aid the construction of a road in said county from Medford to a point on the west line of the Cascade Forest Reserve on the route Crater Lake, and that the Governor of the state has, in accordance with section 2 of said act, appointed a commission of seven members, two from Jackson county and two from Klamath county, known as the "Crater Lake Road Commission," to supervise the expenditure of said sum of $100,000 and the sum of $50,000 appropriated by Jackson county, and the sum of $50,000 to be appropriated by Klamath county, and that said commission has duly organized and elected a president and entered upon the discharge of its duties; that the defendant Benson, as Secretary of State, threatens to, and will unless restrained, draw warrants upon vouchers issued by said commission and that the Treasurer will pay the same; that said act is in contravention of section 7 of article 11 and section 23 of article 4 of the Constitution of the state of Oregon; that the sole purpose of said act is to assist the counties of Jackson and Klamath in constructing an automobile and carriage road from Medford to Crater Lake and from Klamath Falls to Crater Lake for the use of tourists and pleasure seekers, and not for the purpose of constructing a state road from the Pacific Ocean to the Idaho boundary. After interposing a general demurrer, which was overruled, the defendants answered, denying generally every allegation of the complaint except the passage of the act and the proceedings had thereunder, and further setting up, by way of affirmative defense, the following facts:

"That by the terms of said act the Legislative Assembly of the state of Oregon contemplated the construction of a state road from the Pacific Ocean to the Idaho boundary via Crater Lake, the first section of which was to be constructed from Medford, Jackson county, Oregon, to the city of Klamath Falls, Klamath county, Oregon. That the construction of said road will, when completed, connect the Pacific Ocean by the way of Curry, Josephine, Jackson Klamath Lake, Harney, and Malheur counties with the state of Idaho, and will, when completed, enable communication by way of such highway to be conveniently, economically, and effectively made between the counties of Curry, Josephine, and Jackson west of the Cascade Mountains to the counties of Klamath, Lake, Harney, and Malheur particularly, east of the Cascade Mountains, and in general with the entire portion of the state of Oregon east of the Cascade Mountains. That the said Cascade Mountains are a rugged chain of mountains separating the two sections of the state of Oregon, leaving about one-third of the state west thereof and about two-thirds of the state east thereof, and that the said contemplated road will, when constructed, pass over, through, and along the most practicable available route between said respective sections of the state, and will afford to the inhabitants of said state and of the state of Idaho and to the general public the only available, practical, direct highway between said sections, connecting the Pacific Ocean with the state of Idaho.

"That the said counties of Malheur, Harney, Lake, and Klamath, and the said counties of Curry and Josephine are largely undeveloped, and without the construction of such highway will be practically inaccessible; that there is now no railway communication from any portion of Western Oregon to any portion of Eastern Oregon, excepting by way of the Columbia river on the northern boundary of said state, and that there is no railroad into the entire Southern Oregon territory excepting a railroad from the city of Portland to San Francisco, passing through the southwest portion of Jackson county and the northwest portion of Josephine county, and that the only railroad in Southern Oregon, other than this, or in any part thereof, is a portion of the California Northeastern Railway line leading from Weed, in Siskiyou county, in the state of California, to Klamath Falls, now under construction and about to be opened for transportation, which said line of road of the California Northeastern Railway Company extends into said Klamath county to Klamath Falls, a distance of approximately twenty miles.

"That said highway so to be constructed will pass over and across the Crater Lake National Park, situated in Klamath county a small portion of which is situated in Douglas county, Oregon, which said Crater Lake National Park was credited by act of Congress approved May 22, 1902 (Act May 22, 1902, c. 820, 32 Stat. 202 [U.S.Comp.St.Supp.1909, p. 617]), and constitutes a tract of land bounded on the north by the parallel 43 degrees 4 minutes north latitude; south by 42 degrees 48 minutes north latitude; east by the meridian 122 degrees west longitude; and west by the meridian 122 degrees 16 minutes west longitude, having an area of 249 square miles in the state of Oregon, and including Crater Lake, which said Crater Lake National Park is under the...