Simon v. Northup

• Decision Date: 03 June 1895
• Citation: 27 Or. 487,40 P. 560
• Parties: SIMON v. NORTHUP et al. HANSON v. HIRSCH et al.
• Court: Oregon Supreme Court

40 P. 560

27 Or. 487

SIMON v. NORTHUP et al. HANSON v. HIRSCH et al.

Supreme Court of Oregon

June 3, 1895

Appeals from circuit court, Multnomah county; H. Hurley and L.B Stearns, Judges.

Actions by Joseph Simon against H.H. Northup and others and John R Hanson against Sol. Hirsch and others. From a judgment for defendants in each case, plaintiffs appeal. Modified and affirmed.

W.W. Thayer and L.B. Cox, for appellant Hanson.

Jos. Simon, O.F. Paxton, and W.P. Lord, for appellant Simon, and also for respondents Hirsch and others.

W.D Fenton and J.F. Watson, for respondents Northup and others.

BEAN, C.J.

These two cases, which for convenience were heard together in this court, involve the constitutionality of an act of the legislature of 1895 providing for the acquisition by the city of Portland of the Morrison street bridge, Stark street ferry, and the upper deck of the steel bridge, and requiring the supervision, management, and control of said bridges and ferry, when so acquired, and of all the free bridges and ferries of the city acquired under the acts of 1891 and 1893, to be turned over to the Multnomah county court, to be thereafter supervised, managed, and controlled by said court. The provisions of the act, in brief, are: That a committee, designated as a bridge committee is thereby appointed, and charged with the duty of acquiring in the name and on behalf of the city of Portland, by purchase or condemnation, the Morrison street bridge and Stark street ferry, and of leasing the upper deck of the steel bridge, and for that purpose it is authorized to issue and dispose of the bonds of the city, not to exceed in amount the sum of $200,000. After the two bridges specified and the ferry are thus acquired and are ready for use, the bridge committee is required to turn them over to the county court of Multnomah county. The act further provides that the bridge committee appointed under the act of 1891, and which now has control of the Madison and Burnside street bridges and Albina ferry, shall immediately turn over and deliver to said court all the bridges and ferries and property connected therewith in its possession and under its control, and the county court is required to take charge of maintain, and operate the same, as well as the bridges and ferry to be acquired under this act, as free bridges and ferries, and to that end is given power and authority to employ all such agents or servants as it may deem necessary, and to make all needful rules and regulations for the conduct, management, and use of such bridges and ferries by the city, its inhabitants, and the public in general. The county court is required to levy and collect, in the manner and form as other taxes are levied and collected, a tax each year upon all the taxable property within the county sufficient, with such revenues as may be received from said bridges and ferries, to maintain and keep them in good condition and repair during the ensuing year, and to pay the annual rental for the upper deck of the steel bridge; and it is also required to levy and collect a tax sufficient to pay the interest to accrue upon the bonds authorized by this act to be issued, and also upon the bridge bonds already outstanding against the city, amounting to $550,000; and, at the expiration of 10 years from the passage of the act, the county court is required to levy and collect an additional tax, sufficient to raise a sum of money annually equal in amount to one-twentieth part of the bonds then outstanding, to be used as a sinking fund, for the purpose of paying off and retiring such bonds. It is declared by the act, however, that the bonds already issued, and those to be issued, in accordance with its provisions, are to remain as existing, valid, and binding obligations of the city of Portland, and the city is directed and required to pay, as the same matures, the interest on the bonds, and the principal thereof when due, in the event that the county court of Multnomah county fails or neglects to do so. It is further provided that the county court shall establish and maintain a free ferry across the river at Sellwood at a cost not to exceed $2,400 per annum, and for that purpose it shall cause to be used such of the ferry boats as may be acquired by it under this act. The bridge act of 1891 and the amendment thereto of 1893 are repealed. It is stoutly contended that the act in question is unconstitutional for the several reasons hereinafter noticed, and, while we are satisfied that the contention is well founded in some respects, and are conscious that in others the validity of the act is not free from doubt, yet we cannot declare it wholly void because some of its provisions are so and others are involved in doubt. The courts will never exercise the extraordinary power of declaring an act of the legislature unconstitutional unless there is a plain, palpable, and clear conflict between the statute and the constitution, which, in our opinion, does not exist in this case. King v. City of Portland, 2 Or. 152; Cook v. Port of Portland, 20 Or. 580, 27 P. 263.

In the first place, the entire act is challenged upon the ground that it is incompetent for the legislature to compel the city of Portland to incur a debt for the construction of public bridges within its boundaries, and much was said at the argument about the inexpediency and injustice of such legislation, and the effect previous legislation of this character has already had upon the financial affairs of the city. But the question is one of power alone, and, however unjust, inexpedient, or even oppressive such legislation may be, the courts are powerless to declare it invalid if it is within the legitimate exercise of legislative powers. A municipal corporation is but the creature of the legislature, and in its governmental or public capacity is one of the instruments or agents of the state for governmental purposes, possessing certain prescribed political and municipal powers, to be exercised by it on behalf of the general public rather than for itself; and over it, as such agent, the authority of the legislature is supreme, and without limitation or restriction other than such as may be found in the constitution. There is a line of authorities which hold, and perhaps properly, that a municipal corporation cannot be burdened with a debt without its consent for a matter of local, as distinguished from state, purposes. Park Com'rs v. Detroit Common Council, 28 Mich. 228; People v. Mayor, etc., of Chicago, 51 Ill. 17; People v. Batchellor, 53 N.Y. 128. But it seems to be substantially agreed that when the debt or liability is to be incurred in the discharge of some duty which is imposed upon the municipality exclusively for public purposes, and in the performance of which the general public, as distinguished from the inhabitants of the particular municipality, have an interest, it is within the power of the legislature to compel it to perform such duty and incur a debt therefor. That the making and establishment of public highways and bridges, and the assessment and collection of taxes, are within the legitimate legislative powers, and are among the ordinary subjects of legislation, cannot be questioned. Nor do we think it can be successfully denied that the bridges and ferries referred to in the act under consideration will, when acquired, belong to the city of Portland in its public or governmental capacity, and that in the acquisition of them it is but discharging a public or state duty which it is entirely proper for the legislature to impose upon it; and therefore, if there is no limitation in the constitution, it is no objection to the validity of an act for that purpose that a debt or liability against the corporation is to be created without its consent. Cooley, Tax'n, 682; Dill.Mun.Corp. § 74; Winters v. George, 21 Or. 251, 27 P. 1041; State v. George, 22 Or. 142, 29 P. 356; City of Philadelphia v. Field, 58 Pa.St. 320; Bank v. Katz, 57 Md. 145; Davis v. Railroad Co., 47 N.Y. 400. That the construction of bridges and highways in a city, and the incurring of a debt therefor, should ordinarily be left to the judgment and discretion of the proper municipal authorities is manifestly just and in harmony with the right of local self-government and the theory of our political institutions, but the policy of such legislation is not for the courts. When the power is conceded, the courts cannot inquire into the expediency or manner of its exercise, or the motives or reasons prompting the particular act. We conclude, therefore, that the act in question is not invalid because it compels the city of Portland to incur a debt, without its consent, for the acquisition of public bridges and ferries.

It is next contended that the act embraces more than one subject and therefore is in violation of section 20, art. 4, of the constitution, which declares that: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." The design of this provision of the constitution was to prevent matters wholly foreign, and having no relation to each other, from being embraced in one bill, and "this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title." People v. Mahaney, 13 Mich. 495. The subject or general object of the law in question, as expressed in its title, is the acquisition, control, and management of certain specified bridges and ferries across the Willamette river at Portland, and the details by which it is to be accomplished are matters properly connected therewith, and do not constitute more than one subject within the meaning of the constitution. Whether the body of the act contained any...