Southern Pac. Co. v. Consolidated Freightways

• Decision Date: 30 March 1955
• Citation: 281 P.2d 693,203 Or. 657
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Respondent, v. CONSOLIDATED FREIGHTWAYS, Inc., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 693

281 P.2d 693

203 Or. 657

SOUTHERN PACIFIC COMPANY, a corporation, Respondent, v. CONSOLIDATED FREIGHTWAYS, Inc., a corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued Feb. 9, 1955.

Decided March 30, 1955.

William C. Ralston, Portland, argued the cause for appellant. With him on the briefs were Phillips, Hodler & Sandeberg, Portland.

Wayne Hilliard, Portland, argued the cause for respondent. With him on the briefs were Koerner, Young, McColloch & Dezendorf and John Gordon Gearin, Portland.

Before WARNER, C. J., and ROSSMAN, TOOZE and PERRY, JJ.

WARNER, Chief Justice.

This is an action for the recovery of damages sustained by the Southern Pacific Company (plaintiff-respondent)) by reason of a collision between a freight train of the railway company and a truck and trailer operated by Consolidated Freightways, Inc. (defendant-appellant). The accident occurred on June 14, 1951, about 11 p. m. near the north line of the intersection of 12th and State streets in Salem, Oregon. Shortly before the accident occurred, the truck was moving north on 12th street some distance south of State street. When it reached the south line of State street, it came to a short stop before entering the intersection directly ahead of plaintiff's oncoming freight train. The right-hand wheels of the truck were upon or a few inches from the west rails of the railroad track. While in this position, the truck was almost immediately overtaken by plaintiff's train. From a judgment predicated upon a jury verdict in favor of plaintiff in the amount of $665, the defendant appeals.

The railroad company charged that the truck company was negligent in not having its truck under control, in failing to keep a proper lookout, in failing to heed the warning signals, in driving its truck on respondent's main tracks and in failing to yield the right of way. The principal defense of the truck company's answer rested on a claim that the train was moving at an excessive speed, contrary to Salem ordinances.

Appellant's first assignment of error claims that the court erred in striking paragraph IV of its answer. This paragraph alleged that ordinance No. 2566 of the city of Salem, approved August 6, 1929, was in full force and effect at the time of the accident and was, therefore, controlling on the subject of the speed of the train. The ordinance established a maximum speed of 20 miles per hour for locomotives and trains within the city limits of Salem. The truck company apparently depended upon the existence of this ordinance to support its further allegation that plaintiff 'operated its said freight train at an imprudent, reckless, and dangerous speed in excess of twenty (20) miles per hour.' We think there is no merit in this assignment, for the reasons that follow.

Ordinance 2566 of the city of Salem, upon which appellant relies as controlling the speed of respondent's train, is meet by respondent's representation that the power to regulate the speed of trains, delegated to the city of Salem by its legislatively-conferred charter of February 15, 1893, Charter of the City of Salem, Oregon Laws 1893, pp. 634, 639, § 6, subd. 31 was thereafter repealed by ch. 86, Oregon Laws 1947, ORS 760.050.

Appellant relies solely upon Southern Pac. Co. v. City of Portland, 227 U.S. 559, 33 S.Ct. 308, 57 L.Ed. 642, as authority for the proposition that notwithstanding the act of 1947, Salem ordinance 2566 was a valid and existing exercise of the city police powers at the time of the accident. It is not exactly clear to us from appellant's argument just what it precisely claims for the cited case. We infer that it is urged in support of an impression that the city of Salem has an inherent or irrevocable right and duty to regulate traffic and speed of vehicles on its streets and that such power is of a kind and quality beyond the reach of legislative control or repeal.

Perhaps we speculate when we suggest that appellant finds support for its idea in that part of the opinion reading, 'the city has the undoubted right to make regulations as to cars used in the transportation of local freight to and from the terminal.' 227 U.S. 574, 33 S.Ct. 308, 311. However, whether this or other statements from the case are relied upon to bolster appellant's claim, we find in that case no comfort for the truck company's position, nor facts or circumstances remotely comparable to the subsisting relationship between the city and state with reference to the respective power of either the city or the state to regulate the speed of railway carriers in city streets. The 'undoubted right to make regulations as to cars * * *', as stated by the court in the federal case, referred to a right which the city of Portland reserved to itself in 1869 when it passed an ordinance granting the predecessor of the plaintiff in this case the right to operate its cars on portions of 4th street. This right was exercised by the city pursuant to a legislative grant by the state, Bellinger & Cotton's code, §§ 5077, 5078. Subsequently in 1907 the city of Portland passed another ordinance which had the effect of exercising some of the regulatory powers which it reserved under the earlier ordinance of 1869.

The question before the court in the federal case was whether the city was properly exercising such reserved powers of regulation. The 'undoubted right' of the city to make the regulation of 1907 was in reference to the powers it had earlier reserved to itself, and not to inherent powers or powers delegated by the legislature. No question was raised, as here, as to whether the state had recouped the powers previously delegated to the city to do as it had done by its ordinance of 1869. Indeed, the powers so delegated to the cities of the state, B. & C. §§ 5077, 5078, and upon which the city of Portland relied in 1869, have never been recalled by the legislature and still continue in substantially the same form as then. See ORS 772.105.

Sections 1 and 2 of ch. 86, Oregon Laws 1947, relied upon by the railroad company as working a repeal of Salem ordinance 2566, provide:

'Section 1. The power to fix and regulate the speed of railway trains within the limits of cities and towns of less than 100,000 population is vested exclusively in the state.

'Section 2. Upon petition of any incorporated city or town or of any railroad or upon his own motion, the public utilities commissioner of Oregon shall, on behalf of the state, after due investigation and hearing, enter an order fixing and regulating the speed of railway trains within the corporate limits of cities and towns of less than 100,000 population. Any such order may relate to and include more than one such city or town or particular portions of any one or more cities and towns. The speed limits fixed by the commissioner shall be maximum speed limits and he may fix different rates of speed for different cities and towns or within different portions of any city or town, which rates of speed shall be commensurate with the hazards presented and the practical operation of the trains. When the conditions of hazard and the practical operation of trains require, the commissioner may, in the same order, prescribe the number, kind and location of warning signal devices and stop signs to be installed at grade crossings, and shall by his order require the same to be installed and determine the division of the cost of such installation and future maintenance between the railroad and the state, county, municipality or other public authority in interest, in such proportion as he may deem just and reasonable in the circumstances and in accordance with the respective benefits to be derived by the railroad and the public.'

In response to the argument of the railroad company that the act of 1947 has superseded the authority of the city of Salem in the premises, the appellant urges (1) that the public utilities commissioner has taken no action under the power vested in him by the act of 1947 and, therefore, the authority previously granted to the city of Salem continues to exist until some affirmative order is made by the commissioner; and (2) in the alternative, that the act of 1947, conferring on the commissioner power to regulate the speed of trains, is an unconstitutional delegation of legislative authority. Both propositions asserted by the appellant are without merit.

An act of the legislature which is a general law applicable to all municipalities of the same class, in this instance to all with 'less than 100,000 population', repeals by implication all charters and ordinances in conflict therewith. City of Klamath Falls v. Oregon Liquor Control Commission, 146 Or. 83, 92, 29 P.2d 564. In Burton v. Gibbons, 148 Or. 370, 379, 36 P.2d 786, 789, we said:

'* * * it is now settled that, within...