State ex rel. Mullins v. Port of Astoria

• Citation: 79 Or. 1,154 P. 399
• Parties: STATE EX REL. MULLINS, DIST. ATTY. v. PORT OF ASTORIA ET AL.
• Decision Date: 11 January 1916
• Court: Supreme Court of Oregon

154 P. 399

79 Or. 1

STATE EX REL. MULLINS, DIST. ATTY. v. PORT OF ASTORIA ET AL.

Supreme Court of Oregon

January 11, 1916

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by the State, on the relation of C. W. Mullins, District Attorney of Clatsop County, against the Port of Astoria, a municipal corporation, and G. B. McLeod and others commissioners of the Port. From a decree dismissing the suit plaintiff appeals. Affirmed.

In 1909 the Legislature enacted a law--

"to provide for incorporation under general law of ports in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea, and to provide for the manner of incorporating such ports and defining the powers of ports so incorporated."

The statute appears as chapter 39 in Laws of 1909, and is codified in L. O. L. from section 6114 to 6125, inclusive. The purpose of the Legislature is accomplished by providing for a petition, an election, a canvass of the votes, and a proclamation of the result of the election. It is stated in section 6120, L. O. L., that from and after the date of the proclamation made by the county court the territory--

"embraced within the limits defined in such proclamation shall be a separate district to be known as the port whose name is specified in such proclamation, and the inhabitants thereof shall be a corporation by the name and style of the port specified in such proclamation, and as such shall have perpetual succession, and by the said names shall exercise and carry out the corporate powers and objects hereinafter conferred and declared."

Under the terms of section 6121:

"Such corporation shall have power": (1) To improve all bays, rivers, and harbors within its limits and between its limits and the sea; (2) to contract with the government of the United States to do any part of the work of making or maintaining such a depth of water as the government of the United States may from time to time determine to make or maintain; (3) to exercise the right of eminent domain in carrying on any work which the port is authorized to do (4) to exercise control of all bays, rivers, and harbors within their limits, and between their limits and the sea with the power to make, change, or abolish wharf lines and "to make, establish, change, modify or abolish such rules and regulations for the use or navigation in such harbors and rivers, or the placing of obstructions therein or the removal of obstructions therefrom, as it may deem convenient, requisite or necessary or in the best interests of the maritime shipping and commercial interests of the said port, and the said rules and regulations so made by it to be enforced by such fines, penalties, and punishments as it in the exercise of sound discretion may deem necessary; and the fines or penalties so imposed or levied shall be recovered in the name of said corporation in any court of this state having jurisdiction of actions for the recovery of fines and penalties imposed by state laws, and shall inure and belong to said corporation, and all punishments so imposed shall be enforced in the name of said corporation in any of the courts of this state having jurisdiction of crimes and misdemeanors under said laws"; (5) to establish, maintain, and operate a tugboat and pilotage service in said port and between said port and the sea, and to that end to purchase, lease, and operate boats; (6) to acquire lands, to construct canals, and maintain and operate wharves, warehouses, and dry docks; (7) to do anything which may become requisite, necessary or convenient in carrying out any of the powers granted; (8) to borrow money and issue bonds; (9) to assess, levy, and collect taxes upon all property within its boundaries.

We read in section 6122, L. O. L., that:

"The power and authority given to corporations organized under the provisions of this act is vested in and shall be exercised by a board of commissioners, five in number, each of whom shall be a qualified voter within the limits of said corporation."

Within ten days from the issuance of the proclamation by the county court declaring that the legal voters have created a port, the Governor of the state appoints five commissioners, who shall serve for definite periods after which their successors are elected by the legal voters of the port.

The port of Astoria was organized in 1910 under the general law providing for the incorporation of ports. The Legislative Assembly in 1915 (Laws 1915, p. 62) amended section 6121 by adding the following:

"Also to acquire, charter, own, maintain and operate steamboats, power boats, vessels and water crafts for the transportation of all kinds of merchandise, passengers and freight for hire, and to engage generally in the coastwise trade and commerce both domestic and foreign and in transporting for hire all kinds of merchandise and freight. Also to establish, operate and maintain water transportation lines in any of the navigable waters of the state of Oregon and waters tributary thereto, any portion of which may touch the boundaries of such port. Also to own, acquire, construct, operate and maintain railroad terminal grounds and yards, and construct, operate and maintain such line or lines of railroad, with necessary side track, turnouts and switches and connection and arrangements with other common carriers, as in the judgment of the port commissioners may facilitate water commerce between such point and points within the boundaries of the port as the port commissioners may from time to time determine, all for hire, and to carry and transport freight and to move passenger trains thereon and there-over for hire. Also to engage generally in the business of buying and selling coal, fuel oil and all kinds of fuel for steamboats and power boats and power vessels of all kinds, and 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."

After narrating the organization of the port and reciting the amendment to section 6121, L. O. L., the complaint alleges:

That the commissioners are claiming that the amendment of 1915 enlarged the powers of the port of Astoria so as to enable the board of commissioners to acquire and operate boats for the transportation of passengers and freight: that the legal voters of the port have never amended the charter of the port nor held an election for that purpose; that the "port of Astoria has properly and legally, in so far as it had the power so to do passed, adopted, and ordained resolutions and ordinances in the manner provided by its act of incorporation, to establish, maintain, own, and operate steamboats, power boats, vessels and water crafts for the transportation of all kinds of merchandise, passengers, and freight for hire, and to establish, operate, and maintain water transportation lines upon the navigable waters of the state of Oregon"; that the port has already expended over $5,000 for the purpose of establishing, operating, and maintaining water and transportation lines, and will, unless restrained, expend "the sum of $100,000 to purchase, own, maintain, and operate steamboats, power boats, vessels, and water crafts for the transportation of all kinds of merchandise, passengers, and freight for hire, and to establish, operate, and maintain water transportation lines in the navigable waters of the state of Oregon and waters tributary thereto."

The complaint concludes with a prayer asking that the commissioners be restrained from acquiring or operating boats for the transportation of passengers or freight. The plaintiff declined to plead further after a demurrer to the complaint was sustained, and thereupon the court rendered a decree dismissing the suit. The appeal prosecuted by the plaintiff presents only such questions as were raised by the demurrer.

Bean J., dissenting.

C. W. Mullins, Dist. Atty., and Norblad & Hesse, all of Astoria, for appellant. W. W. Cotton, Arthur C. Spencer, and Carey & Kerr, all of Portland (Omar C. Spencer, of Portland, on the brief), amici curiæ. G. C. Fulton and A. C. Fulton, both of Astoria, for respondents.

HARRIS, J. (after stating the facts as above).

It will be observed from the foregoing statement that the situation presented here is one where the port of Astoria was incorporated in 1910 under a general law which was enacted in 1909, and which did not, at the time of the incorporation of the port of Astoria, include the power to acquire and operate boats for the transportation of passengers and freight; in 1915 the general law was amended so as to add to the powers of a port, previously enumerated and defined by the act of 1909, the right to maintain boats for the transportation of freight and passengers; the legal voters of the port have never held an election to decide whether they desire to exercise the new power named by the amendment; and the commissioners are acting on the assumption that the amendment of 1915 by its own force conferred upon all existing ports adequate authority to engage in the transportation business.

On the facts narrated by the complaint, the defendants argue that the Legislature possesses supervisory control over ports and, when exercising such control, has full authority to regulate or enlarge or even to withdraw powers previously granted; that, when the Legislature does speak through a general law, which in any way affects existing ports, that general law by its own compelling force immediately operates upon all existing ports; and that therefore the amendment of 1915 by its own vigor conferred upon the port of Astoria and all other like corporations the right to operate boats for the transportation of...