State v. Portland General Electric Co.

Decision Date17 November 1908
Citation52 Or. 502,98 P. 160
PartiesSTATE v. PORTLAND GENERAL ELECTRIC CO.
CourtOregon Supreme Court

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

On rehearing. Petition for rehearing denied.

For former opinion, see 95 P. 722.

A.M. Crawford, Atty. Gen., and W.P. Lord, for appellant.

Frederick V. Holman and Wirt Minor, for respondent.

EAKIN, J.

It is suggested, by the petition for rehearing, that the court is not justified in holding that Act 1870 (Laws 1870, p. 14) authorized the construction of the locks, and gave authority to operate them and collect tolls thereon, and that the first company did not have these powers and rights by virtue of its articles of incorporation. The Willamette river is a public navigable stream, a public highway, the title to the bed and banks of which is in the state, for the benefit of the public. Johnson v. Knott, 13 Or. 308, 10 P 418; Pollard's Lessee v. Hagan, 3 How. 212, 219 11 L.Ed. 565; Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L.Ed. 74. The state has the right to improve this highway for the purpose of navigation. It may do this itself or it may delegate to another the authority to do so; but without this delegated authority from the state no company can acquire the right, by filing articles of incorporation, either to improve it or to collect tolls for the use of such improvements, even when such a purpose is specified in those articles. 21 Am. & Eng.Ency.Law, 434b, and authorities cited; 29 Cyc. 298, 304. In Boykin v. Shaffer, 13 La.Ann. 129, 131, in discussing the right to collect tolls upon a navigable stream, the court say; "It must be considered that the defendant could not without authority charge toll for the use of a lock which he had erected. Such a right would be a franchise which the sovereign alone could confer." See, also, Monongahela Nav. Co. v. United States, 148 U.S. 312, 329, 13 Sup.Ct. 622, 37 L.Ed. 463; Sands v. Manistee R. Imp. Co., 123 U.S. 288, 8 Sup.Ct. 113, 31 L.Ed. 149. The right to improve such a highway is a franchise that, unless authorized by the General Statutes under which the corporation is organized, is not by the act of incorporation. There must be authority from the state. This answers the objection also that the act of 1870 is an amendment to the articles of incorporation of the first company. It is a special grant of a franchise, one which could not be acquired by the specification thereof in the articles, and is not the creation of a corporation by a special law, which is forbidden by the Constitution.

Section 2 of the act of 1870 provides that, "in order to entitle the said corporation to receive the sum of money hereby agreed to be paid, it shall be the duty of said corporation to construct a canal and locks. *** And after the completion of the same, the said corporation shall pass without delay *** all steamboats," etc. The term "duty to construct" is more comprehensive than a grant of authority, and includes it; and to say that the company "shall not charge a greater rate of toll than 50 cents per ton" is equivalent to saying that it may charge that much. A court probably would not hesitate so to construe it against the state, if it were denying that the company had such authority. The railroad cases cited by the counsel for defendant, to the effect that a charter to construct and operate the railroad carries with it the right to charge fares and freights, are hardly in point. The railroad company is the exclusive owner of the transportation line. It is a private road, the operation of which is for the purpose of rendering public service; but, to use an illustration suggested by the judge in Boykin v. Shaffer, supra, if a company filed articles of incorporation for the purpose of building a bridge on a public highway where one may be needed, it could hardly be urged that it could control the bridge or collect tolls thereon without some authority from the county. Counsel refer to the ferry franchise in the case of Multnomah County v. Knott, 6 Or. 279; but no corporation, by virtue of its articles of incorporation, could acquire a ferry franchise. It must be acquired by special grant, unless there is a general statute covering such a case. And these provisions of the act of 1870 are not in violation of Const. art. 11,§ 2. To use counsel's own words, at page 29 of the petition: "There is no prohibition in the Oregon Constitution against granting a franchise to operate a ferry or a canal or locks, and to collect tolls." Counsel say that by the answer it is alleged that the defendant is the owner in fee of the canal and locks, and that for the purposes of the demurrer this must be taken as true; but the court will take judicial knowledge of the fact that the defendant could acquire the fee to the property only by a legislative grant. It could not be acquired in any other way; and therefore the allegation cannot be taken as true.

Counsel also insists that, by reason of the defendant being the owner of the upland, he owns to the middle of the stream, citing Weiss v. Oregon Iron, etc., Co., 13 Or. 497, 11 P 255. In that case the only holding is that Weiss was a riparian owner; not that he owned the bed of the stream. That case is cited to this effect by Mr. Chief...

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