State v. Portland General Elec. Co.

CourtSupreme Court of Oregon
Writing for the CourtEAKIN, J. (after stating the facts as above).
Citation52 Or. 502,95 P. 722
Decision Date12 May 1908
PartiesSTATE v. PORTLAND GENERAL ELECTRIC CO.

95 P. 722

52 Or. 502

STATE
v.
PORTLAND GENERAL ELECTRIC CO.

Supreme Court of Oregon

May 12, 1908


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

Suit by the state against the Portland General Electric Company. From a decree of dismissal rendered after the overruling of a demurrer to the new matter of the answer, plaintiff appeals. Reversed and remanded.

As disclosed by the amended complaint, this is a suit brought by the state against the defendant, as successor in interest of the Willamette Falls Canal & Lock Company, which we shall hereafter refer to as the "first company," to recover the 10 per cent. of the net profits arising from tolls collected on the canal and locks at Oregon City, as provided by an act of the Legislature of the year 1870. On September 14, 1868, the first company incorporated for the purpose of constructing a canal and locks at, and on the west side of, the Willamette Falls, and on October 21, 1870, the legislative assembly of the state of Oregon passed an act entitled "An act to appropriate funds for the construction of a steamboat canal at the Willamette Falls," which we shall hereafter refer to as the act of 1870 (Laws 1870, p. 14), the preamble to which is as follows: "Whereas, the Willamette Falls Canal and Lock Co. was duly incorporated under the laws of Oregon, on the 14th day of September, 1868, for the purpose of constructing a canal, and locks at and on the west side of the Willamette Falls; and, whereas, it is of great importance to the people of Oregon that the obstructions to the free navigation of the Willamette river at that place should be removed, and freights carried on said river should be cheapened; therefore, be it enacted. ***" Section 1 of the act agrees to pay to the said company the sum of money in the act afterwards specified. Sections 2 and 3 provide the following:

"Sec. 2. 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 at and on the west side of the Willamette Falls; the said lock to be not less than one hundred and sixty feet in length, and forty feet in width, and to be constructed chiefly of stone, cement and iron, and otherwise built in a durable and permanent manner; the said canal and locks to be completed on or before the first day of January, 1873. And after the completion of the same, the said corporation shall pass without delay through the said canal and locks, all steamboats, flatboats, barges and other water craft, in the order in which they shall arrive at either terminus of the canal.

"Sec. 3. The state of Oregon agrees to pay the said sum of money upon the express condition that the said corporation, after the completion of the said canal and locks, as hereinafter set forth, shall not charge a greater rate of tolls than fifty cents per ton for freight, and ten cents for each passenger, going through said canal and locks in steamboats or other water craft. And at the expiration of 20 years from the time said canal and locks are completed, the state of Oregon shall have the right and privilege to take and appropriate to its own use forever, the said canal and locks, upon the payment to the said corporation the actual value thereof, at the time of taking and appropriating the same, which value shall be ascertained in such manner as the legislative assembly of Oregon may hereafter prescribe."

Section 4 provides that the company shall execute to the state by January 1, 1873, a bond in the sum of $300,000, conditioned for the faithful construction of said canal and locks, and provides that the state shall issue its interest-bearing bonds for $200,000 to the company, payable to it or its assigns on or before 10 years. Section 5 provides the following: "The faith of the state of Oregon is hereby pledged so to administer said funds as to make them available at the earliest period, for the payment of said bonds by this act authorized to be issued, upon the express condition that said corporation shall construct said canal and locks in the manner before provided in this Act, and not charge a greater rate of tolls than is herein set forth. And it is further provided that the issuance and payment of said bonds shall be made upon the express condition that said corporation shall pay to the state of Oregon ten per centum of the net profits arising from the tolls collected for passing freights and passengers through said canal and locks, which sum of ten per centum of net profits shall be paid into the common school fund of this state." The company did construct the canal and locks as provided for in said act, and the bonds for the said sum of $200,000 were issued and afterward paid. Thereafter that company operated the canal and locks and collected tolls therefor until March 8, 1876, and during that time paid to the state as net profits for the year 1873 $430, but made no other payments. On March 8, 1876, it assigned and transferred all of its interests in the canal and locks to the Willamette Transportation & Locks Company, which we shall hereafter refer to as the "second company." This second company thereafter operated the same until August 24, 1892, when it assigned and transferred its interests therein to this defendant, which has operated the same ever since. The Legislature on October 19, 1876 (Laws 1876, p. 14), passed an additional act, relating to the canal and locks, by section 5 of which it created a board of canal commissioners consisting of three members and authorized them to appoint a secretary, whose duty it was to keep a register of the names of all water craft and of the number of tons of freight and number of passengers passing through the locks, and also provided by other sections that no discriminations should be made by the company in passing boats or collecting tolls, requiring boatowners to furnish to the secretary of the board lists of the amount of freight and number of passengers carried through the locks, and requiring the board to certify to the Secretary of State the number of tons of freight and number of passengers passing through the locks, to the end that knowledge of the receipts of the said locks company may be authoritatively had, and that the first company, or the party claiming under it by virtue of assignment, shall certify to the Secretary of State a detailed and itemized statement of the disbursements and liabilities of the company, in order that the company's net receipts may be ascertained. On October 17, 1878, another act (Laws 1878, p. 27) was passed by the Legislature, amending section 5 of the act of 1876 (Laws 1876, p. 16). This act provides that one commissioner shall be elected by the Legislature, who, with the Governor and Secretary of State, shall constitute the board, and the elected commissioner shall be the secretary of said board. On October 26, 1882, another act (Laws 1882, p. 42) was passed, making the Governor, Secretary of State, and State Treasurer, the board of canal commissioners, and the private secretary of the Governor the secretary of the board, and requiring the first company, or the party acting under it, to certify quarterly to the board the number of tons of freight and the number of passengers, together with the names of craft, passing through the canal. This act repeals such sections of the acts of 1876 and 1878 as are thereby rendered inoperative. It is alleged in the amended complaint that the defendant has refused and neglected to furnish a detailed and itemized statement of the disbursements, or a full and complete statement of the freight and passengers passing through the canal and locks, or of the tolls collected therefor, from which the net profits of the company may be ascertained, and refuses and neglects to pay the said 10 per cent. of such net profits to the state; and asks that the defendant be required to furnish an account of the expenses and of the freights and passengers passed through the locks, and the tolls collected therefor, that said net profits may be ascertained, and that the plaintiff have judgment for 10 per cent. of said net profits from and including the year 1874 to and including the year 1904.

The defendant demurred to all that part of the amended complaint which seeks to recover from the defendant the net profits earned prior to the 21st day of May, 1897, for the reason that this suit therefor has not been commenced within the time limited by law. The demurrer was sustained by the lower court and entry thereof made on January 2, 1906, and thereafter, on March 3, 1906, the court rendered judgment dismissing the complaint, so far as it seeks to recover any net profits arising prior to the 21st day of May, 1897. On April 3, 1906, the defendant filed his answer, wherein he denies that the first company accepted the terms of the act of 1870, but admits that it accepted the bonds; denies on information and belief the payment of $430, that the first company or the second company made no other payments of the 10 per cent. of the profits, or that the first company or the second company operated the canal and locks under the Act of 1870 or the Act of 1876; also denies that any request was made upon this defendant for a statement or for the payment of said 10 per cent.; and denies the legal effect of the statutes, and acts set out in the complaint, and sets up three separate affirmative defenses. The effect of the first one is that by the articles of incorporation of itself and predecessors, and by mesne conveyances the defendant has acquired the title and ownership of the canal and locks in fee, and not through any of these special statutes. By the second defense, after reciting its title as set forth in the first defense, it is alleged that, by reason of the fact that the state has acquiesced in the defendant's exercise of these rights and by virtue of the act of 1876, it is now estopped...

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1 practice notes
  • City of Eugene v. Willamette Valley Co.
    • United States
    • Supreme Court of Oregon
    • October 27, 1908
    ...should, at any time, be a shortage in the resources mentioned to meet the payment of the interest on the water bonds as the installments [52 Or. 502] severally accrue, or insufficient annually to set aside the required amount of money as a sinking fund so provided for, recourse must be had ......
1 cases
  • City of Eugene v. Willamette Valley Co.
    • United States
    • Supreme Court of Oregon
    • October 27, 1908
    ...should, at any time, be a shortage in the resources mentioned to meet the payment of the interest on the water bonds as the installments [52 Or. 502] severally accrue, or insufficient annually to set aside the required amount of money as a sinking fund so provided for, recourse must be had ......

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