Winters v. George

• Decision Date: 12 November 1891
• Citation: 21 Or. 251,27 P. 1041
• Parties: WINTERS v. GEORGE et al.
• Court: Oregon Supreme Court

27 P. 1041

21 Or. 251

WINTERS v. GEORGE et al.

Supreme Court of Oregon

November 12, 1891

Appeal from circuit court, Multnomah county; LOYAL B. STEARNS Judge.

Suit by H.D. Winters against M.C. George and others to enjoin the defendants from issuing bonds of the three cities of Portland, East Portland, and Albina for the purpose of constructing or purchasing one or more bridges across the Willamette river. A demurrer to the complaint was sustained and the suit was dismissed. Plaintiff appeals. Affirmed.

STATEMENT BY THE COURT. This suit was brought for the purpose of restraining the defendants from issuing bonds and constructing or purchasing one or more bridges across the Willamette river at Portland, as contemplated by the act passed by the last legislature, and generally known as the "Muesdorffer Act," (Sess. Acts 1891, p. 634 et seq.) The complaint charges tat the plaintiff is a resident and tax-payer in the city of Portland, Or., organized under an act of the late legislative assembly of this state for the consolidation of the cities of Portland, East Portland, and Albina; that said legislative assembly passed an act, which was filed in the office of the secretary of state on the 18th day of February, 1891, and which took effect 90 days thereafter, entitled "An act to authorize the cities of Portland, East Portland, and Albina to construct, purchase and acquire, by condemnation or other means, one or more bridges across the Willamette river between the city of Portland and the city of East Portland in Multnomah county Oregon, which bridge or bridges shall be free to all pedestrians and all classes of vehicles and traffic except railways and street railways." Several sections of the act are then set out; also some sections of the Portland consolidation act, which will be more particularly noticed further on. The complaint then continues: Plaintiff further alleges that said defendants, assuming to act as said bridge committee, are threatening to and have taken steps to issue bonds under and in accordance with section 20 of said first-named act, and, unless restrained by an order of this court, will issue said bonds, and thereby subject the plaintiff and the other tax-payers of said consolidated city to expense and trouble in resisting the collection of taxes to pay the interest and principal of said bonds, and will embarrass and prevent the city authorities of said city of Portland from issuing the necessary bonds, and constructing or acquiring a free bridge across the Willamette river, as provided for in section 190 of said last-mentioned act; that defendants are without authority of law to issue said bonds; and that said act of February 18, 1891, providing for said bridge committee, was repealed and abrogated by said act of February 19, 1891. The court below sustained a demurrer to this complaint, and entered a final decree dismissing the suit, from which this appeal was taken.

Williams & Wood and Killin, Starr & Thomas, (Paxton & Paddock, of counsel,) for respondents.

STRAHAN C.J.

The real contention here is that the act consolidating the cities of Portland, East Portland, and Albina into one municipal corporation repealed by implication the Muesdorffer act, and that is the only question presented by this appeal. A brief summary of the act will render the question at issue more apparent. The first section provides, in substance, that the cities of Portland, East Portland, and Albina are hereby authorized and empowered to provide one or more suitable and commodious bridges over and across the Willamette river, at such points between the north line of section 28, township 1 N., range 1 E., and the south line of section 3, township 1 S., range 1 E., as to the persons herein authorized to purchase, construct, hire, maintain, conduct, and control the same may be deemed most necessary and convenient; said bridge or bridges to be forever free to all pedestrians and all classes of vehicles and traffic except railways and street railways; and to that end said cities may acquire, by construction, purchase, or otherwise, and own and possess all such bridges and all such real and personal property within the limits hereinbefore mentioned as in the judgment of the persons herein authorized to construct, purchase, keep up, and maintain the same may be necessary, and for such purpose may also issue bonds, and dispose of the same, as hereinafter provided: provided, the place or location of any bridge constructed and the plan thereof shall be submitted to and approved by the secretary of war. Section 2, in substance, provides that the power and authority given to said cities by section 1 to construct, purchase, hire, keep up, and maintain bridges across the Willamette river, and to issue and dispose of bonds therefor, shall be exercised, as hereinafter provided, by eight tax-payers of said Multnomah county, to be appointed by the two judges of the circuit court of the state of Oregon for the county of Multnomah,--two each from the said cities of East Portland and Albina, and four from said city of Portland,--who shall be styled the "Bridge Committee," and thereinafter mentioned and referred to as the "committee." Section 3 requires the judges to appoint the "committee" within 30 days after the act took effect, and to cause them to be notified of their appointment. Section 4 requires the committee to meet and organize within 20 days after their appointment, first giving notice of the time and place of such meeting by five of their number in a daily newspaper of the city of Portland. Section 5 empowers the committee to fill vacancies in that body by death, resignation, or removal from the city of which he was a resident, or otherwise; defines the qualification a person must possess to fill a vacancy, and the number of members necessary to constitute a quorum. Section 6 defines the chairman's duties, and authorizes the committee to appoint a chairman from their number for the time being, when the chairman is absent. Section 7 further defines the duties of the chairman. Section 8 defines the duties of clerk of the committee. Section 9 empowers the committee to appoint a treasurer, who shall give bond in such sum as it may require, and defines his duties. Section 10 makes it the duty of the clerk and treasurer to perform such other duties as the committee may require, fixes the tenure of their offices during the pleasure of the committee, and their salaries at such sums as the committee may prescribe. Section 11 authorizes the committee to employ and discharge such other agents, workmen, laborers, and servants at such compensation or wages as it may deem necessary for the accomplishment of the purposes of the act. Section 12 makes it the duty of the committee to meet in one of said cities, at such times and places as it may designate, at least once a month, and at such other times as it may appoint. Section 13 defines in what manner the committee and its officers shall qualify. Section 14 is as follows: "For the purpose of carrying this act into effect the committee is authorized to issue and dispose of bonds of said three cities of the denomination of from $100 to $1,000, as the purchaser may desire, with interest coupons attached thereto, the par value of which shall not exceed $500,000, signed by its chairman and countersigned by its clerk; said bonds to be issued as the joint obligation of the three cities, whereby each of said cities shall be held and considered,...