Zilesch v. Polk County

• Decision Date: 29 May 1923
• Parties: ZILESCH ET AL. v. POLK COUNTY ET AL.
• Court: Oregon Supreme Court

215 P. 578

107 Or. 659

ZILESCH ET AL. v. POLK COUNTY ET AL.

Supreme Court of Oregon

May 29, 1923

In Banc.

Appeal from Circuit Court, Polk County; Percy R. Kelly, Judge.

Suit by Ernest Zilesch and others against the County of Polk and others. From judgment granting partial relief only plaintiffs appeal. Affirmed.

This is a suit brought by plaintiff and other taxpayers of Polk county against the county of Polk, the county judge, the county commissioners, the county clerk, the county treasurer and the Oregon state highway commission to enjoin the defendants from carrying into effect and constructing the West Side Pacific Highway, and to enjoin the carrying out of certain contracts made between the state highway commission and Polk county, which contracts are in substance as follows The state highway commission agreed to construct for and on behalf of Polk county the necessary grade and bridges properly to prepare for hard surfacing that certain highway leading from Monmouth south, following generally the course of the existing county road, to a point approximately one-half mile south of the Luckiamute river; it being understood by the parties to the agreement that the road was being constructed as a market road and with market road funds; it being likewise understood by the parties that, in addition to being a county highway and market road, the same road was likewise a state highway, and would subsequently be improved with state highway funds as a state highway, and be the Pacific Highway in Polk county. On the same date the highway commission entered into a contract with Polk county by which agreement the commission, in compliance with a request made by the county court of Polk county, was to advance or loan to Polk county certain funds to be used in the preparation of a road from the Luckiamute river south to a point 1 1/2 miles south of the Benton-Polk county line, and to enable the county to prepare for pavement of the highway from Rickreall north, and to finish the grade and bridges on the unfinished portions of the Salem-Dallas road, so that such road, together with each of the other two roads, might be prepared for pavement by the state highway commission. Both of these contracts were attacked in the circuit court for Polk county by appellants in this suit, the contracts being referred to in the pleadings as contracts A and B respectively; the contract involving the expenditure of the market road money being contract A, and the contract involving the loan to Polk county being designated as contract B.

The ostensible purpose of the prosecution of the suit by appellants was to stop the payment of funds under both of these contracts, for the reason, as alleged by appellants, that such expenditure in each instance was unlawful.

There were, therefore, in the case at bar, three principal issues presented to the circuit court: (1) The issue growing out of contract A, which involved the expenditure of market road money on state highways; (2) the issue growing out of contract B, involving a loan of money to the county; and (3) the question of the legal location of the Pacific Highway in Polk county, the appellants claiming that any location that did not pass through Dallas, Monmouth, and Independence was invalid and unlawful. Upon a trial in the circuit court it was held that the expenditure of market road money on state highways was an expenditure not contemplated by the market road law, and was therefore invalid and unauthorized appropriation of public funds. The court likewise held, with reference to contract B, that the loan of funds by the state highway commission to Polk county for the purpose above stated resulted in the creation of a debt in such an amount as to do violence to the Constitution, prohibiting the creation of debts by counties, and was therefore invalid and unlawful. Thus, upon two of the propositions mentioned, the appellants prevailed in the lower court, but as to the question of the location of the highway the court held that the appellants were not entitled to the relief demanded, and upon that issue the defendants prevailed and plaintiffs appealed to this court; so that there is but one question here to be decided, and that is the real location of the Pacific Highway, so that it leaves off the line thereof the towns of Dallas and Independence. This involves a construction of several sections of the statutes.

In 1917 the Legislature referred to the people an act providing for the construction of certain highways, among others the Pacific Highway, and designated its route as follows:

"* * * From the Multnomah county line through Washington county and Yamhill county by way of Hillsboro, Forest Grove, McMinnville to Dallas, Monmouth and Independence in Polk county; to Corvallis and Monroe in Benton county and through Eugene to the north line of Douglas county." Subdivision 2 of section 6, c. 423, General Laws of Oregon of 1917.

In subdivision 5 of section 8 of the same statute the following language is used:

"No description of any highway provided for herein shall be construed to prevent the state highway commission from making such local changes in the location thereof as they may deem proper."

In chapter 361 of the General Laws of Oregon for 1921 the following language is used:

"Section 1. That the Oregon state highway commission is hereby authorized and empowered to make such changes in the location of the highways named or designated in chapter 423 of the Oregon Laws for 1917, now known as chapter IV of title XXX, Oregon Laws, as in the judgment and discretion of the highway commission will result in better alignment, more advantageous and economical highway construction, or will contribute to and afford a better or more serviceable system of state highways than is possible under the present statutory locations.

"Section 2. Nothing in this act shall be deemed or intended to in any way amend any of the provisions of chapter IV of title XXX, Oregon Laws, but the provisions of this act shall be deemed and considered to be an authority and power conferred upon the state highway commission in addition to the powers and authority conferred by the provisions of said chapter [IV] of title XXX, Oregon Laws."

The following is a plat of the highway in question:

RPT.CC.1923102323.00010

(Image Omitted)

Martin L. Pipes, of Portland, and D. E. Fletcher, of Independence (John M. Pipes and George A. Pipes, both of Portland, on the brief), for appellants.

J. M. Devers, Special Asst. Atty. Gen., J. N. Helgerson, Dist. Atty., of Dallas (I. H. Van Winkle, Atty. Gen., on the brief), for respondents.

McBRIDE, C.J. (after stating the facts as above).

The decision of the circuit court is not attacked as to the two points decided in favor of the appellants, so there remains only to consider the legality of the location of the highway in the manner that disregards the towns of Dallas and Independence as fixed monuments on the road. This, again, turns upon the construction to be given to subdivision 5 of section 8, supra, which, if broad enough to confer the power exercised by the commission in changing the route of the highway, ends appellants' case. Or, if the section last above quoted shall be held valid, then, irrespective of any construction which may be put upon subdivision 5 of the original act, the same result must follow. We are of the opinion that subdivision 5 is in itself sufficient to authorize the changes in location made by the commission, and are further of the opinion that chapter 361, supra, was a valid exercise of legislative power; and, these two propositions being decisive of this case, it will be unnecessary to discuss the other issues disclosed by the pleadings and briefs of counsel.

In view of the language employed in ...