Allen v. Hirsch

8 Or. 412

Opinion

By the Court,

Kelly, C. J.:

The question here presented for consideration is, whether the several acts of the legislative assembly referred to in the appellant’s petition authorizing the construction of the Dalles and Sandy road and the Eastern Oregon and Winnemucca wagon road are constitutional.

Article 4, section 23, subdivision 7, of the constitution is as follows: “The legislative assembly shall not pass special or local laws in any of the following enumerated cases; that is to say * * * 7. For laying, opening, and working on highways, and for the election or appointment of supervisors.” It is claimed by the counsel for. respondent, that these acts are special and local in their character, and therefore in conflict with the provision of the constitution just quoted, and the warrants drawn under and in pursuance of them are, therefore, necessarily void. Blackstone says: “Statutes are either generator special, public or private. A general or public act is an universal rule that regards the whole community; and of this the courts of law are bound to take notice judicially and ecc officio. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns.” (1 Bl. Com. 85.) The words “general” and “public” are here used as expressing the same kind of statutes. So, also, special statutes are, according to the common law definition, synonymous with private statutes. The early elementary law writers seem to have made no distinction between a private and a local statute, but define private acts to be those which related to particular persons or classes of men, or which related to a particular place o.r town. (Burrill’s Law Dict., voce “Private Statute;” Bac. Abr., Statute F; 1 Kent’s Com. 459.) In more recent times, another distinction has been made by the constitutions of several states of the Union, including that of Oregon, in which the terms “local act” and “local laws” are used in contradistinction to public or private acts or laws. Notably this is so in the constitution of New York, and the decisions of the court of appeals have, in a measure, construed and settled the meaning of the words “local bills” or “local acts ” in that state.

In the case of The People v. Hills, 35 N. Y. 449, it was held that “an act to amend and consolidate the several acts relating to the city of Boehester,” was a local act, within the meaning of the constitutional provision “ that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” In The People v. O'Brien, 38 N. Y. 193, the question before the court was whether an act of the legislature, so far as it related to the term of office and the time for electing councilmen in the city of New York, was a general or local law. The court said: “It is clear that it relates only to the officers of the municipal corporation of New York, and has no force outside of the territory embraced in the corporation, nor any possible effect upon property not within the corporate limits, or upon persons not for the time being within such limits. It would seem to follow necessarily that the act in question is local, as contradistinguished from general. The former is entirely confined in its operations to the property and persons of a specified locality, the latter embracing either persons or property of the people of the state generally, or some class of persons or species of property.”

In The People v. Allen, 42 N. Y. 378, the question was whether an appropriation of money to improve Bouquet river was a general or local act. It was a small stream emptying into Lake Champlain, and navigable for boats about three miles from its mouth. Of it the court says: “Its name is not found upon the general maps of the state; it is not found in any general history of the country, and its character is in no way defined in any public statute; and it is not of such notoriety as to be known generally to the people of the state; and hence the courts can take no more notice of its character and existence than of the character, location, and usefulness of the ordinary highways of the state. In this respect it is unlike the great rivers and lakes of the state, and the mountain ranges, which are matters of general history and public notoriety.” The court further says: “This is unlike any of the improvements of the Hudson river. That is a river navigable for about one hundred and fifty miles, forming a necessary link in the chain of water communication between the ocean and the great lakes. It acts an important part in the commerce of the whole state, and the citizens of the state generally are interested in its navigation. An improvement made in its navigation at any point would not be mainly or materially for the benefit of the people living at or near that point, but would be for tbe benefit of tbe entire commerce of that great river, and of the commerce of the whole state.” The statute was held by the court to be a local act, because of the insignificant character of Bouquet river, and because the improvement of it would be mainly for the benefit of the people living in the immediate locality. But the court clearly intimates that an act for the improvement of the Hudson river would not be a local but a general one, because it is the connecting link in the chain of water communication between the ocean and the inland lakes. The court of appeals, in the case of The People v. Supervisors of Chautauqua, 43 N. Y. 10, goes into a somewhat critical examination of the authorities defining what is a.local and what a general act, but in its essential features it is substantially like the case last referred to.

The foregoing cases have been referred to, to show what are to be considered local acts or local laws. In contradistinction to these, all acts which relate to the location and construction of the public buildings of a state, to the establishment of new counties and prescribing their limits, are public acts, because,in their very nature the people of the whole state have an interest in them. In the case of The State ex rel. Cothren v. Lean, 9 Wis. 279, the supreme court of Wisconsin say in relation to the establishment of the county seat of Iowa county: “At the county seat of each county, the state through its proper officers administers justice; all the inhabitants of the state are liable to be sued in any county and to have their rights litigated there. And we think there is much force in the reasoning of the late Chief Justice Stowe, in the Washington county seat case, where he contends that laws relating to the location of county seats are public acts; and this view is sustained by other authorities.” The court in that case also says that it is undoubtedly difficult to draw an accurate line between general laws and those not general, and to establish a test that will be entirely satisfactory. But it was there held that the character of an act of the legislature, whether it be a “ general” law or not, is determined by the greater or less extent to which it affects the people, rather than by the ex tent of territory over which, it operates, and that a law operating in a single county, but affecting the rights of all the people therein, Is a general law. In the case of New Portland v. New Vineyard, 4 Shep. 69, it was held by the supreme court of Maine that an act annexing one town to another was a public act. The court says: “ Those are to be regarded as public acts which regulate the general interests of the state, or any of its divisions.”

In the case of West v. Blake, 4 Blackf. 236, the supreme court of Indiana says “ that an act authorizing.au agent of the state to lay off and sell lots in a particular town, it being the seat of government, was a public act.” And in reasoning upon the question it says: “ Statutes incorporating counties, fixing their boundaries, establishing courthouses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not, however, for that reason special or private acts.” Other cases might be adduced to mark the distinction between public and special or local laws. The general principle to be deduced from all the authorities seems to be this, that whenever an act of the legislature authorizes any public road or other internal improvement to be made or other act to be done, which in its nature is more beneficial to the community at large than to the inhabitants in the immediate locality of the road, or other internal improvement, such act is to be considered a public and not a special or local law.

During the ten years of territorial government in Oregon, it was the constant practice of the legislative assembly to pass special laws to lay out territorial roads from one point to another) sometimes in the same county, but more frequently in two or more counties of the territory. Generally they were passed through the influence of interested parties, who were often named in the act as commissioners to locate the road, and the expenses of such location were imposed on the counties in which the roads were established. And then by the act of January 27, 1854 (Statutes of Oregon, 1854), the expense of opening and working them was imposed on the several road districts through which they passed. These burdens thus imposed on the people of special local ities were considered as onerous, and the whole system of laying, opening, and working territorial roads came to be regarded as an exceedingly vicious mode of legislation, which interfered with the regular road system of the territory. And it was to destroy and prevent that kind of legislation that the inhibition referred to was inserted in the constitution.

Referring to the Dalles and Sandy road, now partially constructed under these acts of the legislative assembly: It is well known to all that during the winter months it is the only practicable route for a public road through the mountain range which separates eastern from western Oregon, and it was deemed to be of the most importance to the people of the state that trade and travel and mail facilities should not be obstructed; that intercourse between these two great divisions of the state should not be suspended during that season of the year when navigation on the Columbia is genererally closed by ice in the river. It was well known to the legislative assembly that, for weeks at a time, all communication between the east and west was suspended, until the interruption came to be regarded as almost a public calamity, and it was to prevent these obstructions that the appropriations of money were made to construct the Dalles and Sandy road. It is in no sense a local road. The advantages to the inhabitants living along the route or line of the road are insignificant when compared with what will be the benefits to the people at large, or at least to those residing in the two great sections before referred to, whenever the road shall be completed.

The reasons given to show that the acts making appropriations to aid in the construction of the Dalles and Sandy road are not special or local laws, will equally apply to the act authorizing the construction of the eastern Oregon and Winnemucca wagon road.

It may be noted here that the moneys appropriated by these acts are not derived from taxes levied on the people of the state. The five per centum of the net proceeds of the sales of the public lands are paid by the United States to this state expressly for the purpose of making public roads and internal improvements, and can be applied to no other purpose without a violation of the trust upon which they are received. The swamp and overflowed lands also were granted to the state for the purpose of paying the expenses of reclaiming them. And the fund in the treasury arising from the sale of these lands is the excess of the purchase money, over and above the expenses of the reclamation, which expenses the purchasers have either paid or are under obligation to pay hereafter.

There is another reason why the acts of the legislative assembly, referred to in the petition, are to be regarded as general laws, and not special or local acts. Article 4, section 27, of the constitution, declares that “every statute shall be considered a public law, unless otherwise declared in the statute itself.” Neither of the acts contains such a declaration.

We hold, therefore, that they do not come within the constitutional inhibition contained in section 23 of article 4, that “the legislative assembly shall not pass special or local laws * * * * for the purpose of laying, opening, and working on highways.” We think the objection to the sufficiency of the first and second clauses of the petition is well taken by the counsel for respondent. In neither of them is there any allegation that when payment was demanded on the twenty-seventh day of August, 1879, there was sufficient money in the treasury to pay said warrants and applicable to such payment. The third clause in the petition is not open to this objection, and a peremptory writ of mandamus ought to be allowed, commanding the respondent to pay the warrant for one thousand nine hundred and ninety-six dollars, unless he shall ask leave to file an answer and defend upon the merits.

It is ordered that the judgment be reversed, and this cause remanded to the court below for further proceedings. And it is further ordered that the costs of this proceeding be paid by the state.

Boise, J., dissents from this opinion, on the ground that the laws providing for these warrants are special laws within

the meaning of section 28, subdivision 7, article 4, of tbe constitution. Section 27 of said article does not abridge tbe force of section 28, for the reason that a special law may be also a public law, and the provisions of these different sections are not repugnant to each other. Smith on Construction defines a special law as distinguished from a general law. Of the latter he says: “It is one which provides for all things of a kind or genus; special provides for a species of the genus.” In this case a general law relating to highways should provide for all the highways of the state; a special law to a particular highway, as in this case.