This is a mandamus proceeding in which the plaintiff seeks to compel the state highway commission to pay it a sum of money in accordance with the provisions of chapter 298, Oregon Laws, 1933.
The plaintiff is organized under chapter 399, General Laws of Oregon, 1921, being an act,
"To provide for the incorporation under general law of highway improvement districts consisting of contiguous territory; to provide for the organization of such districts, for the appointment and election of officers, authorizing such districts to levy taxes, borrow money, issue bonds; to authorize the laying out, construction, improvement and maintenance of highways within such districts; and declaring an emergency." *Page 136
The corporate powers conferred upon a municipal corporation, organized under this act, are to be exercised through a board of trustees. The power of the board of trustees, regarding the laying out, opening and construction of highways, is rather limited. It is found in section 26 of the said act, as follows:
"Section 26. The board of trustees of any such district may recommend to the state highway commission the location, opening up, laying out, construction or improvement of roads within such district. Upon receiving a request therefor, it shall be the duty of the state highway commission to proceed to a survey and definitely locate such road or roads at the expense of said district or municipality. Said state highway commission shall also prepare the plans and specifications for the construction of any such road and submit the same to the board of trustees of such highway district. Upon the approval of the definite location of any such proposed highway and of the plans and specifications for the improvement or construction thereof by the state highway commission and by the board of trustees of such highway district, it shall then be the duty of the state highway commission to proceed with the construction or improvement of any such road the same as the construction of any state highway, but to the extent only of the funds in the hands of the state treasurer to the credit of any such corporation. Upon certificate from the state highway commission of the amount of money due upon any such improvement, including the making of plans and specifications, location and survey, it shall be the duty of the president and secretary of such corporation to draw an order upon the state treasurer in favor of the state highway commission for the amount of money so certified to be due for such construction or improvement, including the making of the location and survey, and the plans and specifications."
The plaintiff was organized in the year 1926, and proceeded according to law to construct highways, and *Page 137 to create indebtedness by issuing bonds, of which, according to the stipulation of counsel, there remains unpaid of said bond issue the sum of $120,000, and that said bond issue places an extremely heavy burden upon the taxpayers of said highway improvement district in excess of that contemplated at the organization of said district which, under the present conditions, it is impossible for the taxpayers to meet.
It appears that there was constructed, by the plaintiff, a road between Valley Junction in Polk county and Otis in Lincoln county, of standard construction and state highway specifications. About the time the road was completed, the state highway commission took it over and made it a part of the state highway system. In 1933, the legislature, at its regular session, enacted chapter 298, Oregon Laws, 1933, which, after several plausible "whereases", provided, "The state highway commission is hereby authorized, empowered and directed to pay to the Salmon River-Grand Ronde Highway Improvement district, in cooperation and as a contribution toward the building and construction of said Salmon River Cutoff highway, out of the state highway funds, the following amounts at the times stated, to wit: March 15, 1933, $3,150.29 * * *". Then follows fixed installments to be paid semi-annually until the whole of the bond issue and accruing interest is paid.
Upon presentation by the board of trustees of the district, of its claim for the first installment, the state highway commission refused its approval.
The sole question involved in this suit is the constitutionality of said chapter 298.
It is stipulated by counsel:
"That it was the original plan of said Salmon River-Grand Ronde Highway Improvement District *Page 138 to build a road according to market road standards and specifications between the end of the county road about a mile west of Grand Ronde in Polk County, and the end of the County road about five miles east of Rose Lodge, in Lincoln County, a distance of approximately ten miles, at an approximate cost of $35,000."
It is further stipulated in effect, that the state highway commission refused to proceed with such a standard and provided plans and specifications for a standard state highway, and the district built the road according to the plans and specifications of the state highway commission.
There are several other stipulations of counsel but the net result and the facts are, that the plaintiff undertook to construct a certain highway according to the provisions of the act under which they were incorporated, and in doing so created a debt which it now claims is burdensome and which the legislature, by virtue of chapter 298, Oregon Laws, 1933, assumes and agrees to pay.
It is no argument to say that the board of trustees only intended to build a market road and was compelled by the state highway commission to build a standard state highway. The board knew the law under which it was organized. It had the plans and specifications for the construction of the highway submitted for its approval before the construction was begun. It should not now be heard to complain of the consequences of an undertaking voluntarily engaged in with full knowledge and information of its requirements.
It is also argued that the state does not assume the debts of the municipality because one legislature has no control over the actions of the next and that *Page 139 some future one may repeal the law (chapter 298, Oregon Laws, 1933). We are not being asked to pass upon future payments, except indirectly; we are asked to mandamus the state (through the state highway commission) to pay the installment due this year, the one that fell due March 15, 1933.
The argument is made that the money was expended by the plaintiff for a public purpose and that the road is for the use of all the people in the state. That same argument would apply with equal force to every public highway, street and alley, legally laid out or dedicated to the use of the public in the state.
The argument is also made that it is the primary duty of the state to build and maintain adequate public highways and unless prohibited by the fundamental law, may itself discharge the trust or delegate the duty to a municipality or quasi-municipality.Bank of Idaho v. Malheur County, 30 Or. 420 (45 P. 781, 35 L.R.A. 141); Yocum v. City of Sheridan, 68 Or. 232 (137 P. 222); Stoppenback v. Multnomah County, 71 Or. 493 (142 P. 832). All highways laid out by the state, or by any municipality to which such power has been delegated, are for the use and benefit of the public, and the use of them at all times may be controlled by the legislature. But the fundamental law of the state of Oregon prohibits the "laying, opening or working of highways" except by general law. This is an inhibition laid on the legislature by the constitution.
The language of the constitution is, "The state shall never assume the debts of * * * any corporation." This means any part of such debts. To say, that because the law might be repealed before the entire debt is paid means that the state does not assume the debt, is a strained construction of the word *Page 140 "assume". "What may not be done directly may not be done indirectly", is a rule of law frequently expressed and followed by this court. This maxim may well be enlarged by saying that the inhibitions of the constitution may not be overcome by evasion. It matters not how skillfully or shrewdly the act transferring the debts of the municipality to the state may be worded, nor how sugar-coated the proposition may be, yet the ordinary citizen and taxpayer knows that the act simply shifts the burden of payment from those who voluntarily created and agreed to pay it to those upon whom the constitution provides it shall not be placed. All the "whereases" by which the real purpose is attempted to be concealed can not change its meaning and effect. The word"assume" in the above provision of the constitution is presumed to have been used in its "primary and general acceptation". Oregon Code 1930, § 9-217. The Standard dictionary (Funk Wagnalls) gives its meaning: "To take or put on one's self; take up; take on; adopt." Webster's International Dictionary defines it: "To take upon one's self (to do or perform); to undertake; * * *."
The writer is of the opinion that chapter 298, Oregon Laws, 1933, violates section 8, Article 11 of the Oregon Constitution, and also violates subsection 7, of § 23, Article 4 of the Oregon Constitution, which provides against special and local laws "for laying, opening or working on highways * * *". If this court was right in Maxwell v. Tillamook County, 20 Or. 495 (26 P. 803), and in Sears v. Steel, State Treasurer, 55 Or. 544 (107 P. 3), then this act is special and local and has to do with laying, opening and working on highways. What the framers of the constitution had in mind, in regard to these activities, was as much *Page 141 the payment for such work as the actual doing of the work.Stoppenback v. Multnomah County, supra; Kinney v. Astoria,108 Or. 514 (217 P. 840); and Rockhill v. Benson, 97 Or. 176 (191 P. 497), do not overrule those cases.
"In determining this question, we will first consider the intent with which this provision was placed in our constitution and the mischief which it was designed to remedy or prevent. Under the provisional government as early as June 22, 1844, Oregon had a system of laying out and locating highways, probably taken from the Iowa Code, and in 1847 an act was passed by the provisional legislature providing for a complete system of road work with supervisors who reported to the county commissioners, and which, in its general scope, was not essentially different from methods now in vogue. But at this early date, the provisional legislature seems habitually to have created territorial roads and appointed commissioners to locate and lay them out. Thus, we find an act passed December 12, 1846, appointing commissioners to locate and lay out a territorial road from the `town of Portland on the Willamette River' to the mouth of Mary's River in Polk County. Another, to authorize the laying out of a territorial road from Oregon City to the `Calipooyah' River. Another, from Oxford on the Willamette to John McCoy's farm on Muddy Creek in Linn County. Another from `Linn City to Zed Martis'. Another, to improve and open the road `known as the southern route leading from the United States to Oregon'. The employees on this enterprise were prudently required to furnish their own tools, `arms and ammunition'. Another act provided for a public road from `Multnomah City' to the mouth of Mary's River. Still another, authorized the location of a territorial road from `Tuality Plains to Clatsop Plains'. Passing over the intervening years till the session of the territorial legislature of 1850-51, we find eight special acts authorizing the laying out of territorial roads in various parts of the territory, all passed within the space *Page 142 of less than a month, indicating that the practice of logrolling among the fathers of the State was not confined entirely to that specie of the employment necessary in clearing up their farms. It is a well-known fact that few of these roads, which, in the aggregate, must have cost the infant community a considerable sum of money for laying out and working, were ever of any practical value or use, beyond the emoluments they furnished to the commissioners and surveyors designated to select the route. Under these circumstances, it was no doubt thought by the framers of the constitution that it would be well to divorce the State from the business of special road building, and leave that matter to be attended to by the counties under general laws. * * * In Crawford v. Linn County, 11 Or. 499 (5 P. 738), Mr. Chief Justice Waldo calls attention to the fact that it was not claimed in Allen v. Hirsch that the act was local, but that it was special, which is an entirely different matter. The decision of the court in Allen v. Hirsch seems to have opened the way for legislation of a similar character. In the session laws of 1885, we find an act appropriating $15,000 for the construction of a wagon road from a locality, bearing the significant name of `Hogem', to Cornucopia, in Union County. The act contains all the necessary `whereases', as to its public and general character, that were indicated by the court in Allen v. Hirsch, and no action seems to have been taken to prevent the expenditure of the money. The legislature of 1889, taking the cue from the decision in Allen v. Hirsch, passed nine road bills, appropriating sums varying in amounts from $8,000 to $15,000 and aggregating considerably above $100,000, seeming to fairly open up the flood gates for the unlimited increase of such appropriations, until the decision of this court in Maxwell v. Tillamook County, 20 Or. 295 (26 P. 803), which arrested further appropriations of this character until the last session of the legislature. Since we consider that case decisive of the one at bar, we shall briefly consider the points suggested and decided therein." Sears v. Steel, State Treasurer, supra. *Page 143
In Stoppenback v. Multnomah County, supra, the question at issue was whether the legislature could authorize the state to contribute to the cost of certain fills leading to the interstate bridge across the Columbia river to Vancouver, Washington — a bridge, which, as soon as built and paid for out of the tolls collected thereon, should become the property of the state. This court intimated that subsection 23 of section 7 of Article 4 of the Constitution of Oregon had been impliedly repealed or superseded by Article 11, section 7, Id., adopted in the election of 1912. This holding was not necessary to the determination of the case and should be taken only as dicta. It could not be considered that section 7 of Article 11, permitting the state to lend its credit for the building of permanent highways, is repugnant to the provision prohibiting the laying out, opening or working on highways by special or local law, but would indicate that when the state, through the legislature, exercised the privilege of lending its credit for that purpose, it should be done by a general and not a special or local law.
Neither are these two provisions inconsistent with each other. Each provision was intended to prevent certain evils that might grow up or to remedy evils already existing.
In the same opinion, the court says, regarding the construction of statutes:
"Where statutes are not repugnant to or inconsistent with each other they should be construed in pari materia: McLaughlin v. Hoover, 1 Or. 32; Winter v. Norton, 1 Or. 43; Miller v. Tobin,16 Or. 540 (16 P. 161); Smith v. Kelly, 24 Or. 464 (33 P. 642). This rule is particularly applicable when in the case of two enactments one is the complement of the other, * * *: Barringer v. Loder, 47 Or. 223 (81 P. 778)." *Page 144
If this is the correct construction to be placed on statutes, it would apply much more forcibly to the provisions of the constitution. Provisions in the constitution are not repealed by implication, neither should they be rendered nugatory by judicial fiat unless the inconsistency or repugnancy is so plain and so palpable that it is impossible to reconcile one with the other.
Mitchell v. Lowden, 288 Ill. 327 (123 N.E. 566), was a case where the Supreme Court of Illinois was construing a general statute. It used the following language:
"Section 10 of the act provides that the department of public works and buildings may make use, in the construction of the roads, of any paved road of a proper, durable, hard-surfaced type which may have been constructed by any county and the state, or by the county alone and accepted by the state, and in such case an amount of money equal to the share of the actual cost of such paved road paid by the county shall be allotted to the county, to be used, at the option of the county, either in the payment of any bonds issued by the county and used to improve its state-aid roads, or in the improvement of its state-aid roads by the construction thereon of a durable, hard-surfaced road under the direction and to the satisfaction of the department of public works and buildings."
This clearly shows that the law was general and applicable to all such similar conditions.
The writer is firmly of the opinion that the provisions of the constitution, above referred to, were especially intended to prohibit the kind of legislation enacted as chapter 298, Oregon Laws, 1933.
"For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be *Page 145 placed in the position of those whose language he is to interpret." Oregon Code 1930, § 9-216.
I do not wish to be understood as saying that the state could not take over certain roads and incorporate them into the state highway system and in doing so make allowance to the district that built the roads, but that may only be done by a general law made applicable to all districts where the facts are the same.
The judgment should be reversed and the writ dismissed.
RAND, C.J., concurs in this opinion.