Article I, section 20, Oregon Constitution, provides:
"No law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens."
It is conceded that there are three or four other municipal corporations of the same type as the Salmon River-Grande Ronde Highway Improvement District created also under the provisions of 1921 Session Laws, chapter 399. Upon oral argument, we were informed that the counties of our state owe approximately $25,000,000 upon debts incurred in the construction of roads which now constitute portions of the state highway system under the jurisdiction of the state highway commission. We are, therefore, confronted with an act which singles out one municipal corporation and grants to it a privilege which is not available to any other, although it is known that others are in substantially the same debt condition as the favored one. In order to point out the invalidity of this act, we need only turn to one of the decisions cited approvingly *Page 146 by the majority; it is Baker v. Hickman County, 164 Tenn. 294 (47 S.W.2d 1090). The pertinent facts of that case were that the Tennessee legislature had enacted a law assuming the bonded debts incurred by Hickman county in the construction of highways which had become a part of the state highway system. Article 11, section 8, of the Tennessee Constitution, prohibited the legislature from suspending the general law for the benefit of particular individuals, and from enacting laws conferring benefits upon some not equally available to all. Thus, it is seen that this portion of the constitution is not dissimilar from Article I, section 20, of the Oregon Constitution. In holding the above enactment invalid, the court pointed out:
"Conceding, therefore, the constitutional power and authority of the General Assembly to transfer the entire burden of the cost of the state highways to the State, we have yet to consider the original contention of the Attorney-General that the Act of 1929, chapter 145, is rendered void and unenforceable by article 11, section 8, of the constitution, in that it operates to suspend the general law for the benefit of Hickman County, and confers upon Hickman County rights and privileges not extended to other counties in like situation.
"It appears to us rather obvious that the Act of 1929 does confer upon Hickman County rights which are denied other counties which may have expended money in the construction of roads subsequently made a part of the State Highway System. * * *
"We have recognized the validity of special acts affecting a particular county in its governmental capacity or functions. Redistricting Cases, 111 Tenn. 234, 272-283, 80 S.W. 750; State ex rel. v. Cummings, 130 Tenn. 566, 172 S.W. 290; Stokes v. Dobbins, 158 Tenn. 350, 13 S.W.2d 321. But in matters affecting the proprietary rights of counties, the cases have *Page 147 recognized that statutes conferring special benefits upon a particular county unduly favor the citizens of that county, to the prejudice of the citizens of other counties, and in violation of article 11, section 8, of the Constitution. State v. Burnett, 53 Tenn. (6 Heis.) 186; Weaver v. Davidson County, 104 Tenn. 315,59 S.W. 1105; State ex rel. v. Cummins, 141 Tenn. 318,210 S.W. 161; State ex rel. v. Stewart, 147 Tenn. 375, 247 S.W. 984; Berry v. Hayes, 160 Tenn. 577, 28 S.W.2d 50. * * *
"The State, having embarked upon a legislative policy of reimbursing its counties for their contributions toward the cost of the highway system, could only execute this policy by general law applicable alike to all counties. It could not have excluded Hickman County from the benefits conferred upon all other counties, and by the same rule it may not, in pursuance of such general policy, confer upon that county privileges which by the general law are denied to the others.
"We conclude therefore that the special law, Acts 1929, chapter 145, is in conflict with the Constitution of the State, article 11, section 8, and therefore void and unenforceable, and a declaration to that effect will be made the decree of this court. Costs of the cause will be adjudged against Hickman County."
The state can not lawfully bestow favors, and this single objection is sufficient to deny validity to the act before us.
The authorities upon which the majority depend to substantiate their conclusion that this act does not constitute an assumption of a debt within the contemplation of Article 11, section 8, of our Constitution do not sustain their position. The act under attack in Stoppenback v. Multnomah County, 71 Or. 493 (142 P. 832), authorized counties to construct bridges over rivers forming interstate boundaries, that is, over the Columbia river, and provided that, having constructed such a bridge, the county could deduct from the amount of taxes which it must annually collect and pay to the *Page 148 state the amount of the annual interest charge upon any bonds which it had issued to enable it to pay for the construction of the bridge. The act next provided:
"In consideration of such allowance and deduction for the payment of said annual interest upon said bonds, as herein provided, the title to the said bridge, viaduct or roadway and the full control of the same shall upon completion of said boundary or interstate bridge, viaduct or roadway be and become vested in the State of Oregon."
It is at once apparent that no debt was in existence when that act was passed. That act merely provided a means whereby the state lent its credit to any county which desired to build an interstate bridge. The bridge, upon completion, became the property of the state. The loan of the state's credit in support of the interest coupons, and the delivery to it of the bridge were simultaneous acts. If the legislature were now to assume payment of the bonds themselves, the situation would be similar to our present case. The act under attack in Kinney v. Astoria,108 Or. 514 (217 P. 840), was enacted by the legislature after much of Astoria's public property had been destroyed by a great fire which had rendered the city prostrate. The act authorized the city to withhold for a period of seven years' time all state taxes collected upon property within the corporate limits of the city "to be used exclusively for rebuilding, reconstructing and replacing public property in the city of Astoria". In rejecting the suggestion that this enactment violated Article 11, section 8, the decision pointed out: "No bonds had yet been issued and no debt incurred for replacing public property when chapter 280 was enacted, and moreover we are informed that no such bonds have even yet been issued." The act under consideration in Mitchellv. Lowden, 288 Ill. 327 (123 N.E. 566), authorized the *Page 149 Illinois Department of Public Works to provide the state with a system of public highways; to sell $60,000,000 of highway bonds; and wherever it found a suitable county road to appropriate the same upon payment to the county of a sum "equal to the share of the actual cost of such road". It is evident that the state was not assuming any debt when it acquired a county road. Possibly the county whose road was taken owed no debt whatever; if it was in debt, the size or character of it was immaterial. The act merely provided a means whereby the state could acquire and pay for roads. Acceptance of the road and payment to the county were simultaneous acts. It is hard to understand why the majority cites Baker v. Hickman County, supra. The decision in that case nowhere makes any mention of a constitutional provision against assumption of debts, but the decision expressly states that the purpose of the act is to transfer to the state the debts incurred by counties for roads which have become a part of the state's highway system.
In our present instance, we have the following order of events: (1) The district incurred the debt; (2) the road was built; (3) the state assumed charge of the road; and (4) finally, the state assumed the debt. It will be observed that the only decision with facts similar to the above (Baker v. Hickman County) upon which the majority depends construes the act as the assumption of a debt.
But, regardless of whether it is an assumption of the district's debt by the state, I feel clearly satisfied that the act contemplates the bestowal of a favor upon one district in violation of the above constitutional provision. This precedent will enable all debt-burdened municipalities to apply for individual favors. I, therefore, dissent. *Page 150