"In determining the validity of an act which has been attacked, the courts must and should resolve all doubt in favor of its constitutionality; and if the statute is reasonably susceptible of two constructions, one of which will render it constitutional and the other *Page 130 unconstitutional, the former will prevail. Unless the nullity and invalidity of the act are placed beyond reasonable doubt in the judgment of the courts, the act will not be declared void."Anderson v. Thomas, 144 Or. 572 (26 P.2d 60).
The act here in question applies to two highway improvement districts, to wit: Salmon River-Grande Ronde highway improvement district, which has constructed the Salmon River Cutoff highway between Valley Junction in Polk county and Otis in Lincoln county, and the Umpqua highway improvement district, which has constructed the highway between Drain and Reedsport in Douglas county. Both of these highways have been taken over by the state highway commission and incorporated into our state highway system, of which they are an important part.
Both highways were built under the direct supervision of the highway commission, and the highway specifically referred to in this litigation, i.e., the Salmon River Cutoff, was constructed according to the standards and specifications of a state highway.
There is nothing in the pleadings to indicate that any highway improvement districts other than the two mentioned in the act under review have been organized in this state pursuant to chapter 399, Laws 1921. It was, however, stated in the oral argument that one or two other such districts had been organized but that the road construction done by them was inconsequential. Moreover, there is nothing in the record to indicate that the road construction done by road districts, other than the two mentioned in this act, was of any benefit to the state, or that it was not local in nature instead of an integral part of the state highway system, as are these two highways, or that such construction *Page 131 has been taken over by the state highway commission.
With these meager facts before us, how then can we say that the act in question, although it mentions only two road improvement districts, is not general in character and does not apply to all road districts similarly situated and organized? Are we to discard the presumption that the acts of a coordinate branch of the government are constitutional, by assuming that certain facts may or may not exist? Are we not reversing the order and requiring those who rely on the validity of the act in question to prove beyond a reasonable doubt that it is constitutional, instead of requiring those who assail it to point out the specific constitutional provision with which the act is clearly in conflict?
An investigation, however, discloses that there are in fact two other improvement districts which have been organized under the 1921 statute to which reference has been made. These are the Diamond Lake and Nestucca districts. One of those districts has constructed a short road for local convenience and the other district is attempting to build what would probably be considered a local road. It would not appear that either of such road projects is an important link in a state-wide highway system. They have not been taken over by the state highway commission and probably will not be, unless all the roads in the state are brought under the jurisdiction of the commission.
Road improvement districts like the one in question are entirely different and distinct from the several counties of the state. Property owners in these road districts pay their proportionate share toward the construction and maintenance of county roads and *Page 132 state highways, and in addition thereto have contributed a considerable sum of money toward the acquisition and construction of highways which are by no means local in character or in their use.
If we were to follow the reasoning of Mr. Justice ROSSMAN in his construction of the decision in Baker v. Hickman County,164 Tenn. 294 (47 S.W.2d 1090), we should of necessity be compelled to hold that the various legislative acts under which our highway system has been constructed and maintained are unconstitutional as "conferring benefits upon some not equally available to all".
Multnomah county was for a long time excluded from the benefit of the bond issues for road construction and the revenues derived from motor vehicle licenses, and the tax on gasoline retained by the state was spent for many years by the state highway commission, by mandate of the legislature, in all the counties of the state of Oregon except Multnomah, in the construction and maintenance of highways.
Moreover, if such construction is to be given to Article I, section 20 of our constitution, how can we justify the highway commission's taking over some of the roads built by some of the counties, such as the Columbia River highway in Multnomah county, and agreeing to maintain them, unless it takes over all the highways in all the counties under the same conditions? Is not the agreement by the state through the highway commission to maintain certain highways and not others "conferring benefits upon some not equally available to others", as much so as was effected by the act in question? It is certainly a benefit to the citizens of a county to be relieved of the expense incident to the upkeep of some of its highways. *Page 133
The act in question is in nowise a law "for laying, opening or working on highways". The legislative acts assailed in bothMaxwell v. Tillamook County, 20 Or. 495 (26 P. 803), and Searsv. Steel, State Treasurer, 55 Or. 544 (107 P. 3), provided for the appointment of commissions to supervise and direct in each instance the construction of a particular highway. The purpose of the inhibition contained in subsection 7 of section 23, Article IV, of our constitution is well set forth in Maxwell v.Tillamook County, supra, as follows:
"It is, however, manifest from the construction given to these words special or local, as applied to statutes, that the purpose of the prohibition against the general assembly passing local or special laws in the enumerated cases, including the laying out of highways, was to secure a harmonious system of general laws upon these subjects, and to avoid the mass of in-congruous acts, each applying to some limited portion of the state, or some particular individual or special case, as would inevitably result. This would prevent any distinction in the operation of laws between different localities, as well as between persons or things in respect to these subjects. It would require as to these matters that they should be regulated by general laws of uniform operation throughout the state. Turning now to the act in question, it is entitled an act to appropriate ten thousand dollars to aid Tillamook county in the construction of a wagon road wholly within its boundaries. It appropriates the money for that purpose out of the general fund of the state. It appoints the commissioners and viewers to locate the road, authorizes them to employ some suitable person to superintend its construction, provides that the expense of damages and locating the road shall be paid out of the county funds, and makes provision for the payment of ten thousand dollars on the completion of the road. It is thus seen that the law applies and operates exclusively in that limited portion of the state known as Tillamook county." *Page 134
If it is proper for the state to appropriate to its highway system a suitable county road and to pay the county the actual cost of such road, as was done in Mitchell v. Lowden, 288 Ill. 327 (123 N.E. 566), what constitutional objection could there be to the state's taking over some road built according to its standards and specifications and under its direction and supervision by some road district, and reimbursing the road district for a trifle over half of the actual cost of such road? The state highway commission undoubtedly had the right to condemn this particular highway, as the state is superior to any of its subdivisions, and if it had resorted to eminent domain the state undoubtedly would have paid a great deal more than it is required to pay under the act in question. If the state highway commission could have singled out such a highway and have thus acquired it, the legislature undoubtedly could have provided by law for its acquisition. If this road could have been acquired by condemnation, it could, under authority of law, be acquired by purchase.
The mere fact that this road had been taken over and made an important connecting link in the state highway system prior to the passage of this act does not render invalid the appropriation made by the legislature to the road improvement district to reimburse the district in part for the actual cost of the road. There is nothing, in such a case, to prevent the legislature from considering that the state, charged with the duty and responsibility of constructing and maintaining a comprehensive highway system, is morally bound to make such an appropriation. The authorities are legion that moral obligation alone is sufficient to sustain legislative appropriation.
Both of the dissenting opinions seem to hold that the act in question is unconstitutional because it is *Page 135 not, according to the views therein expressed, general. If by general laws the legislature can, as the writers of those opinions seem to intimate, reimburse the counties for the $25,000,000 which they have paid toward the construction of roads which now form a part of the state highway system, we can look only to the sound judgment of the members of the legislature to steer clear of the yawning abyss which has been opened by these dissenting opinions in an attempt to prevent the payment of a trifle more than one-half of what it would have cost the state to acquire the right of way and construct the roadbed of what it considers a vital part of a great system of highways. It is not, however, necessary to cross other bridges until we reach them. Suffice it to say that the courts have nothing to do with the wisdom of legislation or the policy of the state.
The decree appealed from should be affirmed.