Cabell v. City of Cottage Grove

BRAND, J.

(dissenting). I agree that the decree should be reversed and remanded for a declaration of rights, but I dissent from the conclusion of the majority that the state has exceeded its power by constructing curbs which constitute an obstruction of access to the state highway from the city streets in question.

The opinion of the court contains a characteristically fair statement of the issues involved, but a brief outline of the perplexing problem is appropriate. The Pacific Highway, an interstate thoroughfare, has been routed through the city of Cottage Grove and in the vicinity with which we are concerned constitutes a four-lane arterial way. In that vicinity the highway was located and established by the commission over land acquired by it through the expenditure of state and federal, not local, funds. The state highway does not run along any street. It runs along its own right of way which never was a city street of Cottage Grove. At three points, which are in issue here, it runs across what is or was a city street. The commission has constructed curbs on the border and within the boundaries of the state highway, which curbs are not broken to permit access to the state highway from the ends of the three city streets in question. No such obstruction exists as to the other streets which enter the highway. The issue relates only to the power of the

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state over that area which was within the three streets and over which the state highway now runs. The problem is identical in each of the three locations. The result of the obstruction is that persons who, prior to the construction of the state highway, could drive their vehicles along the city street for the full length thereof cannot now drive into or across the state highway from those particular streets. The city contends that the state highway commission, by constructing a continuous curb along the edge but within its rights of way, has “closed a street”. It contends further that the commission has not been authorized by statute to “close” city streets and that the city has the charter power to prevent and remove the curbing as an obstruction to a city street.

This is a controversy between two instrumentalities of the state, the one general and the other local, the one a state commission having jurisdiction over state highways which form through arteries, of state, national and international importance, the other a municipality having local powers and duties only, relative to city streets under charter provisions.

In the absence of express legislative grant of authority to a city, its powers are limited to matters of local, as contrasted with general,. affairs, and even as to its control of its streets, local in nature and use, the city must yield to statutes of general statewide scope. See

Cole v. City of Seaside,

80 Or. 73 , 156 P. 569 (1916);

In re application of Boalt,

123 Or. 1 , 260 P. 1004 (1927);

Rose v. Port of Portland,

82 Or. 541 , 162 P. 498 (1917);

City of Woodburn v. Public Service Commission,

82 Or. 114 , 161 P. 391 (1916);

Twohy Bros. Co. v. Ochoco Irrigation District,

108 Or. 1 , 210 P. 873 , 216 P. 189 . The type of construction and operation of arterial ways and the location of facilities for access to them, all directly

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affect the safety of the general travelling public and present problems which are primarily of general and not local importance.

If there be uncertainty in the meaning of a statute involving the allocation of power between the statewide authority and the local authority, and if the subject matter of the statute is a state highway, then I think it clear that reasonable doubts should be resolved in favor of the state-wide authority.

A public way which is under the control of municipal authorities and which primarily serves only local purposes, is a street, and a public way established by the state for state-wide through traffic and under the control of the state commission is a state highway. The same physical space cannot be at the same time both a city street and a state highway. 4 McQuillin Municipal Corporations, 2nd Ed., § 1387. The distinction between the two is found in the character of its use and the nature of the jurisdiction over it.

Heiple v. City of East Portland,

13 Or. 97, at 104 , 8 P. 907 ;

Cole v. City of Seaside,

80 Or. 73 , 156 P. 569 . WTign the state highway was established, it ran athwart what had been a small cross section of a city street, but when so established the entire area within the exterior boundaries of the state highway immediately became subject to the complete jurisdiction and control of the State Highway Commission. I think that that cross section of what had been city street ceased to be such and became for all purposes a part of the state highway. When the city street reached the boundary of the new state highway, it ceased to be a street. It was not “closed”; as a “street” it was ended, not by a curb but by a legally established state highway. To be sure, what had been a street was still a public thoroughfare, but its character was changed, and jurisdiction and con

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trol became vested in the State Highway Commission with authority to “construct, maintain, operate and improve” to as full extent respecting this portion of the highway as existed with respect to the other portions, except in so far as the legislature expressly reserved to the municipality some rights respecting the area in question.

The statute provides:

“The commission shall have full power to carry out the provisions of this act * * * is given general supervision and control over all matters pertaining to * * * location, construction, improvement, * * * operation and administration of state highways # * * and all other matters and things necessary or proper or deemed necessary or proper * * O. C. L. A. 100-114. “In addition to such general powers as may be necessary and incident to the performance of its duties under the provisions of this act the commission hereby is given specific power and authority to do and accomplish the following things:

“(1) Select, establish, designate,

construct, maintain, operate and improve

or cause to be constructed, maintained, operated and/or improved a system of state highways * * O. C. L. A. 100-115. (Italics mine.)

‘ * Complete jurisdiction and control of streets taken over by the highway commission as provided in this act shall be vested in the highway commission and shall extend from curb to curb, or, if there be no regular established curb, then such control shall extend over such portion of the right of way as may be utilized by the highway commission for highway purposes. Eesponsibility for and jurisdiction over all other portions of such street or road shall remain in the city or town.” O. C. L. A. 100-124.

The curbs in question which obstruct access to the highway are built within the limits of the state highway

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over which complete jurisdiction and control was vested in the commission. They are on a portion of the “right of way * * * utilized * * * for highway purposes”. They are not, then, erected in city streets. They do not close a city street; they mark its end. The provision that “responsibility for and jurisdiction

over all other portions

of such street * * * shall remain in the city * * *” (italics ours) implies that the city has no responsibility for or jurisdiction over those portions of city streets “taken over” by the commission. How, then, can they justify their threat to tear out the curbs within the boundary of the highway on the purported authority of a local charter?

Narrowly stated the problem is this: Where a city street runs at approximately right angles to a state highway and its end abuts upon a state highway, can the commission obstruct direct access to the highway by a curb built thereon? The real problem is broader than this, and assuming that the state highway is laid out athwart a city street, the problem is not merely whether the state commission has power to lay a curb in the lateral margin of the highway. The consequences of a ruling against the highway commission are more far-reaching. If the highway cannot obstruct access from the street to the highway, then, by the same token, it cannot construct a divided highway, with parldng, curb or other obstruction running longitudinally along the center of the state highway at any point where the state highway crosses what was once a city street. If the city can insist that the cross section of the street over which the state highway runs is still a city street, and that direct access cannot be obstructed by a curb on the margin of the state highway, then the city can also, by the same reasoning, insist that free access be maintained clear across the highway and can insist upon the

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removal of any obstruction along tbe center of the state highway which may in many instances separate, for the purposes of safety, traffic

going

in opposite directions.

The city claims power under a local charter to summarily remove a structure from a state highway over which complete jurisdiction and control is vested in the State Highway Commission, because it constitutes an obstruction to what was formerly a local city street. That structure (a curb) is a well-recognized part of ordinary highway specifications and construction. The commission is authorized to make specifications and to construct and operate. I am not asserting a power in the commission to regulate traffic after the manner of a super traffic officer. What I do assert is the granted power to construct highways, which includes the incidental construction of curbs, divided highways and the like.

I think we should conclude that the statutes quoted do include the power to construct curbing within and along the margin of state highways and at the points in question here. Any obstruction placed outside of the boundaries of the state highway should, of course, be removed.

There is in this case no issue involving abuse of administrative (or delegated legislative) power by the highway commission. Any such abuse by the arbitrary exercise of delegated power would, of course, be stricken down. In this instance, wherever access to the highway from the end of the street has been obstructed by a curb, there has also been provided ample access to the highway on streets parallel to the one subject to the obstruction and only one block distant.

No

traveller from any point could be subjected to more than the slight inconvenience of travelling less than one-half of

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the way around a city block in order to gain access to the state highway. In the exercise of jurisdiction and control over state highways there is imposed upon the highway commission the duty of so constructing arterial ways as to avoid, so far as reasonably possible, the construction or existence of traffic hazards. In this respect the problem affecting state highways is different from that which exists upon city streets. The complaint alleges and the demurrer admits that the highway here carries a daily volume of traffic of 2,160 cars and that the commission is of the opinion that unnecessary hazard to traffic will be created if access to the highway is permitted at the points in question.

Some reliance, and with reason, is placed by the majority upon the provisions of the portion of the statute which provide:

“* * * All cities shall retain the right to grant the privilege to open the surface of any such street or road, but all damage occasioned thereby shall promptly be repaired by the city or town, either itself or at its direction, and the responsibility for the cost thereof shall be upon any such city or town permitting such opening. Cities and towns shall retain the exclusive right to grant franchises over, beneath and upon any such street or road, and to control and regulate such franchises, and the utilization thereof.” O. C. L. A. 100-124.

I do not think these provisions are conclusive. If, aside from the franchise provision last above quoted, the general language of the statute which grants jurisdiction and control to the highway commission, does in fact authorize the obstruction of access by a curb, and if that authority appears to conflict with the authority to grant franchises which is vested in the city, then we should seek a construction which would harmonize the two grants. In that event, it would seem that the power

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and authority of the highway commission would be paramount and that of the city in the exercise of its rights to grant franchises would be subordinate.

“Municipal control and regulation of streets must harmonize with the laws and policy of the state. This is so because all public highways are under the paramount control of the state. ‘All power of lesser municipalities over such streets is simply delegated power from the state whether exercised by the county, the city, or the town. It follows therefore that no municipality has power to make any law affecting public highways or their use which contravenes the policy of the state touching such control and use’ * * McQuillin Municipal Corporations, 2nd Ed., p. 68 § 1415.

I suppose that the legislature contemplated chiefly, if not exclusively, that franchises might be granted by the city along rather than across the state highway, in which case there would be no interference between the powers of the highway commission and those of the city. Nor does the reservation to the city of the right to open the surface of the highway conflict with the power of the commission. An opening if made even for the purpose of crossing the highway would not conflict, for such opening, if made by the city, must be promptly repaired by it. The only conflict with the power which I think has been vested in the commission would arise if the city attempted to grant a franchise to a bus line or car line or an overhead power line to operate from the city street into or across the highway within the former lines of the street. If that were attempted, a real conflict would arise by reason of the fact that the state had barred access on the margin or perhaps along the center of the arterial way. In the event of such a remote contingency and conflict, I should say that the statutory right of the local instrumentality to grant

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such a franchise would have to yield to the power of the State Highway Commission to construct a highway, including the power to build curbs or establish divided highways in the paramount interest of the travelling public. In the case at bar the only limitation upon the power vested in the city to grant franchises would be to require that a bus or street-car line to which a franchise might be given, should enter the state highway at a point one block distant rather than at the point where access has been obstructed by the construction of the state highway. Such a construction of the statute would, I think, remove the ambiguity which is apparent in the grant of possibly conflicting powers to different instrumentalities of the state. It would also prevent the possibility of multitudinous interferences by local municipal bodies with the proper and safe construction of highways by the state commission.

We may judicially know that if vehicles are given access to an arterial way at the end of every city block in every small city, the free flow of through traffic will be impeded, and the traffic hazard increased. I think the power to deal effectively with such hazard has been granted to the highway commission and that it may, within reasonable limits, control vehicular access to the highway through its power to control the type of construction thereon. Neither the record of the State Highway Commission of Oregon nor any principle of law justifies us in the expectation or fear that this power will be abused.

We are not here dealing with the rights of any abutting property holders. If they have been deprived of any property right by the action of the commission, the constitution gives them redress.

It may be suggested that the case of

Heiple v. City of East Portland

(supra) is inconsistent with my con

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elusions. In that case the plaintiff was an abutting property owner who had been assessed by the city for the improvement of a highway. His contention was that the highway was a county road and not a city street and that therefore the city had no power to assess his property for improvement thereof. The highway in question was originally a county road. Thereafter the city was incorporated, the land in question included within its limits, and by a subsequent act, authority was conferred upon the city to control the public highway within its territory, and the highway was excepted from jurisdiction of the county court of Multnomah county. The city contended that it thereby acquired the right to make assessments for benefits against the abutting property. The supreme court on appeal held that the city had no such right and that the legislative action had not transformed the county road into a city street for such purposes.

The first distinction is to be found in the fact that the Heiple case was a controversy by a private property holder against the city. It was not a controversy between two governmental agencies, the one general and the other local. It may well be that, as between an abutting property holder and the city, on inquiry as to the validity of a street assessment a public way would be deemed to be a county road, because the right to assess for benefits had never been granted to the city, whereas in a controversy between the highway commission and a city the way might well be deemed to be a state highway for purposes of improvement, especially where the city had lost all power to make future assessments for benefits.

Furthermore, it appears from the opinion in the Heiple ease that the controlling consideration which

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led the court to hold that the thoroughfare had not become a city street for the improvement of which assessments could be made, was to be found in the fact that the original county road imposed upon the abutting property holders no burden of liability for assessments and granted to no governmental body the power to make assessments for benefits. The court pointed out that the statute which conferred control of the public highway upon the city should not be construed to subject abutting property to new and additional burdens, namely, the liability to assessment.

In the case at bar the situation is reversed. Property of abutting owners which was presumably subject to assessment by the city is relieved of the burden of liability to assessments when the State Highway Commission takes over a portion of the city street and assumes complete jurisdiction and control thereof. I think no one would contend that any assessment for benefits could be levied against abutting property on account of any improvement of the thoroughfare after the “street” had been “taken over” as a state highway. The city undoubtedly has charter power to assess the cost of improvements on city streets against abutting property. The loss of this power as to the portion of thoroughfare in question, I think argues that the portion in question should no longer be deemed a street.

Somewhat similar distinctions might be made concerning the case of

State of Missouri v. Missouri Utilities Co.,

339 Mo. 385 , 96 SW (2d) 607 , 106 ALR 1169 , cited by the majority. That case, although not involving the rights of abutting property holders, did involve property rights of a light and power corporation in the public thoroughfare.

Mr. Justice Rand concurs in the foregoing dissent.