Frederick Van Voorhies Holman

“ The power of eminent domain has existed in all ages as an acknowledged attribute of sovereignty. It is inherent in every sovereign Government, and is not conferred by Constitutions, but is limited and regulated by them. It cannot be surrendered by grant or contract, since its continued exercise is essential to the existence of organized society. This power exists in each of the States of the Union, whether it is expressly conferred by the Constitution or not. ”

“ It is a hard matter for any Court, without precedent, to take into account what may be the effect of a decision or opinion in one case on other cases or matters not before decided by any Court. And this is largely the position the Oregon Courts find themselves in. When the Supreme Court found what the effect would be in holding that the Legislature could not enact, amend or repeal any municipal charter in the State, and that a municipality might attempt to exercise powers in derogation of the sovereignty of the State itself, it became a serious matter. ”

“ A city occupies, as it were, a dual relation to the State—the one governmental or political, and the other proprietary or private. In its governmental or political capacity it is nothing more than a mere governmental agent, subject to the absolute control of the Legislature, except as restricted by the Constitution, and such property and easements as it may have in public streets and ways is held by it in such capacity, and at the will of the Legislature. ”

“ The power to alter, amend, or repeal the charter of a public corporation must necessarily exist without limitation in the sovereign, otherwise there would be 'numerous petty governments existing within the State, forming a part of it, but independent of the central of the sovereign power.' But in Oregon, by the amendments of 1906, is this sovereign power lodged in the legal voters of the respective municipalities? ”

“ To appeal a civil action to the Supreme Court, merely on errors of the lower Court, will amount to nothing if there has been a verdict of a jury, for "no fact tried by a jury shall be otherwise re-examined in any Court of this State," excepting only when a case is appealed to the Supreme Court, and the whole testimony, etc., is attached to the bill of exceptions. ”

“ The people of this State by the Constitutional amendment, heretofore quoted, have seen fit to confer upon municipal corporations the right to enact their own charters, the only limitation upon that right being that such charters shall not conflict with the Constitution or the criminal laws of this State. We take it, therefore, that within the limits of the municipality, and for those purposes which are purely municipal, the City of Portland may include in its charter by amendment any provision or right that the Legislature might have granted before the Constitution was so amended. ”

“ And so it came about that without changing the voters, except by numbers, as Oregon is a growing State, the people who supposed they could not govern themselves by a representative form of government, to which they were accustomed, adopted a democratic form of government, of which they knew nothing as to its workings, evidently believing that as they were incapable of electing proper representatives they were capable of enacting their laws by popular vote, and as conditions were unsatisfactory they could be bettered by upsetting the existing order. ”

“ Special acts cannot be passed where the Constitution forbids. The Legislature can act in the granting of permission independent of subordinate governmental agencies of the State, though the tendency of later years, which is well grounded in reason, is for the State to confer upon local municipal authorities the right to represent and to act for it in the granting of permission for the occupation or use of the public highways. The power, however, when exercised by municipal or other subordinate public corporations, must be expressly granted or appear by indisputable implication. ”

“ In the absence of provisions in the Constitutions, the Courts have considered that the principle was so universal and fundamental that laws not recognizing the right of the subject to compensation would be void. The Constitutions of the States do not confer upon the Legislatures the power of eminent domain, but they recognize its existence and attach conditions upon the exercise of the power. ”

“ Can it be truly said that the mere right to enact or amend a charter is a grant or a delegation of the sovereign power of Eminent Domain without limitation? And, if limited, are its limitations other than Section 18 of Article I of the Oregon Constitution, which is:
Private property shall not be taken for public use, nor the particular service of any man be demanded, without just compensation ”

“ If no notice is provided by law, no effective notice can be given, since a notice not authorized can have no legal force, and, without a notice authorized by some valid statute, there can be no due process of law. ”

“ They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State Legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant. ”

“ Municipal corporations have no inherent power to create other corporations or grant franchises, and they cannot give a railroad company the right to lay its tracks and operate its road in their streets unless they are authorized, either expressly or impliedly, to do so by the Legislature. Authority to use highways in this way must come, either directly or indirectly, from the Legislature.
In 3 Abbott on Municipal Corporations, Section 897, it is said:
The State is the ultimate and original source of power in respect to the establishment, maintenance and use of highways. ”

“ Certain powers are also incidental to corporations, and will be possessed unless expressly or by implication prohibited. Of these an English writer has said: 'A municipal corporation has at common law few powers beyond those of electing, governing, and removing its members, and regulating its franchises and property. ”

“ These theorists seem to believe that all human ills—with the possible exception of physical ones—could be done away with by amendments of Constitutions and municipal charters, and by the passage of statutes and ordinances. ”

“ But they forgot—or more likely, as they could not forget what they never knew—they were unaware that to upset existing conditions is to create new conditions without precedents, and that the first thing to do is to establish new precedents that the new order may exist and continue. ”

“ It is manifest from the provisions of this amendment" (Section 1 of Article IV) "that it was intended to be self-executing; that is, its provisions were designed to become effective without awaiting legislative aid. Under such circumstances supplemental laws are not a prerequisite to the effectiveness of a Constitutional provision, and the people may proceed in accordance therewith until aided by such additional enactments as the law-making department of the State may provide. ”

“ Says an eminent American author: 'As the power to take is universal, so it is absolute; that is to say, the Legislature are the sole judges of the existence of the exigency which demands the sacrifice of the rights of individuals.' 'I admit,' says Mr. ”