Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/15

 as being as much a part of the Constitution of the United States as though the principles therein announced had been expressly set forth in that Constitution itself.

Under said Section 2 of Article XI, as amended, of the Oregon Constitution, does not the limitation that amendments of municipal charters shall be "subject to the Constitution" make such amendments subject to these decisions of the Supreme Court of Oregon, which are a part of its Constitution? This applies not only to the powers of Eminent Domain, but also to the regulation and control of highways and the granting of franchises thereon.

It would seem that at the time of the adoption of the amendment of Section 2 of Article XI of the Constitution, in June, 1906, the power of the legal voters of a municipal corporation "to enact or amend their municipal charter, subject to the Constitution" did not give the power to such voters to give a municipality the right to exercise the powers of Eminent Domain by its own initiative, but that such powers could be conferred only by an amendment to the Oregon Constitution or by the Legislature, especially as the Oregon Supreme Court, in Straw v. Harris, 54 Ogn. 424, held that the Legislature, by a general law, "may at any time alter, amend or even repeal any or all of the charters within it," and could thus give to municipalities the right to exercise the power of Eminent Domain.

It must not be forgotten that a city has imposed upon it two kinds of duties or powers: one public, or governmental, as an instrumentality of the State, and under which it exercises police powers; the other is private, or proprietary, in which it is as a legal individual. It is in the latter capacity that it owns its water works and other public utilities, and as such it is liable for negligence as a private corporation or an individual is. I call attention tO' the learned and complete decision on this question by Mr. Justice Bean in Esherg Cigar Co. V. Portland, 34 Ogn. 282.

See also Wagner v. Portland, 40 Ogn. 394.

In the exercise of the power of Eminent Domain (which is not a part of the police power), a city had to be granted by the Legislature the right to exercise the power of Eminent