Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/16

 Domain, and, particularly so, when it sought to appropriate property for use under its duties as a proprietor, e. g. as the owner of public utilities.

The streets of a city do not belong to a city, but to the people of the whole State, as highways, and no control can be exercised over them, and no franchise can be granted over them unless authorized by the Legislature or by the Constitution. This was the law, at least, when the amendments of 1906 were adopted.

The law on this subject is well stated in 3 Elliott on Railroads (2nd Ed.), Section 1076, where it is said:

"The Legislature of the State represents the public at large and has paramount authority over its public ways, including the streets in cities as well as country roads. 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. Any lawful permission, whatever it may be called, must proceed from the State Legislature and the validity of grants is determined by the Constitution and other tests applied to all legislation. 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."

That this was the law in Oregon is well established by a number of decisions of the Oregon Supreme Court, among which are the following: