167 P. 800 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
In 1903 the legislature 'passed an act providing the manner in which the inhabitants of a county might change their county seat. This act, incorporated in the Code as Sections 2877-2885, provides that a petition signed by qualified electors, equal in number to three fifths of the votes cast at the last general election, shall be necessary to initiate the proceeding. Plaintiff contends that this statute provides the only method by which a county seat may be changed without an act of the legislature or of the people under the initiative, providing for the change. It is admitted that the act of 1903 was not complied with' and plaintiff’s chief insistence is that the proceeding's taken were for this reason nugatory.
The first of these amendments was adopted by the people in 1902. It provided that on petition of not to exceed eight per cent of the legal voters of the state,
In 1906 the Constitution was further amended by the addition of Section la to Article IV. This section is in part as follows:
“The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation.”
In 1907 the legislature passed an act providing a procedure for the enforcement of this constitutional provision. This act is found in the Code as Sections 3470-3485. '
The constitutional provision has frequently been before this court for construction. It is held in Schubel v. Olcott, 60 Or. 503 (120 Pac. 375), that the amendment to the Constitution adopted in 1906, as applied to districts other than cities and towns, is not self-executing, but that Sections 3470-3485 of the Code provide an appropriate procedure for putting it into effect. It is squarely held by this decision that a county is a municipality or district within the purview of this constitutional amendment. Further light has been thrown on the question by two of the recent decisions of this court: State ex rel. v. Port of Astoria, 79 Or. 1 (154 Pac. 399), and Rose v. Port of Portland, 82 Or. 541, 557, 558 (162 Pac. 498), These two opinions
“By the terms of Article IV, Section la, every municipality, whether it be a city or town, or whether it be a port, has the right to employ the initiative and referendum powers ‘as to all local, special, and municipal legislation,’ and this means that such municipality may apply the initiative and referendum powers when enacting municipal legislation to carry out and make effective an authority previously granted. * * It seems clear then that municipal legislation, within the meaning of Section la of Article IV, when applied to municipalities, other than cities and towns, refers to legislation which is permitted and made necessary for carrying into effect a lawful power previously granted. * * A port has no right to legislate unless that right is first created by law; but, when the right to legislate is conferred, then Section la of Article IV immediately operates, and the initiative and referendum are at once made available, and the exercise of such power to legislate is municipal legislation.”
In Rose v. Port of Portland, 82 Or. 541, 557, 558 (162 Pac. 498), it is said:
“No subdivision of government like a port or district can exercise power unless that power is first granted by some lawmakers authorized to legislate that power to the municipality or district.”
A county, like a port, is a municipal corporation other than a city or town: Cook v. Port of Portland, 20 Or. 580, 584 (27 Pac. 263, 13 L. R. A. 533). The language quoted from the above opinions is as applicable to a county as to a port. It is settled law, therefore, that the amendment of 1906 is applicable to counties;
“The County Court of such new county shall have power to temporarily fix the county seat, and such location shall remain the county seat until the first general election thereafter, when the qualified voters of such new county are empowered to vote for and select the place of county seat in the manner provided by law. Immediately after the selection of such county seat either by the County Court or by the canvass of the returns of votes cast at the election for that purpose, the County Court shall issue its proclamation and publish the same in a newspaper published in such new county, if there be one, and if not by posting a copy of such proclamation in each election precinct in such county announcing the selection and location of such county seat.”
It will be noted that by this statute the legislature gave the people of the new county the express power to
“The initiative and referendum powers * * are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in and for their respective municipalities and districts. ’ ’
The words “of every character” must mean something and were inserted for a purpose. They forbid a narrow technical construction of the word “legislation.”
“Legislation” is defined by March’s Thesaurus as the “enactment of laws.” Bouvier, Words and Phrases, 18 Am. & Eng. Enc. Law (2 ed.), 822, and 25 Cyc. 181, unite in the definition, “The act of giving or
We think the county seat of Jefferson County has been lawfully changed and the decree is affirmed.
Affirmed. Rehearing Denied.
Rehearing
On Petition for Rehearing.
On petition for rehearing. Denied.
Messrs. Huston & Huston and Mr. W. P. Myers, for the petition.
Mr. William 8. XJ’Ben, contra.
Department 2.
delivered the opinion of the court.
It is earnestly insisted in plaintiff’s petition for a rehearing that we have erred in the construction placed upon Section 6 of Chapter 10 of the Session Laws of 1913. This section authorizes the qualified voters of a new county “to vote for and select the place of county seat in the manner provided by law.” It is contended that the only provision of law which the legislature had in mind and to which the above statute can be referred is Chapter 3 of Title XXV, comprising Sections 2877 to 2885, L. O. L. These sections of the Code are an act passed in 1903 empowering the inhabitants of any county to remove their county seat. The act provides that on petition of three fifths of the electors of any county it shall be the duty of the County Court to submit at the nest general election the question of removing the county seat. The people of the several counties required no grant from the legislative assembly of 1913 in order to make this remedy available to them. They had enjoyed for ten years the powers conferred by Sections 2877-2885, L. O. L. Section 6 of the Act of 1913 pur
We are accustomed to the exercise of popular power by majorities. When the legislature empowers the qualified electors of the new county to vote for and select the place of county seat, the language, construed in harmony with the ordinary use and meaniiig of the words used, imports a grant to the majority to act in the premises, not a grant conditioned on preliminary action by three fifths of the electorate.
Section la of Article IV was incorporated in the Constitution in 1906. In 1907 the legislature enacted a statute to make it effective. The case of Schubel v. Olcott, 60 Or. 503 (120 Pac. 375), was decided in 1912. . In his opinion in this case Mr. Justice Bean says:
“Article IV, Section la, and Article IX, Section la, of the Constitution, are not self-executing in respect to counties, as they make no provisions regarding the manner of their enforcement. By the first of these, the initiative and referendum powers reserved by the people are further reserved to the legal voters of every municipality and district as to all local, special and municipal legislation of every character in their respective municipalities and districts. By the second, the people of the several counties are empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted. In Article IV, Section la, it is specifically provided that*400 the manner of exercising such powers shall be prescribed by general laws, except as to cities and towns; neither section containing rules by means of which this right may be given the force of law as regards local legislation in counties. * * Hence we must look at the general laws of this state for the manner of executing these sections of the organic law.
“Turning to the legislative enactment of 1907, being Section 3470 et seq., L. O. L., it appears that the legislature intended to and did make all the necessary rules for carrying into effect the initiative and referendum provisions of the Constitution.”
“A county is a public corporation, classed with cities, towns, and villages, and invested with subordinate legislative powers to be exercised for local purposes connected with the public good, and subject to the control of the State: 2 Kent, *275.”
The legislative assembly of 1913 was familiar with Article IV, Section la of the Constitution, with the Act of 1907, Sections 3470-3485, L. O. L., and with the construction so recently placed upon these provisions by this court. The natural interpretation of Section 6 of the Act of 1913 connects it with the foregoing provisions of law, as defining the manner of exercising the power granted.
Nor does the concluding sentence of Section 6 militate against the correctness of the above reasoning. This concluding sentence is as follows:
“Immediately after the selection of such county seat either by the County Court or by the canvass of the returns of votes cast at the election for that purpose, the County Court shall issue its proclamation and publish the same in a newspaper published in such new county, if there be one, and if not by posting a copy of such proclamation in each election precinct in such county announcing the selection and location of such county seat.”
It is provided by Section 3420, L. O. L., that on the completion of the canvass of the votes cast in each
It is contended that we are in error in holding that the selection of a county seat is legislation within the purview of Article IY, Section la of the Constitution. Plaintiff cites McWhirter v. Brainard, 5 Or. 426, 430, and the following decisions wherein the above case is discussed: Baker County v. Benson, 40 Or. 207, 221 (66 Pac. 815); State v. Corvallis & Eastern R. R. Co., 59 Or. 450, 458 (117 Pac. 980); Murdoch v. Klamath County Court, 62 Or. 483 (126 Pac. 6). We find no intimation in any of these decisions that the change of a county seat is not legislation. The question mooted in McWhirter v. Brainard was the constitutionality of the enabling act for locating the county seat of Union County. It was contended that the act was unconstitutional as delegating legislative power to the people. The constitutional amendments referred to in the former opinion have made this question purely academic in this jurisdiction. It was held that under the facts involved in McWhirter v. Brainard the change of county seat was to be deemed made by the legislature although it became effective, if at all, by a vote of the electors interested. This decision and the other decisions in which this case is dis
It is contended that we are in error in assuming that the stipulation on which the case was tried admits that the requirements of Sections 3470-3485, L. O. L., were complied with. The stipulation is in part as follows:
“If the Court shall be of the opinion that there are no omissions or defects in the notice of election given herein and which is set out in the amended complaint and also in the answer, that are sufficient to invalidate the election as to the said bill for a local law, being Numbers 322 to 323 on the official ballot, and shall also be of the opinion that proceedings for the location of the county seat may be had under the initiative and referendum provisions of Chap. 3, Title 25 of L. O. L., then the Court shall overrule the demurrer of the plaintiff and give judgment for the defendant dismissing this suit.”
This language is a clear waiver of any irregularities in complying with the above provisions of the Code. The legal effect of the stipulation is therefore as stated in the former opinion. We may add that the answer sets up in detail the steps taken in compliance with these provisions and there is no reply. The affirmative allegations of the answer are therefore admitted.
We adhere to the former opinion and deny the petition for a rehearing.
Affirmed. Rehearing Denied.