Carriker v. Lake County, 171 P. 407

Carriker v. Lake County

171 P. 407 | Or. | 1918

Lead Opinion

HARRIS, J. —

1. Article IX, Section 3, of the state Constitution provides that “no tax shall be levied except in pursuance of law.” Unless the jackrabbit bounty tax was levied “in pursuance of law” it would contravene the Constitution and therefore would be invalid. There is no law authorizing the levy of the tax in question unless it can be said that the measure voted upon by the people of Lake County became a law when a majority of the voters by their ballots registered their approval of the measure on election day. The validity of the the measure depends upon whether the voters had power to enact it into a law for Lake County. No act has ever been passed by the legislature or by the people of the whole state granting unto the voters of a county the right to enact a jackrabbit bounty law for themselves. It is argued by the defendants that Article IV, Section la, of the state Constitution of itself, without the aid of an enabling act passed by the legislature or by the people of the whole state in the exercise of the initiative, grants to the people of a county the power to pass a law for their county. The instant case is controlled by Rose v. Port of Portland, 82 Or. 541, 556, 557 (162 Pac. 498), where we held that

“both sections (Art. IV, Section la, and Art. II, Section 2, of the state Constitution) recognize the necessity of a charter as the measure of the legislative power to be exercised by corporations and both sections contemplate that no local subdivision of government except' cities and towns can appropriate legislative power unto itself”; and that “no subdivision of gov*244ernment 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.”

Although the municipality in Rose v. Port of Portland was a port and the municipality in the instant case is a county, nevertheless the legal principle involved is identical in both cases. The opinion in Rose v. Port of Portland was the unanimous opinion of this court and represented the careful and deliberate judgment of all its members; and therefore for the reasons stated in that opinion and on the authority of that precedent and of Barber v. Johnson, 86 Or. 390 (167 Pac. 800), we hold that the voters of Lake County were without power to authorize the tax and that the jackrabbit bounty measure is void. The demurrer to the complaint was properly overruled and the decree is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Moore concur.

Rehearing

Former opinion adhered to and rehearing denied July 2, 1918.

On Petition for Rehearing.

(173 Pac. 573.)

Department 1.

On petition for rehearing. Former opinion adhered to. Rehearing Denied.

Mr. T. 8. McKinney, District Attorney, Mr. William 8. ZJ’Ren and Mr. Arthur D. Hay, for the petition.

Mr. W. Lair Thompson, contra.

HARRIS, J. —

2. The defendants base their petition for a rehearing upon the contention that Article IV, Section la, of the State Constitution “is the grant of local legislative power and is itself the charter for all municipalities and districts.” The contention that the Constitution is itself the charter for all municipalities and districts necessarily proceeds upon the assumption that the entire power to enact local, special and municipal legislation is, by force of Article IV, Section la, and Article XI, Section 2, subtracted from the whole sum of legislative power and set at large so that all municipalities and districts may whenever they choose and without further aid exercise some or all of such subtracted power. This contention is discussed at length by what is said in Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498), and any further discussion of the question would only be a reiteration of what we have already said upon the subject. If Article IV, Section la, stood alone and by itself it might be construed to mean that every municipality and district could enact any local, special and municipal legislation; but this section of the Constitution does not stand alone. Article XI, Section 2, was submitted and adopted contemporaneously with the submission and adoption of Article IV, Section la. Each is a companion of the other. In obedience to a rule of construction recognized and applied everywhere this court has at all times and without a single dissenting voice read and construed these two sections of the Constitution together: State v. Port of Astoria, 79 Or. 1, 10 (154 Pac. 399); and when they are construed together the inevitable conclusion is that every municipality must have a charter and since cities and towns are the only municipalities which are granted the power to make their own charters it follows that a *246county cannot make its own charter. A county cannot enact a law unless the power to enact that law is referable to a grant of power made by the people of the whole state or by their representatives, the legislature. Nor does it necessarily follow that a county can initiate and enact a local, special and municipal law without a charter merely because it can exercise the referendum without a charter granting it the power of exercising the referendum. As pointed out in Rose v. Port of Portland, 82 Or. 541, 553-558, 570 (162 Pac. 498), the words found in the two sections of the Constitution, when read together, define the extent of the power of the referendum and define and limit the power of the initiative.

Article IV, Section 1, of the Constitution reserves to the people of the whole state the power to enact and refer measures. The people of the state at large can initiate and enact laws without any other charter than the Constitution itself. Article IV, Section 1, is self-executing and therefore an enabling act is not necessary: Stevens v. Benson, 50 Or. 269 (91 Pac. 577); Palmer v. Benson, 50 Or. 277 (91 Pac. 579); State v. Langworthy, 55 Or. 303, 309 (104 Pac. 424, 106 Pac. 336). Our attention has been directed to the following sentence found in Article IV, Section la:

' “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 suggestion is made that the language quoted from Section la reserves to the people of a county the power to exercise the initiative and referendum as to local, special and municipal legislation to the same extent as those powers are reserved to the people of *247the entire state as to state-wide legislation. In other words, the suggestion made by defendants involves the idea that there^re no more limitations upon the people of a county as to local, special and municipal legislation than there are upon the people of the whole state as to state-wide legislation and that therefore since no charter is needed by the people of the whole state no charter is needed by the people of a county. As stated in Rose v. Port of Portland, 82 Or. 541, 552 (162 Pac. 498):

“In the beginning, the whole sum of legislative power came from all the people and when they reclaimed the right to legislate they only returned to themselves what they had previously delegated to their representatives and hence no charter is needed to measure the right of the people to legislate, for it is a right which is unfettered except as the people themselves have limited it.”

The power of the people of the state at large is measured by Article IY, Section 1; but the power of the people of a county is measured by Article IY, Section la, and Article XI, Section 2, and these two sections when read together require a charter. Moreover, Article IY, Section 1, is self-executing, but Article IY, Section la, is not self-executing as to counties: Schubel v. Olcott, 60 Or. 503, 508 (120 Pac. 375); State v. Port of Astoria, 79 Or. 1, 13 (154 Pac. 399). The construction which this court unanimously placed upon Article IY, Section la, and Article XI, Section 2, in Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498), is the only construction that can harmonize the two sections and at the same time give effect to the language of both sections. The petition for a rehearing is denied. Affirmed. Rehearing Denied.

McBride, O. J., Burnett and Moore, JJ., concur.