Erickson ex rel. Erickson v. Sanborn

Oct 28, 1921
Reporters:
, ,
Before:
Bean
BEAN, J.

The one question involved, as to the validity of the charter amendment creating the civic center commission, referred to the electors by ordinance number 5616, is whether or not due compliance was had with the provisions of the ordinances then in force which provided a method of submitting charter amendments proposed by the common council to a vote of the people, and particularly where one ordinance provided that no such elections be held at a time less than sixty days from the passage of such ordinance of reference, and another ordinance passed at the same meeting designating a specific day which was less than 60 days, at which the proposed charter amendments adopted at the specified meetings of the common council should be voted upon by the people. From the facts above stated it will be observed that ordinance number 5616 creating the civic center commission, and referring the same to the people was adopted while ordinance number ‍​​​‌‌‌​​‌​​​​​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌‌​​​​‌‌​‌​‌​​​​​​‌‌​‌‌‌‌​‌​​​‌​‍4799, which provided a method of submitting charter amendments to a vote of the people, was still in full force and effect; that ordinance number 4799, provided by Section 3 thereof, that sixty days must elapse from the time an ordinance submitting a charter amendment is passed by the common council and the date of the election. Hence, it is noted that sixty days could not elapse between the passage of ordinance number 5616 and January 15, 1920, the date upon which the special election was held, and at which time the charter amendment creating a civic center commission was voted upon. However, it must be observed that at the meeting of the common council of the City of Astoria, held on December 15, 1919, ordinance number 5640, was adopted, which by Section 1 thereof specifically ordered that a special election be held in the *692City of Astoria, on Thursday, January 15, 1920, at which there be submitted to the electors of the City of Astoria, the proposed charter amendments as passed by ordinances of the common council at its meetings held on November 21, 1919, and December 15, 1919. It must be borne in mind that, at the same meeting of the common council held on December 15, 1919, at which ordinance number 5640 designating the date of the special election was adopted, another ordinance number 5641 was adopted, which by Section 11 thereof, repealed ordinance 4799, and reordained in general, the method of submitting proposed charter amendments by the common council to the people, particularly reordaining many of the provisions of ordinance number 4799, and which by Sections 4 and 5 thereof directed the posting of certain notices of election, and by Section 6 thereof directed the publication of notice of such election on specified dates in a designated newspaper. There is no question but what the notices of the special election so held were posted and ‍​​​‌‌‌​​‌​​​​​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌‌​​​​‌‌​‌​‌​​​​​​‌‌​‌‌‌‌​‌​​​‌​‍published in strict accordance with the provisions of ordinance number 5641. Section 3 thereof provided that no election upon a proposed charter amendment be held at a time less than sixty days from the passage of the ordinance submitting such amendment to the people. This section continued in force a similar provision of ordinance number 4799, which was effective when ordinance number 5616 proposing the charter amendment in question was adopted. Ordinance number 5640 by its provisions apparently disregarded the 60-day limitation contained in ordinance number 4799 and ordinance 5641, and specially ordained that an election be held on January 15, 1920, for the purpose of submitting the proposed charter *693amendment passed at the meeting held on November 21, 1919.

The complaint challenges the validity of the charter amendment creating the civic center commission solely on the ground of f¿ie conflict in the ordinances of the city, particularly for the reason that the election held was within the prohibited 60-day limitation.

1, 4. The construction of an ordinance is ascertaining the intention thereof, in accordance with well-settled legal rules. Primarily that intention is to be gathered from the language of the ordinance itself in the ordinary and popular sense. If the ordinance is free from ambiguity no exposition is permissible, contrary to its express words. But in case of doubt courts lean towards the presumed intention of the legislative body, and will so construe the ordinance as to effectuate such intention. A reasonably liberal construction should be invoked so as to give the effect to the ordinance intended, and that it may be sustained if this can be done in reason. Ordinances are construed by the same rules that govern the construction of statutes: 7 McQuillin, Municipal Corporations, p. 6983, §§810, 811; 25 R. C. L. 1062, § 286; Smith v. Kelly, 24 Or. 464 (33 Pac. 642); Duncan v. Dryer, 71 Or. 548 (143 Pac. 644). It is the rule that where two statutes, or ordinances, treat of the same subject, one ‍​​​‌‌‌​​‌​​​​​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌‌​​​​‌‌​‌​‌​​​​​​‌‌​‌‌‌‌​‌​​​‌​‍being special‘and the other general, unless they are irreconcilably inconsistent, the special act will prevail: 1 Lewis’ Sutherland Statutory Construction (2 ed.), 528, 529, and cases cited. Where ordinances are contemporaneously passed, a specific provision relating to a particular subject will govern in respect to that subject as against general provisions: 1 Lewis* Sutherland Statutory Construction (2 ed.), 531.

*6945, 6. Ordinance number 4799 of the City of Astoria was general in its provisions for the calling of a special election. This ordinance was practically amended by ordinance number 5641 which was also a general ordinance except as to its provisions relating to dates of publication of notice which have now passed. This provision of the latter ordinance was special in its nature. Although repeals by implication are not favored, when the common council of the City of Astoria on December 15, 1919, passed ordinance number 5640, with special provisions for the election to be held January 15, 1920, the general provision that no election be held at a time less than sixty days from the passage of an ordinance submitting an amendment to the people, was impliedly repealed in so far as it affected the special election to be held January 15, 1920. As we view the matter, ordinances number 4799 and number 5641 contain general rules for the guidance of the common council which that legislative body had the power to amend or suspend at any time by the adoption of another ordinance: State ex rel. v. Kelsey, 66 Or. 70 (133 Pac. 806). The specific provision as to the date of the special election contained in ordinance number 5640, was not impliedly repealed by ordinance number 5641 adopted at the same session of the common council. A general ordinance, without negative words will not repeal by implication from their repugnancy the provisions of a former special ordinance. Where two ordinances are contemporaneously passed, a specific provision relating to a particular subject ‍​​​‌‌‌​​‌​​​​​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌‌​​​​‌‌​‌​‌​​​​​​‌‌​‌‌‌‌​‌​​​‌​‍will govern in respect to that subject as against general provisions, unless a different intent of the lawmakers is manifest: 1 Lewis’ Sutherland on Statutory Con*695struction, 526-531. In 25 R. C. L., page 1062, Section 286, it is stated:

“The rule that statutes in pari materia should he construed together applies with peculiar force to statutes that are contemporaneous or nearly contemporaneous; for, in such case, we have the same minds acting upon the one subject, and it is not to be presumed that the same body of men would pass conflicting and incongruous acts. The presumption is that they had in mind the whole subject under consideration; that while the one general subject is touched in several separate acts, yet the legislative intent was that of a harmonious whole. Hence, statutes passed at or at nearly the same time should be construed together in determining their effect.”

7, 8. The city counsel of Astoria had the power in the first instance to prescribe the method employed in the exercise of the initiative to prescribe the method employed in the exercise of the initiative and referendum. It also had the power to change such method at any time. Therefore the city had the power wholly to disregard the sixty days’ provision and prescribe the place and notice to be given for a special election to be held on January 15, 1920: Article IY, § la, Constitution of Oregon; Colby v. City of Medford, 85 Or. 485, 512 (167 Pac. 487); State ex rel. v. Kelsey, 66 Or. 70 (133 Pac. 806). A narrow or technical rule of construing a statute regulating elections should not be adopted against electors acting in good faith within the letter of the statute or ordinance: State v. Wolf, 17 Or. 119 (20 Pac. 316).

It is portrayed in the complaint that the special election held in the City of Astoria, January 15, 1920, was regularly held according to the provisions of ordinances 5640 and 5641. When construed together *696the notice thereof was ‍​​​‌‌‌​​‌​​​​​​‌​‌​‌‌​‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌‌​​​​‌‌​‌​‌​​​​​​‌‌​‌‌‌‌​‌​​​‌​‍sufficient. A full fair expression of the legal voters of the city was had at the polls, and by the amendment to the city charter created a civic center commission. This election was the vitalizing force adopting the charter amendment, and should not be annulled by reason of any mere informality in calling the election. It is well known that ordinances, as well as statutes, are not always drawn with the precision to be desired; yet the legislative intent must be declared and enforced when possible in conformity to well established principles of interpretation, and without doing violence to the fundamental rights of any individual: O’Malley v. Sebastopol, 24 Cal. App. 32 (139 Pac. 1082).

We think the demurrer to the complaint should have been sustained. The judgment of the lower court will therefore be reversed, and the cause remanded with directions to sustain the demurrer to the complaint and for such further proceedings as may be necessary, not inconsistent with this opinion.

Reversed and Remanded.