98 P. 145 | Or. | 1908
Opinion by
This suit is brought by a citizen and taxpayer of the Port of Portland, to enjoin and restrain its board of commissioners from carrying into effect the provisions of an amendment to the act incorporating the port, proposed by the initiative and adopted by the voters, on
The Port of Portland is a municipal incorporation organized in pursuance of an act of the legislature passed in 1901, the constitutionality of which was upheld in Cook v. Port of Portland, 20 Or. 580 (27 Pac. 263: 13 L. R. A. 533). It is, however, neither a city nor a town in the strict, technical sense, and, therefore, it is contended that it does not come within the several provisions of the constitution reserving to the people local, self-government.
“Section 1. The legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall be required to propose any measure by such petition,*585 and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be: ‘Be it enacted by the people of the State of Oregon.’ . This' section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for Justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people, he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor.”
As this amendment did not extend the referendum powers therein provided to parts less than the whole of a legislative act, and as there was some doubt as to whether it applied to municipal legislation, an additional amendment to Article IV was adopted in June, 1906, by inserting after Section 1 and before Section 2 the following:
*586 “Section la. The referendum may be demanded by the people against one or more items, sections, or parts of any act of the legislative assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections, or parts of an act shall not delay the remainder of that act from becoming operative. 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. Not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure, by the initiative, in any city or town.”
At the same election an amendment to Section 2 of Article XI was also adopted prohibiting the creation by the legislative assembly of municipal corporations by special laws, which reads as follows:
“Sec. 2. Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the State of Oregon.”
The contention of plaintiff is that the power of the people of a municipality to amend its charter or act of ■incorporation is to be found alone in Section 2, Article XI, and since the last clause of that section grants such power to cities and towns only, it—by implication— excludes municipalities like the Port of Portland. But this section and the language used in it should not be construed alone. It is a part of the general initiative and referendum scheme first inaugurated by the amend
It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.