*1 January 23, 2002 12, 2000, May Argued affirmed and submitted INCORPORATED, GTE NORTHWEST Washington corporation, Appellant, COMMISSION, UTILITY OREGON PUBLIC Smith, H. Hamilton, Ron Eachus and Joan Roger Commissioners; the State of subdivision of County, political Lincoln Oregon; Alliance, Development and Economic Oregon non-profit corporation, Respondents.

98C-19114; A106560 39 P3d 201 argued appellant. James M. Brown the cause for With him on the briefs was Enfield Brown & Collins Knivila. Jeffrey argued respondent

Jas. Adams the cause for *2 Utility Public Commission. With him on the brief Hardy Myers, Attorney were General, and Michael D. Reynolds, Solicitor General. County argued Bovett,

Rob Counsel, Assistant the cause respondent County. and filed the brief for Lincoln appearance respondent Development No Economic Alliance. Presiding Judge, Armstrong Edmonds,

Before Judges. Kistler,

EDMONDS, P. J.

Armstrong, concurring. J.,

EDMONDS, P. J. brought Plaintiff GTE this action circuit court sought pursuant Plaintiff to have the court to ORS 756.580. by Oregon findings set aside and conclusions of law made (PUC). Utility The trial court held for Public Commission plaintiff appeals. defendants, and We affirm. Development

The Economic Alliance of Lincoln (Alliance) County County separate applica- and Lincoln filed provide telecommunication services. tions applications consideration The PUC. were consolidated for sought approval pro- applications The final amended interexchange Douglas Lincoln, Lane and vide service According applications, applicants sought to to the Counties. service that will use a be resellers of a data communication system. system optic The network will utilize fiber network equipment optic contributed Alliance fiber strands transport County and Lincoln and will the means protest applications. Plaintiff filed a to the communications. granted applications, designating Lincoln PUC provider Lincoln, service in Lane and as a ofthe transmission *3 Douglas Counties. assignments appeal, plaintiff oferror.

On makes two County engage argues lacks First, it that Lincoln competitive with other telecommuni- economic activities County. providers within Lincoln Alterna- cation service pro- tively, argues that Lincoln lacks beyond competitive its telecommunication services vide county response, geographical The relies on boundaries. pertinent authority, provides, in which ORS 203.035 for part:

“(1) (3) section, gov- of this the Subject to subsection county may by ordinance erning body or the electors of a county county the over matters of exercise within and concern, allowed Constitutions to the fullest extent state, if each fully as as laws of the United States of this general authority in that were power comprised particular in ORS 203.030 to 203.075. specifically listed “(2) is in addition to power granted by The this section counties, shall not be construed grants other qualify any grant liberally con- limit or shall powers strued, to the end that counties have all over mat- county possible is for them ters of concernthat it to have under the Constitutions and laws ofthe United ofthis state.” States interpreting legisla-

When a statute to discern the intent, ture’s we first examine the text and context of the (1) govern- statute. Subsection of the statute authorizes the ing body county to “exercise within the county county over matters concern” to the fullest extent provides allowed law. Subsection that “counties have powers county possible all over matters of concern it is party points them have” under the Neither us law. to a statutory provision expressly or constitutional restricts county’s purported authority as a telecommunication provider. plaintiff argues competitive However, service activity by county private gen- economic with the is sector erally beyond authority historically granted by legis- county lature to counties. The counters Oregon Legislature granted “statutory home rule” powers. grant authority, Under that has acted development County by to enhance economic within Lincoln developing agree a communications network. We that the in ORS and, face, 203.035 broad on its only by phrase limited “matters of concern.” How- ever, it is not evident the text or context what activities legislature contemplated would constitute “matters of legislative history concern.” turn We more guidance. scope

ORS was 203.035 enacted and the language, especially phrase “matters of con essentially cern,” has remained the same since that date. Or § Laws ch 282, 2.1 Bill House ulti mately proposed by became 203.035, ORS was House Local Government and Urban Affairs Committee and Oregon perceived Association accord need, Counties. ing *4 to Steve Orrick of the Counties, Association of fundamentally scope county’s authority was to alter the of a 1981, 756, 140, 1; 1985, 1; 1995, Or See also Laws ch Laws ch § § Or Or Laws 712, ch § 87. Tape recording, Committee on Local Govern to act. ment and Urban House Tape 14, Affairs, 26, 1973, HB March (statement Orrick). explained that, under of Steve He Side then-existing presumed law, unable to a was to be given specific, unless find a enumer take action it could statutory power framework that ated somewhere the specific power. lim Otherwise, counties were the bestowed specifically powers that the to the exercise of delineated ited legislature statute. Id. conferred opinions of the time, At there numerous were strictly Attorney cases, General, that had and several older authority. e.g., county’s See, v. Powell Grove Cem. construed (1961); Co., 228 Or P2d 1058 Fales Multnomah County al, 127, 133, et 248 P 151 Multnomah overwhelming had resulted in an number Such framework during requests specific legislative each ses counties of sion for legislature grant powers that new, enumerated Tape specific allow a act in situations. would recording, Local Government and House Committee on Tape 26, 1973, 14, Side 2. Affairs, SB March Urban purpose was to Orrick testified the bill pre- quo or, words, “reverse” the status other reverse grant sumption of lack of and to counties express legislative approval. seeking to act without change place legislature proposed the onus on the would county’s authority by specific legislation. circumscribe the gave examples. explained that, He in most Id. Orrick two pressing transportation counties, serv- there need was willing elderly private entities were not ices for to but explained then-existing He under service. statutes, not enumerated counties did have an transportation they services, so to offer could adopted, perform bill, He if that function. stated that give transportation because would elderly clearly a concern. He also was matter of impose explained a hotel/ that the bill would allow counties legislature’s they desired, tax if which did not motel explained statutory specific He that the authorization to do. powers, prospective to be confer bill was intended legislature fact, if it limit after the could then concern. Id. make a matter one of statewide wished to

51 legislator expressed Another the concern that the legislature might prefer to have counties come to it and ask specific authority granting instance, for blanket in each rather than acknowledged

authority. legislature Orrick that the ability county’s still retain the limit would power exercise proposed presumption under the bill but that the county’s power be in in would favor exercise of its the legislative absence of action. Orrick then discussed the inter- counties, action home counties, between rule chartered proposed by saying the Id. statute.2 He concluded bill attempt powers was not a new to enumerate at all but was sweeping; intended powers be broad and no one would know what specific had been conferred under the bill until a chal- lenge county’s power to a exercise of was tested in court. Id. While there was extensive additional discussion about county ability produce whether a should to tax and legislative approval, general revenue without terms regarding adopted HB 3009 “matters concern”were without much additional comment. SB 3009 in was enacted substantially 1973 the same form in was proposed. County, Washington App Allison v. 24 Or P2d 548 188 we addressed the issue of the 1973

Legislature’s enacting intentions ORS 203.035. We said: (which Oregon

“ORS 203.035 became law via Laws ch 282) obliterates most the powers distinctions between general law counties home rule counties. Home rule counties their legislative power VI, derive from Art. s[ection] 10 of the Constitution and from their indi- VI, vidual grants s[ection] charters. Art. home rule coun- ties ‘over matters of concern.’ General law legislative power derive from specific statu- tory grants general [statutory] grant the broad ORS 203.035 of ‘over matters of concern.’ explained proposed legislation Orrick would differ from encompasses powers: ability people charter ganize a charter because two to let reor government ability their local and the to enact ordinances. He stated that only proposed legislation power ability would affect the second to enact —the explained legislature ordinances. He that it differed from home rule because powerless change charter, county’s legisla a home rule but under the new tion, legislature power through legisla would have the the counties control people county. tion that would override the decisions made a home rule convey exactly that grants to counties

General therein, pre except that which is broad articulated Masters, 421, 429, App empted state law. Schmidt (1972). Therefore, (1971), [rev in the den] 490 P2d 1029 provision, preemption limiting or a charter absence of state general legisla have the same home rule and law counties (footnote Allison, App at authority.” tive Or omitted). understanding, articulated the test that on that we Based analysis in said that the distinction this case. We informs proposed drawn under ORS 203.035 was whether to be predomi- predominantly “is a matter of statewide action nantly App Allison, 24 at 584. local concern.” *6 opinion Allison, the 1981

After we our issued Legislative Assembly repealed Oregon a host of statutes that variety things, gave specific ado of counties including hall and revoke dance provide employment licenses, paupers, maintenance and for the public cemeteries, and maintain roads build employ- county grant paid leave to vacation and sick (repealing e.g., § ch 3 ORS See, Or Laws ees. 203.125, ORS 203.123, 203.124, ORS 203.122, ORS ORS 203.140). superflu- had become Those statutes 203.130, ORS legisla- plenary granted 203.035 ous because ORS county powers well as other “matters of in those areas as tive concern.”3 history questions mind, we turn to With that County

presented question Lincoln first is whether here. The operate its service within own a telecommunication can provision turns on whether the boundaries. The answer county predominantly is services telecommunication e.g., Boytano See, local, instead, state concern. matter of App P2d 321 Or Fritz, 466, 477, Or 886 31 131 aff'd (1995) (employing “predominant charac P2d 488, 901 test).4 county’s case, As the record this ter” shown Etter, Majority, County L Home Rule in Reaches See also Orval 3, 13-16(1982). Rev analysis statutory basis on the reason The concurrence criticizes our case, PERB, 576 P2d 1204 ing Da /Astoria v. in Grande declaratory judgment proceedings challenging the brought constitution the cities system provide ality requiring state retirement counties to of state statutes development county interest in the economic and the provision surrounding region and in the of services that are commonplace in access, other areas of the state —internet high speed telephone county connections, and internal com county schools, munication between the libraries other availability offices. While the broad communication serv concern, ices is a state as evidenced state’s own enact regarding provision see, services, ment statutes of such e.g., chapter 759, ORS the concern about telecommunication County specific service residents of Lincoln ais more con perceive cern ofthe than ofthe state. Moreover, we no prohibitions contemplated legisla in ORS 203.035 as prohibit competing ture that would service private with the sector. We conclude under ORS County 203.035, Lincoln is authorized to telecom munication services residents, to its own even if that means county competing plaintiff. that the with

We turn issue, second which is whether lawfully operate Lincoln can its telecommunication Again, service outside boundaries. we are not aware of statutory prohibition county’s on exercise of its legislative history underlying outside its boundaries. explains that, ORS 203.035 in the absence of such a con- regarding straint, the has the to act “mat- argues ters of concern.” Plaintiff that such a broad interpretation VI, ORS 203.035 would conflict with Article upon county] [the section 10.5It asserts, “The statute *7 membership city police policies police for and fireman and life insurance clear, types firemen. As La Grande / Astoria makes there are four of situations (1) municipal be encountered in that area law: of the in the enactments (2) (3) law, municipal law, absence of state enactments in conflict with state state enactments, municipal laws in absence of the state laws that conflict with municipal at presenting enactments. Or 141-42. La Grande /Astoria is a case type the third or fourth of situation. The test for those situations is “whether the challenged primarily law is addressed to a the concern state with modes of government social, regulatory objectives.” or local to substantive or economic other at 149. Astoria, attempt the / Unlike statutes La Grande there is no here statewide VI, 10, Oregon to constrain the counties’ under Article of section the Con- valid, inquiry county’s pres- stitution. The whether enactment is is the own question Thus, category. ents a the or under first second the test used such an inquiry by prompted is unaffected the the deci- constitutional considerations sion / LaGrande Astoria. VI, 10, provides, part: Article section county] only. [The relies, 203.035, cannot ORS is a statute changed. The enact- that the Constitution has claim the fundamental nature of a cannot alter ment of statute Oregon’s proposition that, within It relies on the counties.” implied VI, constitutional limi- section there are Article “county of that will deemed be tations on the matters be perceive nothing language However, in the or in we concern.” previous interpretations VI, of Article section the county’s ability to exercise its would limit the beyond any plaintiff boundaries, its does not refer us language previously Rather, of constraints. the articulated language VI, of section tracks the Article ORS 203.035 pro- if the cannot said to ultra vires and such services be services outside the territorial vision of telecommunication county county a matter of concern. boundaries of the is understanding gov Generally, of when a local lawfully entity can act outside its territorial ernmental ex rel v. in the case law. State boundaries well-settled Supreme 332, 124 P Tillamook, 62 Or Port of municipal port Tillamook had no held Court geographical expand its own boundaries out were not able to into area of land where residents ward port. It on their annexation into the said: vote “[sjuch upon matters municipal to act local right adjoining regard exercised with due should be plan of localities, harmony general and in with the home corporation permitted If to extend its municipal rule. boundaries, sanction by step, indefinitely, without the step included in the people or the of the districts of the State extensions, very plan subversive of the as would be through sovereign power expressed by people in their by whereby legal Assembly provide Legislative law a method shall “The voting any county, by majority thereon at vote of such voters voters election, amend, repeal county legally may adopt, charter. A revise or called by county may provide over mat- county exercise charter * ** prescribe organization A shall charter ters concern. authority, directly, county government for the or and shall tenure, powers number, compensation, appointment, qualifications, election or * * * necessary. The initiative deems such officers as the and duties of hereby powers people are this Constitution reserved and referendum every county adoption, legal to the relative further amendment, to the voters reserved legislation passed repeal and to of a charter revision adopted charter[.]” counties which have

55 ballot, con- and not reasonable exercise of the Tillamook, ferred.” Port 62 Or at 342. court, Pass,

Then the Churchill Grants 283, 141 P municipality examined whether a had the power under the Constitution to and construct a steam railroad within operate and without the boundaries city. court first determined that the nature of corporations municipal relationship to state ** * they agencies” are “mere may state “control Churchill, even to extent of amending charters.” Or at 288. The court then said: sovereignty may

“That certain attributes of the state delegated be necessarily to such corporations must be true. * * * is nothing There in our prohibits constitution which building railroad; fact, state from and owning a such road built owned the state has in operation been at on Celilo the Columbia for many years. River What may state of do in this respect, may lawfully delegate any municipal corporations; only and the question is proposed legislation whether the public is for a purpose.” Id.

The court concluded that construction of the railroad was a public purpose the rule “would seem to cover all cases of railroad construction municipalities, whether wholly within the not, boundaries of such municipality or if of such purpose improvement welfare, is for the general convenience, health or comfort its citizens.” at Id. 288-89. Astoria, State v. Port P 1, 17-20, 154 (1916), the court first adopted the nomenclature of “intra mural” stated, and “extramural” It power.

“Powers exercisable placed cities and towns which, separate classes, brevity two for the sake of (1) terms, designated want of better bewill as: Intra- mural; and extramural. legal city When the voters of a municipal legislation enact operates only on them- themselves, selves and for extends no further and which confined within and corporate limits,

than then vot- ers are exercising authority. When, however, intramural legal city the beyond attempt voters of to exercise corporate municipality, they limits of their are using power. extramural

‡ }]c Hi # obliged of cities and towns are not legal “The voters right to exercise *9 intra- legislature look to the for the intramural the whole sum of power; mural but may all of that legal the voters exercise large, set at and desire, they may subject, only part of it as or state, course, criminal laws of the the Constitution and of to common- subject right people also of the and to the legislation supervisory to or enact wealth amend charters Portland, 77 Or by use of the initiative: Robertson v. the (1915)]. authority, however, is 121[, Extramural 149 P 545 towns, unless legal not to the voters cities available granted by a exercise it has first been either right the legislation ini- by by the general legislature law enacted right employ of whole by people tiated the the state. the language finds its source the intramural Constitution, legal the voters of cities and towns because expressly empowered to enact and are that instrument charters; permission employ extra- amend their own but granted to cities and towns before mural the must be the power One coexists with privilege can be exercised. all, Constitution, power not exist at while the other does either the author- people the of the whole state unless ity privilege the by the initiative or extend themselves ** * Prece- legislature. through representative, rule that extramural firmly have established the dents law by cities and towns unless a power employed cannot be it, have prior adjudications and some permitting exists further, general that a law step advanced a held permitting of extra- legislature enacted mural the exercise ingraft power power its own force does city, general upon the but the law charter a offer of a which nevertheless likened a continuous city legal have cannot be used until accepted voters of by amending so as the offer their charter Astoria, at power.” Port 79 Or 17-20 proffered include the (citations omitted). al., City et al. Portland et 121 Or Richards In outside (1927), P who lived plaintiffs, water providing continue Portland, city to force sought The court area outside the city. to their residential service authority to city whether had analysis undertook an it did not. It then and concluded that public utility a become city lawfully could not because reasoned public utility provider, compelled it become could not be provide the water services. Later cases have been careful to distinguish involving municipal from Richards other cases ity’s authority, clarifying holding that Richard’s was not that city was not authorized to water outside its compelled boundaries but instead could not be to do so. e.g., City See, McMinnville, Yamhill Elec. Co.v. 339-40, 274 P 118 cert den 280 US 531 ques- Co., Yamhill Elec. the court evaluated the city enjoined tion of whether the of McMinnville could be extending city power provide power golf lines to to a city. course several miles outside the The court took care to distinguish constitutionally permissible policy part city between on decisions of a delegated

exercises ofits author- ity. The court said:

“Consequently, while there is no constitutional inhibition against building railroad, state and operating say, *10 Ashland, from Portland to enterprise such an would find * ** small favor[.] What the regard, state can do this we see no objection authorizing constitutional to its its munic- ipal corporations, agencies state, which are mere also indo such cases as it shall proper.” deem Id. at 324. It continued: by that,

“It is further plaintiff contended conceding even municipalities that are operate authorized to plants production and of energy sale electrical outside as well as boundaries, inside their municipal they have no energy to deliver such limits; corporate outside their they convey such energy only boundary to the agencies deliver it there into furnished the consumer and not otherwise. The consumer bring must his “bucket’ it city boundary.” filled at the Id. at 333. argument by looking The court then addressed that to the city’s finding language charter, and, terms own delivery electricity city allowed the “vicinity,” and sale of to the and its city’s authority

the court concluded that power authorized the line extensions. Id. at 337. City Co., Salem v. O.-W.Water Serv. (1933), city pro-

23 P2d 539 the issue was whether the could living city vide water service to residents outside of the city’s charter The court concluded boundaries. city’s system city from the water to sell water authorized city incorporated limits of or without the such “within * * * to the sale and and to make contracts reference town * * * corporate disposal for use within or without ofwater municipal The first at the limits.” Id. at 117. court looked clearly purported to bestow “extramural” charter, which city, and then looked to the statutes on the provisions. court such charter The said authorized [authorizing charters] of these statutes such validity “the They amend munici- has affirmed. do themselves been charters, merely constitute offer the state pal but desires to avail itself of these extra- municipality which ** * powers. foregoing It is evident mural city upon confer 90 the did not the enactment section so, merely it do power, itself extramural could not but to in offer submitted the above accepted the Salem, City 144 Or at 117-18 two sections of our laws.” omitted). (citations Legislature presume was that the 1973 aware We when it enacted the broad those decisions From those decisions comes an ORS 203.035. contained understanding municipality’s exercise of its that a depends not on territorial boundaries its boundaries outside activity. under- of the extramural That but on the nature standing instance, For in DeFazio v. exists in other contexts. P2d the issue was WPPSS, respective had the under their cities whether agreements for the constitution to enter into charters power plants. operation of nuclear and the construction court said: *11 by opponents made arguments

“One of the by agreements is that the involve the circuit court accepted power for which cities municipal of an ‘extramural’ exercise their own the state as well as from need generation They of an earlier charters. cite cases terms, although the decisions general this rule in recited See, e.g., particular activity issue. rarely invalidated 93, P2d Co., 144 23 City v. O.-W. Water Serv. Salem (sale city city water outside the authorized McMinnville, charter); City v. Yamhill Elec. Co. law and (1929) (same P supra, 130 Or for sale of electricity)[.]

«‡ * * * *

“A generalization city broad that a has ‘power’ no or beyond ‘authority’ its borders does little to explain what an ‘power’ ‘authority.’ constitutes exercise of or It does not explain, instance, why city’s for these to a apply terms sales goods or services pur- outside borders more than to its always chases. Nor is it clear whose interests the rule is meant protect, of the citizens who have authorized city’s surrounding action governmental or Possibly opinions entities and their early inhabitants. reflect concern competitive about encroachments munic- ipal enterprises private or business more than legal analy- See, e.g., Co., supra. sis. Yamhill Perhaps Elec. also the facilities, installation of permanent city even if accom- ordinary plished by transactions, ‘proprietary’ may some- times represent presence an of the city’s beyond extension its borders that should be authorized the state rather See, only city’s than e.g., Riggs own citizens. v. Grants Pass, 134 P Primarily, however, concept power,’ walls,’ of ‘extramural power ‘outside city relevant when a undertakes to assert coercive persons or property over outside its boundaries. It has little relevance to a city’s contracts or other consensual transac- in goods services, tions eminent although an exercise of limits, city instance, domain outside would be exer- DeFazio, power.” cise (emphasis extramural 296 Or at 582-83 added). We have also followed the distinction between coercive authority and consensual transactions in later cases. In City Eugene Nalven, 720, 955 152 Or App P2d rev den suit, 327 Or 431 the city brought asking the court to compel a owner property city who lived outside the to con city’s nect to the sanitary sewer system. city had a char ter provision allowing it to compel sewer connections noncity very circumstances, residents under limited but relied instead on city a new ordinance purported authorize city any structures within compel located 160 feet city’s jurisdiction city’s to connect sewer. We said:

60 city may authority only within its generally

“A exercise general to corporate exception limits. The sole that rule authority outside its boundaries city that a exercise it draws act—a jurisdiction when a its Thus, grants authority. it that county or the state — city levy special district example, a cannot a assessment limits, city unless a that includes land outside the statute authority to do city confers on so. general qualified rule been exception

“That has grant of extramural a requirement further expressed.’ Supreme As authority ‘clearly Court al, explained City et al Portland et Richards v. of (1927): 340, 345, P255 326 “ acting elementary municipality, that a either ‘It is only do proprietary capacity, or can so governmental its upon conferred express implied of virtue Ordinarily, jurisdiction municipality a ceases of it. at boundaries and for it to exercise extraterritorial its clearly so must be jurisdiction powers its to do (cita- Eugene, Or at City App 724-25 expressed.’ of omitted). tions “We concluded:

“* * * city’s ulti- arguments supports its [n]one 0f statutory authority merely it has mate conclusion that property located outside of declare ordinance sewage disposal must connect to its municipal boundaries grants it of which it relies system. None the statutes on least, very At the those authority. such extraterritorial more than one construc- reasonably capable are of statutes satisfy ‘clearly expressed’ grant extra- tion and do Richards, 121 at Or requires. mural law (citations omitted). at 731 345.”Id. P2d App Finally, Logsdon, State addressed again this court rev den 330 Or extramural exer- the intramural the interaction between The authority. Josephine voters of municipality’s cises charter an amendment County had enacted law enforcement effect, for state and made unlawful in Josephine and seizures searches perform officials consent of the owner. order or County without court had whether the voters we addressed was question first We they enact concluded that provision. discussion, did In our we not. said: pertinent provision grant “The the constitutional authority permits county charters to for the exer- cise over ‘matters of concern.’ Neither implementing nor constitution statutes define the term, however. We have noted that the VI, city counties in Article an adaptation section *13 that, rule provisions consequence, home ity and in ‘the author- of a under a home be as as may rule charter broad 421, city.’ Masters, 428, that of a 7 Or 490 App Schmidt v. (1971), P2d 1029 rev den “Although perimeters city home rule authority delineation, may defy easy qualifications certain authority may that be stated with some confidence. particular, government it well is established whatever else local may entail, gov it does not include erning See, the conduct of e.g., state and federal officials. County $5,650 285, Multnomah v. Currency, in 309 Or U.S. (1990) (‘The 289, 786 P2d 729 fact that acts under a home rule charter does not mean that call upon it can state courts to enforce ordinances or otherwise to exercise jurisdiction wishes.’); in any case that al., La Municipal 109, 114-15, Grande v. Court et 120 Or (1926) (cities P jurisdiction 251 308 cannot alter or function courts); Portland, 454, of state 463, Kiernan 111 (1910), P 151, error S dismissed 223 US 32 Ct (home L Ed rule regulate entities not other governmental units); City Lines v. of Milwaukie, App 15 Or (1974) (home 515 P2d 938 city rev den rule does not jurisdiction to alter the of state courts). case,

“In this Josephine section County 29.4 the Char- ter, by terms, purports its to govern the conduct of any ‘pub- official,’ lic whether or appointed, ‘any agent elected Indeed, government.’ that declares no one—no ‘indi- vidual, federal, group, governmental or or body state local agency’ may contrary enforce law that is to section — No county 29.4. goes has the to do that. Section 29.4 beyond any legitimately may

well matter that regarded ‘county as a concern.’It follows that section 29.4 is invalid and that the trial court not err in concluding did so and, basis, in denying sup- on that defendant’s motion to press.” Logsdon, App at 32-33. summarize, is circum county’s authority

To From the the constitution and ORS 203.035. scribed clear, that comes a express grant statute that peculiar a demonstration of a concern requires only county’s Here, residents. the record demonstrates county’s concern is to a telecommunication serv communications by facilitating ice that benefits its residents the coast. Its residents have interests outside along boundaries, unlike the interests territorial county’s Richards, Co., Churchill, Elec. City in Yamhill involved Salem, Also, and DeFazio. its residents have interest and the attraction of new businesses generated jobs of enhanced telecommunication services may occur because County As Lincoln does not along importantly, coast. counties to Douglas seek to the residents of Lane and compel use its telecommunication lines the exercise of authority. that Lincoln within its acting

We conclude statutory using the telecom- constitutional voluntary telecommunication munication network to offer counties and it is irrel- legally Lane and Douglas services It fol- may compete plaintiff. evant that those services with the PUC ruling the trial court did not err lows *14 of to authority permit was authorized to issue the certificates the Alliance those services. County provide Lincoln to Affirmed.

ARMSTRONG, J., concurring. affirm the majority’s

I the decision to agree with (PUC) order that authorized Utility Commission Public telecommunication competitive Lincoln to provide however, I the that the reasoning with disagree, services. The of decision. effect its decision majority uses to reach that the understanding legislative of to resurrect rejected that the Court governments Supreme of local that. doing The errs in majority 1978. concludes that ORS majority implicitly

The county the relies for 203.035,1 the statute on which 1 provides, as relevant: ORS 203.035 services, competitive to telecommunication the on ambiguous, majority legislative because relies See to statute. Or

history meaning determine the of the at not to use legislative 49-53. We are App supposed history concluding statute without first interpreting Bureau PGE v. Labor and statute is ambiguous. that of Industries, 606, 610-11, 859 P2d order that a statute is we at ambiguous, identify conclude must it, plausible interpretations least two of based on stat The majority ute’s text context. does not two identify plau interpretations 203.035, question sible of ORS so I whether it look should to the the statute legislative history of to inter it. pret

Assuming that legislative history of ORS statute, 203.035 bears on the interpretation of the the major ity misinterprets history. history that The establishes legislature sought give rely counties that on statutes legislative authority the same authority leg to enact islation counties under rule charters can operating home 2Consistently have. with that goal, legislature wrote ORS 203.035 to give statutory counties the broadest possible authority to enact legislation on matter of con county cern, so that it would not be for them to return to necessary “(1) Subject section, body governing to subsection ofthis or the elec- county may by

tors ordinance exercise within the over county concern, matters laws the fullest extent allowed Constitutions state, fully particular of the power United States and of this as if as each comprised general specifically in that were listed in ORS 203.030 203.075. “(2) granted grants The this section is in addition to other counties, powers qualify any shall be construed to limit or construed, liberally powers shall the end that have all over mat- possible ters concern it is for them to have under the Constitu- and laws of tions the United States and of this state.” VI, gives Article section Constitution counties the relevant, adopt provides, home rule charters. It as Assembly provide by “Legislative whereby legal law shall a method voters any county, by majority voting any legally vote of such voters thereon at election, amend, adopt, repeal called charter county revise or charter. A may provide county authority exercise over matters * * * powers concern. initiative and referendum reserved to *15 hereby people every legal this Constitution are further to the voters reserved amendment, adoption, repeal relative to of a revision or legislation passed by adopted charter and to which have counties * * a charter specific authority legislate par legislature on to seek subject. ticular legislature adopted the

At the time statute that Oregon Supreme interpreted 1973, in had con Court provisions allocating home law stitutional on local rule as making power governments. the state and local See between Heinig al, 473, 479-85, 373 v. et State ex rel Milwaukie 231 Or interpretation, that local home rule P2d 680 governments Under lawmaking authority

were understood subjects on that a matter concern than of were more of local Legislators spoke predictably id. state concern. See at 479-88. discussing interpretation that when the intended terms of legislation 203.035, that which was effect of the became ORS statutory authority give legislative same as counties the rule counties. home years 203.035,

Five after the enactment of ORS Supreme PERB, 137, /Astoria Court LaGrande rehearing 586 P2d 576 P2d adhered to on (1978), dramatically interpretation altered of local authority. interpre new, current, home rule Under authority, provisions are of that the constitutional tation authority policy-making to allocate substantive understood governments. that the state and local That means between lawmaking authority governments of local rule home subject legislation depend on whether the ofthe local does not than concern. Id. at a matter of concern of state more local turn, that rule charters can means, 145-57. That home considerably give governments broader local previously legislation believed, enact than because subjects is not that are more matter of limited local than state concern. rejects change essentially majority in the statutory operate applicable

law as rather as counties legislature view, In its than home rule counties. as give statutory legisla- intended ORS 203.035 to counties tive rule counties were understood home rather than the it enacted the statute have when actually gives home that the Constitution operating statutory Consequently, rule counties. legislative that is 203.035 not have under ORS do *16 authority the coextensive with counties. that is available to home rule legislature I do not believe that that is what the give statutory adopted It intended. legislative authority ORS 203.035 to counties equivalent that is to that available to VI, home rule counties under Article section Constitution. The text of the statute does that. The statute interpreted narrowly codify interpreta- should not be to applied tion to available to home VI, rule counties under Article section 10. That means contrary statutory majority’s legislative authority view, to the County

counties such Lincoln as should be evalu- according interpretation ated to the current sec- VI, ofArticle county’s authority tion 10, which means that the does not depend provision on whether of telecommunication serv- County important county ices in Lincoln is more to the than Compare App the state. at 52-53. difficulty rejecting arguments

I have little GTE’s give that ORS 203.035 does not Lincoln provide competitive to telecommunication services. Accord- ing give GTE, to ORS 203.035 does not counties to provide services other than those that counties have histori- cally provided. historically provided view, In its the services “appraisal, collection, counties consist tax law enforce- ment, courthouses, and records roads.” If counties to want provide they get specific authority services, other have to legislature summary, although from to do so. counties adequacy be concerned about the of services such as electricity, water, sewer, provided and are telecommunications that give to their ORS residents, 203.035 does not them by providing to address that concern those services. argument If correct, GTE’s were then it would mean

(1) distinguishes implicitly that ORS 203.035 between the power regulate power of comities to activities and their to provide grants very services or that the statute power. little The issue of domestic water service help point. can residents illustrate the gives powers “all ORS 203.035 over matters comities possible concern that it for them to have.” ORS 203.035(2). quality appear It would the cost provided water residents would be a mat- domestic quality are ter to counties. If water mat- of concern cost “county 203.035, term in ORS concern,” ters of as that is used presumably power enact have the ordi- then counties nances to service or to regulate companies provide domestic water

give companies tax to enable incentives them systems. According improve GTE, however, their water historically provided counties residents, provide have not water service their give

so ORS 203.035 does them follows, therefore, there that service. It must be power implicit distinction ORS 203.035 between regulate counties to matters of concern regarding services those matters. *17 Conversely, distinguish if the statute does not provide power regulate power to serv- between the to ices, then domestic water service cannot be matter of inability provide county concern, to because the of counties inability imply water services would a concomitant domestic regulate companies provide to that do those services. That have mean that matters of concern would to be would narrowly only that to cover those matters come construed range undertaken within the historic activities counties. reject legislature propositions.

I both enacted give that not enacted 203.035 to counties have home ORS ability powers over rule charters the county to exercise all matters with rule charters can concern that counties home doing unnecessary By legislature that, made exercise. authority legislature specific seek to for counties to from they Although that have.3 there are address concerns gives on which 203.035 limits to concerns ORS I that act, to have no doubt economic counties Etter, Majority, See, e.g., Oregon Home Rule in Reaches 61 Or L Oregon Orval (1982). ultimately 3, 13-16 203.035 led the 1981 Rev The enactment of ORS specific authority repeal gave Legislature counties to a whole host of statutes variety things, including and revoke dance hall to licenses, do employment paupers, provide to build and for the maintenance cemeteries, public grant paid and to vacation and sick leave to roads to maintain county employees. 203.130, 203.125, ORS ORS 203.140 See ORS 203.120 to ORS availability development high-speed and the and cost of tele- services are concern under communication matters the statute. development

Because economic and telecommuni- county concern, cation services are matters counties that subject County, are ORS all 203.035, such as Lincoln power address those matters counties can Contrary power view, have. GTE’s includes provide competition telecommunication services with private provide businesses that the same services. Earlier history, private companies provide our built toll roads to people nothing pre- state,4 means to move around the doing economically vents them that now. It competition feasible them to do that in with state and governments, principle local but there is no that makes road governmental private activity. construction a rather than a Similarly, principle provision there is no that makes the private govern- telecommunication services rather than a activity. reject mental I therefore GTE’s contention that provide counties lack under ORS 203.035 to competition private telecommunication services with compames.5 argues gives

GTE also if ORS 203.035 the that its ties services, telecommunication then beyond county does not extend boundaries. view, it cannot a be concern of counties to activi- conduct beyond reject proposition their borders. I as well. *18 203.035(1), county may

Under ORS a “exercise county county within the over matters con- cern[.]” language impose geographic The effect of that is to a governmental power by restriction on exercise of coercive example, means, counties. That that counties cannot use granted by impose them ORS 203.035 to taxes (act See, e.g., p Or Laws to aid River Road Co. to Trask to enable it complete County Valley). a toll from road Tillamook to the Willamette authority granted subject to and fed counties ORS 203.035 is to state preempt any eral law. See ORS 203.035. That that and means state federal law con flicting county pursuant argued ordinances enacted GTE not to ORS 203.035. has County’s provide that Lincoln decision to telecommunication services conflicts with law, any or and I am not such state federal aware of conflict. regulate property to or

on located outside boundaries outside their boundaries. activities occur however, mean, That not that counties are does using authority granted them ORS restricted beyond engage If their boundaries. activities 203.035 imposed restriction, mean such a then would statute employees could not send its outside the training purchase get purchase supplies, it not or to could people advertising appeal its scenic to tout economic or to county county, go and it could not outside outside impose employees. recruit restriction. Counties The statute does authority granted can use the them beyond engage their boundaries ORS 203.035 to in activities are of matter of concern and if the activities involve a might type anyone engage, purchas such as in which else ing goods purchasing selling property, services, etc. and WPPSS, 550, 582-83, 679 P2d 1316 DeFazio v. Cf. (discussion authority in context of of extramural rule). municipal home case are of the latter

The activities at issue this (Central Lincoln) operates type. Lincoln PUD Central Douglas Lane, Counties. The telecommunica- Lincoln, County partners and its tion that Lincoln services using area Central in Central Lincoln’s service are furnished already I have con- telecommunication network. Lincoln’s 203.035 has under ORS cluded that the operate operation network, of the network engage. something anyone I could chosen acting County Lincoln within conclude, therefore, Lincoln’s tele- to use Central under ORS 203.035 provide competitive telecommu- communication network Douglas It Lincoln, Lane, counties. services in nication issuing not err in certificates that the PUC did follows pro- permit partners to Lincoln and its majority’s deci- in the I therefore concur vide those services. granted uphold those certificates. PUC order that sion to