190 P. 1097 | Or. | 1920
Lead Opinion
There is but one serious question presented by the defendants upon the demurrer, and that is raised by their contention that the election is invalid because it calls for a bond issue largely in excess of 2 per cent of the assessed valuation of the property in the county, and therefore violates Section 19 of Chapter 103 of the Laws of 1913, which is the only statute providing the means whereby a county may hold an election for the issue of bonds for the construction of roads. Plaintiff’s reply to this contention is that the limitation expressed in Section 19 of the act referred to has been removed by the latest amendment of Section 10, Article XI, of the Constitution, which became effective some months before the inception of the proceedings now under consideration. This section of the Constitution, as originally adopted, read thus:
“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county
In 1911, when the crusade for better highways had become vigorous throughout the state, the people, by an initiative measure, amended this section, to read as follows:
“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion, or to build permanent roads within the county, but debts for permanent roads shall be incurred only on approval of a majority of those voting on the question.”
Shortly after this amendment became effective, an election was held in Jackson County, wherein a majority of the legal voters determined upon the issue of bonds to the amount of $1,500,000, for the construction of permanent roads, and suit was commenced to enjoin the issue of such bonds in the case of Andrews v. Neil, 61 Or. 471 (120 Pac. 383, 123 Pac. 32). In that case it was held that the constitutional amendment was not self-executing, so far as it enlarged the debt-creating power of the county, and that there could be no election for the issue of bonds thereunder without prior legislation- providing the means or procedure whereby the voters of the county might register their wishes in the matter. Following this decision, the legislature enacted Chapter 103, General Laws of Oregon for 1913, which is the act under which the defendants proceeded in the election which is here involved. Prior to the passage of this act, at the general election in 1912, the people, by initiative action, again amended Section 10, Article XI, of the Constitution to read thus:
This 2 per cent limitation was reiterated in Section 19 of the act of 1913, supra.
Again, in 1919, under the influence of a vigorous campaign for good roads, this section of the Constitution was amended so that the concluding clause reads as follows:
“And debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, and shall not either singly or in the aggregate, with previous debts and liabilities incurred for that purpose, exceed six per cent of the assessed valuation of all the property in the county”: Or. L., Sp. Sess. 1920, p. 5.
Demurrer Sustained. Proceedings Dismissed.
Rehearing Denied.
Dissenting Opinion
(Dissenting).—The proceedings of the County Court are regular in form, and there is left the one serious question as to the efficacy of the laws, now on the statute hooks, to authorize the election by which the issuance of the bonds was authorized.
The plaintiff, on the other hand, contends that the amendment to Article XI, Section 10, of the Constitution, which was adopted June 3, 1919, and became effective by proclamation of the Governor on June 23, 1919, operated proprio vigore to remove the limitation of 2 per cent prescribed in Section 19, Chapter 103, Laws of 1913, and to authorize counties without further legislative action to issue bonds for the construction of roads, subject to the limitation prescribed in Article XI, Section 10, as then amended; in other words, that the machinery for holding such elections being already in existence, and no, new machinery being required for the purpose, the constitutional amendment furnished full authority to counties desiring so to do, to proceed in the manner provided by Chapter 103, Laws of 1913, to hold an election for the purposes above set forth, if the proposed bond issue did not exceed the limitation of 6 per cent prescribed by the last amendment. If the amend-operated as a grant of power directly to the
If, on the other hand, the amendment is to be construed as merely an authorization to the legislature to permit, by an act afterwards to be passed, counties to issue bonds within a limit of 6 per cent, but less if legislative wisdom should so determine, then the proceeding herein must fail.
This involves a construction of the section in question, which is a matter not devoid of difficulty, but which seems, in the judgment of the writer, to indicate that the amendment now being considered is and was intended as a direct grant of power to the counties to proceed with the legal machinery then in hand, and which, by force of the amendment, was entirely adequate for the purpose, to provide for permanent roads within their limits without interference from other sections of the state, acting by means of their representatives in the legislature and without being limited in their action by other sections of the state.
It may be premised that this is not a case like Andrews v. Neil, 61 Or. 471 (120 Pac. 383, 123 Pac. 32), wherein it was attempted to hold an election for the issuance of bonds for road purposes in the absence of any statute authorizing such elections, or providing how or where such proceeding should be initiated. In that case we held that the county authorities could not improvise the machinery for calling and holding such an election, and that the attempt to do so was a nullity for that reason. Thereupon, the legislature
It may also be premised that, while a constitutional amendment is a law of a higher order than one enacted by the legislature, it nevertheless has the same effect upon existing legislation as a law passed by the ordinary methods. Thus it may amend or repeal a prior constitutional or statute provision in conflict with it, just as one statute may amend or repeal a prior one, if such is its necessary effect or intent.
Section 7, Article XI, of the original Constitution provided in substance that the legislative assembly should not create any debt against the state in excess of $50,000, with certain exceptions therein noted.
“No comity shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county at the time this Constitution takes effect shall be disregarded in estimating the sum to which such county is limited.”
The Constitution was adopted in 1859, when the state did not contain to exceed fifty thousand inhabitants, had little taxable property, and was poor in everything, except potential natural resources.
A comparison of Section 7 with Section 10 of the Constitution indicates that, while Section 7 is a limitation on the power of the legislature and addressed expressly to it, Section 10 was an inhibition addressed expressly to the counties as such, and in the whole history of legislation upon this subject we find no statute authorizing counties to contract debts within the limit of $5,000. The section was considered as both a limitation and a permission to counties without further legislative action, to contract debts within the prescribed limit, and the only cases which ever arose involving a construction of that section were in those instances where it was claimed the limit had been exceeded.
The distinction attempted to be made above seems to have been in the mind of this court in the various cases, wherein it has been held that an involuntary indebtedness thrust upon a county by operation of law and which it cannot escape, is not within the constitutional inhibition, the substance of judicial reasoning being that, as the county is compelled by law to perform certain duties and to pay for such perform
Returning now to the evolution of the constitutional amendment, in its present shape, we find that in 1910, owing to changed conditions resulting from new means of locomotion and carriage, inadequacy of rail service and greatly increased population, there arose a general demand for improved and permanent roads, and by an initiative measure Section 10 of the Constitution was amended to read as follows:
“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion, or to build permanent roads within the county, but debts for permanent roads shall be incurred only on approval of a majority of those voting on the question”: Laws 1911, p. 11.
As before stated, there was no election machinery in existence by which the amended section could be put into execution, and we held that for that reason the counties could not avail themselves of the privilege therein granted until such machinery was provided.
Thereupon Chapter 103, page 170, Laws of 1913, was passed by the legislature, with the following title:
“To authorize the County Courts of the State of Oregon to issue and sell bonds or county warrants of the county for the. purpose of building and maintaining permanent highways within the respective counties, and to provide a sinking fund for the purpose of retiring the bonds at maturity; to authorize the several counties of the State of Oregon to hold special elections for the purpose of submitting to the voters
Pursuant to this act, many counties held elections for the purpose of authorizing the issuance of road bonds, and many extensive improvements were authorized and carried to completion.
In 1919 there arose a general demand for further improvements, and it being conceived that the limit of 2 per cent on the assessed valuation of property would not raise sufficient funds with which to effect them, and transportation by means of heavy trucks and automobiles having become more and more necessary, the legislature of 1919 submitted the present amendment, which reads as follows:
“No county shall create any debts or liabilities which shall, singly or in the aggregate, with previous debts or liabilities, exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion of to build or maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of those voting on the question, and shall not, either singly or in the aggregate with previous debts and liabilities incurred for that purpose, exceed six per cent of the assessed valuation of all the property in the county.”
The words in italics indicate the only changes made from the amendment of 1910.
When this amendment was submitted and appeared in the voters’ pamphlet there appeared an affirmative argument signed by two members of the Senate and one member of the House, and concurred in by a local good roads committee’ of Klamath County, setting forth the effect and purposes of the amendment. The
“1. The measure is intended to grant to counties the option of voting bonds up to 6 per cent of assessed valuation for road purposes—it is a matter left entirely with the particular county. As to whether or not, after the passage of this measure, a county votes bonds, will be no concern of any other county.
“2. Many counties desiring more funds for road work are asking that you consent that they burden themselves if they so desire. Your affirmative vote on this measure does not prejudice you in the least, nor cost you a penny.
“3. If, in the opinion of a county, good roads are a paying investment and badly needed, is it not your duty to vote to allow that county to put the question to its people?
“4. A private corporation cannot do business with only 2 per cent of its capital available, much less can a public corporation make necessary improvements on that amount—6 per cent is little enough.
“5. This is a purely local option measure; no county need assume burdens unless it desires.
“Appeal is made to the sense of fairness of voters to grant the opportunity and privilege for which the measure provides.”
There was no negative argument, and the amendment was adopted at the polls by a large majority.
Under our election system, every voter in the state received this voters’ pamphlet, and it is safe to say that those who voted for the amendment did so in the light of the explanation furnished by this official
This brief summary of the history of the legislation on this subject makes it clear to the mind of the writer that it was the intent of the legislature, when the amendment was submitted, and of the people when they adopted it, to do away with the previous 2 per cent restriction and to permit the people of the several counties, within the limit prescribed, to say for themselves without legislative interference, to what extent they would pledge the credit of their counties for the purpose of securing permanent roads.
The original section may have been restrictive, but both the amendments contain permissive elements in that they'allow, and, as heretofore shown, were intended to allow, counties to go beyond the original restriction so long as they did not exceed the prescribed 6 per cent.
What was the mischief to be remedied? Clearly the limitation of the power of the counties to tax themselves for permanent roads, by removing the 2 per cent limitation so that up to 6 per cent they would be free to act in the matter as they might choose. The removal of the restriction was an implied grant of the power so to act.
It should be remembered that, in the absence of any restriction, there was in the counties inherent power to contract debts without limitation as to amount. The original section limited the exercise of this power to the creation of a voluntary indebted
Its effect was not only impliedly to amend the previous amendment, but to amend Chapter 103, Laws of 1913, by implication, by inserting the word “six” instead of “two.” It is simply a case of amending a law enacted by the legislature by another enacted by the people. There was never any necessity for legislative enactment to prescribe the limit within which counties could incur indebtedness. The first amendment did that effectually, but what was then lacking was election machinery by which the counties could exercise the privilege given them by the amendment.
The question as to whether the amendment is or is not self-executing cuts no figure in this case. A self-executing provision is one which furnishes by its own terms the machinery by which the rights under it may be exercised, but it does not follow that because it does not contain within itself such a formula that the rights granted by it must remain in abeyance, if machinery adequate to carry its provisions into effect already exists, which is the ease here. . If a farmer purchases a scythe blade, the blade itself is not "self-executing”—it will cut no grass until it has a snath, but, if he already has a snath that will serve the purpose, he would be but a foolish and extravagant husbandman if he purchased a new snath instead of
This amendment is no mere voluntary proposition suggested by a group of private citizens, but the solemn and deliberate act of the two great law-making bodies of the state acting in conjunction, possessing all the force of a statute and all the supposed sanctity that hedges about a constitutional amendment. Why should the legislature be required to speak again and say in effect, “Section 19 of Chapter 103, Laws of 1913, shall be amended by striking out the figure ‘2’ in line 3, and inserting the figure ‘6’ in lieu thereof, so as to read,” etc., when the highest law that can be enacted has by implication done that very thing. To so hold seems to the writer to be clinging to the veriest shadow of an unprofitable technicality at the expense of defeating the intent of the legislature, when it enacted and submitted the amendment and of the people when they ratified it.
For the reasons above given, I dissent from the majority opinion.
Rehearing
Former opinion set aside and writ sustained February 8, 1921.
On Second Rehearing.
A full statement of the points involved in this case will be found ante, p. 191 (190 Pac. 1097). At that hearing a majority of this court held the opinion that the demurrer to the writ should be sustained and the proceeding dismissed, and it was so ordered. Subsequently and within the term a motion was filed to set aside the order and grant a rehearing, which was done, and the case was submitted for rehearing upon the briefs previously filed.
Subsequent to the order first mentioned we had occasion in the case of Ladd & Tilton Bank v. Frawley, 98 Or. 241 (193 Pac. 916), to re-examine the ques
Writ Sustained. Former Opinion Set Aside.