Mckeon v. City of Portland

122 P. 291 | Or. | 1912

Mr. Justice Burnett

delivered the opinion of the court.

In its efforts to enlarge its boundaries, the city of Portland, in this instance, has encountered another municipal corporation. It is not virgin territory which Portland would acquire by the proceedings under consideration. Here are two cities, instrumentalities of government, and it is incumbent upon this court to determine whether the end sought to be accomplished and of which the plaintiffs complain is in harmony with the law of their existence. Hitherto the city of St. Johns was an independent municipality, having an existence distinct from any other' organization of its kind. Under Section 2, Article XI, Constitution of Oregon, its charter was exempt from any direct change or destruction by the legislative assembly of the State. Its legal voters had the power to enact or amend the law giving it a legal entity, but they have no power to repeal that instrument. Having once assumed municipal functions and obligations either of their own volition or at the behest of the legislature, under the former constitution, the voters of St. Johns could never repudiate them or lay them aside except under sanction of the whole people of the State in whom now resides the power formerly exercised by the legislative assembly in that behalf. Dillon, Municipal Corporations (5 ed.) § 332; Montgomery v. Capital City Water Co., 92 Ala. 361 (9 South. 339; Illinois Central Hospital v. Jacksonville, 61 Ill. App. 131; Gale v. Kalamazoo, 23 Mich. 344 (9 Am. Rep. 80) ; Brick Presbyterian Church v. New York, 5 Cow. (N. Y.) 540.

The constitution has not provided for municipal suicide. Yet this is what is proposed to be accomplished by the proceedings under consideration. The charter of St. Johns would be as effectually relegated to desuetude if the election described were to be upheld as if the people of the entire State should by an initiative measure in express terms repeal that charter and that of the city of Portland and consolidate the two cities under a new municipal constitution. Indeed, the Portland charter describes the results to be attained in these words:

“The inhabitants of such annexed territory shall become subject in all respects to the jurisdiction of the authorities of-said city (Portland), and the jurisdiction of any public authority exercised theretofore in such annexed territory shall, so far as it is in conflict with the corporate authority of said city (Portland), thereupon cease and determine.”

This result is not in harmony with the later constitutional provisions the people have adopted, .the spirit of which is segregation rather than consolidation in municipal governments. Whatever may have been the power of the city of Portland under the terms of its charter granted by the legislative assembly to absorb other municipalities, yet it must yield to the later restrictions of the constitution forbidding the legislative assembly to enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. The reason is that, the authority to do this having been taken away from the legislative assembly, the power of the city of Portland, resting upon the act of that lawmaking body, must fail also. The city’s energy in that direction cannot survive that which gave it force. The branch of a tree cannot exist without the trunk. In brief, the confirmation of the scheme in question would amount to a repeal of the charter of St. Johns— a result not within the scope of any prerogative vested in either of the cities or their electorate.

We deem it unnecessary to consider the other questions presented at the hearing.

The decree of the court below is reversed, and one entered here according to the prayer of the complaint.

Reversed: Decree Rendered.