*1 644
Argued March affirmed March PORTLAND PENDLETON MOTOR TRANSPORTATION HELTZEL, CO. v. PUBLIC
UTILITIES COMMISSIONER 2d P. *2 Attorney of State Thornton, Robert Y. General Lloyd Oregon, Hammel, Assistant Salem, G. argued Attorney and filed Salem, cause General, appellant. for briefs argued for Portland, the cause Tonkon,
M.Moe respondent. brief M. Hick- him the were John With all of Mills, B. Adams and Wallace G. son, William Portland.
LATOURETTE, J.C. declaratory proceeding under the uniform
This *3 brought by judgments plaintiff, the a common against as the defendant Public Utilities carrier, motor Commissioner, 428, determine whether ch. transportation relating fees and “motor Laws 1951, January 1, on became effective taxes” being designated by the such act the 1952, 4,1952, on November the act, date of such people the wherein election, the referendum date of by approved measure. said vote payable plaintiff tax that the became claims date of November the the than not earlier following IV, clause in Art. election, virtue § 1 of the constitution: *
“* * people Any referred to the measure the law when it and become take effect shall by majority thereon, votes cast approved a otherwise”, and not
while contends the the defendant tax ef- became January fective on 1952, virtue of ch. 1, 2, 428, Oregon Laws which follows:
“This Act shall become effective 1952.” very important
This matter becomes it in- since nearly depending volves two million in taxes, dollars on the the effective date of act aforesaid.
By the constitutional amendment of the people adopted what is known as initiative and they referendum law which reserved to themselves power enacting through laws the initiative or passed by legislature. a referendum of acts legis aWhen referendum is the act of invoked, merely becomes a lature then by measure to be voted on people if and, vote in affirmative, they nega the measure becomes an if vote in act; the measure We read in Art. tive, fails. that:
constitution “* * * All elections measures referred to people of the regular the state shall be had at biennial general except legisla- elections, when assembly special Any order a tive shall election. referred shall measure take effect approved by when and become jority it is a ma- cast thereon, votes not otherwise.” gain proper perspective question To at bearing light will refer to few issue, we decisions subject. on the Winkle, Davis v. Or
We said Van *4 P P 495: 91, 280 *
“* # In the measure fact enacted legislature, is which is referred to not majority will a unless a a It never become law law. voting upon
of voters the referred bill vote in of the bill. The enacted favor bill operative ninety days after does not become until adjournment During legislature. the period reduced to a bill.” again people, it
if to the is referred (Italics supplied) following read in 59 301: CJ, Statutes, 717, We approved by people at refer- “When legislative com- endum election the beсomes plete and takes effect of of such as such and taking provided for the the time effect if fix different acts, the measure itself does not go law effect time; and referred cannot into governing prior time to that date. Statutes subject to referendum under the which acts not any event shall take effect cannot constitution override express provision as to constitutional subject shall take effect; to referendum when laws but if the legislature fixes a future effective date thereby has date and such act, at the time of the referendum ineffective become fixed in the referred act will vote, then the law becomes effective.” the date on which County, 88 P v. Multnomah Or In Sears referring 1 of the constitution we to said:
“* * * which clause amendment reads, “ ‘Any shall referred measure аp- when it is law take effect and become the proved majority thereon, votes cast otherwise,’
and not upon clearly that a which the means approval prior its effect cannot take invoked is by subject consequently no act that is vote; go be made referendum can adjournment days the session after the for 90 (Italics supplied) approval vote.”
649 Kadderly 74 P Portland, v. In Or 710, 118, 147, 44 speaking through Bobert S. Mr. Justice 75 P Bean, we said: “* * * [referring those As to all other laws emergency appended] is clause
where they applies, be made cannot amendment go adjourn- days after the into for 90 they adopted, or were ment until the session at which approval people if refer- after (Italics supplied) invoked.” endum is passing Hospital In we should mention Salem v. legislature P 67 136 in еnact Olcott, Or 341. ing Compensation provided Act in the the Workmen’s * “ * * {every subject to act that workman this act taking following the who, after June 30th next effect * ” * * personal injury’ act sustains shall be this the benefits of act. To that act the entitled to referendum was invoked. We held that the effective elec of the act was 30 after November June enactment of tion and not June 30 after the being legislature, controlled the effective date 1 of constitution. has called to State v. Missouri attention been Our Compensation Mo Commission, Workmen’s opinion,, on our all fours 796, which, SW2d passing In call attention with the instant case. we provision concerning the constitutional the fact that as said was, the initiative and Oregon”, Supreme “borrowed from that case, Court regarding language therein used and the language employed in the identical date is constitution. case Missouri the above
In Compensa- part early Workmen’s of 1925 enacted tion Act wherein it was stated that certain sections September act would not take effect until 1925. In the absence of a referendum, act would gone July have being effect 9, 1925, this days adjournment legislature, after the except- ing provision for the which fixed the effective date September 1925. At a referendum election held approved by November the act was *6 proclaimed by governor and later on November In the Missouri 16,1926. case, well as in the instant prior case, effective date as fixed was referendum election. The court there held that November election date was the date on which the p. act became effeсtive and at 802 said: it* * * means, it in the connection wherein in our used, section 57 of article 4 of the Constitu- approved by majority tion, at time ‘it is of the votes cast thereon, and not otherwiseThis precludes any the idea of other effective date. To get go we intent, must to the constitutional provisions, passed and not to the act without a thought lapsed Septem- referendum. The date of bearing upon ber 1, has no 1925, what construction given should be to the Constitution. This date (lapsed by vote) time before the be- determining came and was a dead letter so far as the effective date of the law under the Constitu- ’’ tion. urges defendant that the Missouri case is not
authority for the that reason Missouri has the follow- ing provision: constitutional “ post impair- ‘That no ex facto nor law, ing obligation retrosрective of contracts, or in operation, making any grant irrevocable special privileges passed can immunities, be Assembly.’ the G-eneral Article Constitution, 2, Readopted as 1, Article 1945 Missouri 15; ’’ Constitution. position in because,
Defendant’s is untenable opinion place, is not based the above first provision; even constitutional is not men fact, good because a reason, and fоr a we tioned, think, favorably upon by voted measure, referred when general assembly people, but a law people. It is a familiar that state consti rule constitution, unlike the is an instrument tution, federal may but the absence restrictive, of limitation legislative body’s power is unfet limitation the people it then an referred to the tered. When act is not mature into a measure or a bill and doеs becomes people approve measure, so an until the approved ch. Laws when people than the act of rather became legislature. passing v. Moore, interest is the case State Of 200, 201, 202, 203, Ark which SW the initiative and referendum construed the court *7 pointed as out which, to the constitution amendment Oregon. from In that borrowed decision, was in the. passed act on an Junе the case prop- provided of that the assessment was in which it year erty 1911 as on should become year. Monday The court said of said in June first the that: * “* * Attorney contends that General The Legislature effective and was of the said act bringing of the suit, the because of at the
in force the No. 10 to Constitu- provisions amendment of amend- initiative and as the tion, known necessary making the to determinе it ment, thus amendment.” of said effect Reading language: further we this find “Under this initiative referendum amend- and only necessary pres- ‘laws for the immediate
ment^ public peace, safety’ ervation of the health or are excepted served provisions, power from its no and is re- by pass directly upon such subject operation; laws. All other laws are to its days being given by and, 90 its terms from final adjournment Legislаture session of the passed which them in which demand or order they the referendum thereon, cannot effect take go expiration days or till of 90 adjournment, ap- after such nor thereafter until proved if the referendum is ordered or invoked.”
And further: “The fact terms the statute
something tion of the expira- tois be done under before the period for it to take effect constitutional legislative does not amount to a act shall direction time, take effect at that or sooner than the time fixed in the Constitution.
liberally “The a* # [*] construed to provisions # of the amendment must be effectuate purpose sovereign people, expressly who its terms right upon reserved the to order the referendum Legislature, except all laws such as Legislature itself should and in determine so doing necessary declare were for the immediate preservation public peace, safety. of the health, concluding provision revenue fixing performance dates for others, things the act certain before could become amendment, under the constitutional it comes unless exception, do not manifest an within intention Legislature part put upon it into effect necessary preserva- for the immediate peaсe, safety, public tion of the health, were legislative for and not a not meant are determina-
653 such; as and it should take effect tion that the act days after effect until 90 could not therefore take Legis- adjournment session of the the final of the passed, was or after its lature at which approval time by is in- if the referendum voked.” argued interpretation
It could be that the of the provisiоns of Missouri initiative and referendum by and Arkansas the courts of those constitutions respective compelling obligatory states is nor neither on us because the and referendum amend initiative original ment to our constitution was with us by from us. In a situation borrowed those states such duty interpret inde it is our our constitution own pendently placed on the same construction well-recog the courts of those it is stаtes; however, interpretation placed if on the con nized rule that predicated stitution the courts of those states is thinking, interpretation per logic clear such entitled to favorable consideration. suasive and approach question Let us this now from another viewpoint. Chapter Laws 1951, is divided original § sections: section amends 17 of the two subject, act on which amendment has to do with transportation increasing and taxes. fees Section by act, 1 of the 1951 as thus amended contains merely pro- Section features law. substantive its effective date as in- vides for “ninety days end of the from the session” stead of provided 28. It is in the constitution: provided act had not itself if obvious that date would have then the effective date, an effective provision. governed the constitutional been elementary date an act shall that the be It is every part of law enacted is a come *9 legislature. beyond 90-day If no other date the con- provision stitutional is written into the then the act, provision governs pur- constitutional to all intents and though expressly poses as stated in the act itself. In 90-day provision other in such a words, case this is impliedly plain written into the law. It seems that nо express provision more force should be attached to the implied provision, as to the effective date than to the except perhaps expressed when the date is one that Hospital follows referendum election. See Salem supra. v. Olcott, argument
Let us assume for of the sake provision this 1951 act contained no as to its effective gone date. In the of absence it referendum, would have days into effect 90 ‘‘from the end of the session.”, tax would then have been Had a due. certainly election been held on such an could not act, successfully upon approval be contended that, a vote of the it became effective and tax payable retroactively 90-day due and at the end of period, express provisions Art. IV, view of § 1 of the constitution, which makes the date election the effective If, date the law. in such 90-day provision case, constitutional became in operative, statutory fortiori, date, effective January ineffective, likewise for it became legislative govern is axiomatic that the branch of the legislature whether it or the ment, through or referendum, the initiative cannot enact legislation the state so constitution; conflict with the constitution fixes bar, that in the case at where date, the effec of the election as effective the date necessarily give specified in statute must tive date way fixed the constitution. to that has in the about the Much been said briefs construc- this is tion of statutes. It seems us that beside dealing point are also with the construction we presumed legislature the constitution. It is enacting legislation always mindful of limi- placed by the There is no on it constitution. tations question in the in our minds but that the present case date of fixed the effective in view that that would be with the idea any a referendum. In absence of well-recognized canon construction there is a event, authority regarding and that is where laws, tax *10 resolved in favor doubt be to tax is the will doubtful, Eugene against taxpayer tax. Theatre and the the Eugene 194 243 P2d al., Or 1060. et et al. v. argued quoting the
It
is
from
defendant,
Commission,
v.
Tax
182 Or
Henderson
State
“* * * ‘Beginning with Kent’s dictum in Dash (7 291) Am. Johns, v. N. Y. 5 Kleeck, Van Dec. continuously has been reaffirmed that ‘it “the rule prospective, are and is that statutes will to have retroactive be construed unless employed language in the enactment is so no other clear that admit of will construc- ’ ”, tion.” January prospec- was 1,1952, the effective date passed by but tive when became re- when since that, troactive language employed was so the law clear that in January other construction, admit of no it would clearly intended effective date. was We suggested; quarrel with rule in however, have no construing legislative present are case we § conjunction IV, of the constitution. in with apрarent construing It therefore becomes jointly prospectively two must we construe them since very apparent ambiguity there is a two, between the doing, prospective obviously and, so would be November 4, 1952. suggested
10. It has been because of that, the course events, word “effective” used in the statute “operative”, should be construed to mean and, there- § since Art. fore, IV, of the constitution defines the effective date of the law the date of the election, legally be no there would conflict and the tax could be as of collectible 1952. There is no merit § above because Art. 1 of the constitution IV, * * * the “measure shall take states that effect and approved by majority become the when it is thereon, cast and not and in otherwise.”, of the votes construing provision in Davis v. Winkle, this Van County, supra, supra, v. Multnomah Sears Kad- derly supra, Portland, used the words “take v. we interchangeably become law” with the effect and clearly indicating “operative”, that Art. IV, word precluded the statute from the constitution operative prior becoming to the election advisedly “operative” used was That the word date. strengthened use of three cases above “oрerative” in Art. la of the consti- the word *11 against providing one or a referendum for tution, legis- parts an of the act or sections items, more that, is stated For there it lature. * * “* petition filing of a referendum parts an against sections, items, or more one delay from of that act the remainder not shall act operative.” becoming Construing 1 of the consti- Art. IV, above with “operative” and the word that is obvious tution, it “take used the words effect and become the law” were synonymously interchangeably. and
Affirmed. dissenting. WARNER BRAND, JJ., and (specially concurring). J. LUSK, I concur in the result court. Un- reached wittingly, perhaps, ignored has a distinction court might importance. in which another case be of vital my As to this I shall state views.
Although courts and text writers sometimes use “operative” interchange- the words “effective” and аbly yet with reference to statutes, certain conno- given meanings, tations these words must be different may may and the “effective date an act not be may quite simply date. This be illustrated by assuming that the act under now consideration had provided January it should become effective January instead of 1, 1952. If such an act had approved people by majority been to the referred and genеral of the thereon at the votes cast election day it would become a law on have of the election provided constitution, but gone could not have at that time. That say, is to motor carriers not would have become subject January tax until new 1953. This is provided, because the act would have so and the legis- would voted favor bill which the have Similarly, bill. lature some other had question рrovided “from and after certain taxes should be 1952” assessed against from motor I carriers, collected should notwithstanding thought that, the referendum, have *12 January 1, 1952, would have been determined as the liability time when the tax would commence to be although the measure not carriers, would have become until November 1952. 4, law believe that Art. the constitution 1,
I do not give minority to to a should so construed as be merely invoking by power the referendum voters the prevent approving majority a measure from though legislature, approval passed by even such par- come until after the time when should not operative. to become ticular measure its terms was may people contrary, think that the at I On legis- reject very polls adopt law question initial this, lature. a case like Hence, namely, statutory whether construction, is one of that the means act was 1951, Laws 428, ch. January gone merely 1, effect as to have into (in whether to become it was indicated) on that date. If sense which I have the referendum would were the while case, then, latter becoming prevented until from a law the measure have approved voters on November it was upon adoption provisions, nеvertheless, retroactively upon operate the motor would subject beginning tax, with carriers give prepared, the act however, 1952. I am not legislature, knew course, this construction. might they passed referred to the that it when it expression people. than the some clearer Without retroactively impose the tax an intention to contains of polls, approve I am should at in case the go the law did not to hold that satisfied liability accrue until did commence and the tax 1952. November