162 P. 1059 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
This is an appeal by the plaintiff from a decree dismissing a suit instituted to foreclose an alleged delinquent tax certificate. The question involved is whether the proceedings undertaken to amend a municipal charter were conducted in the manner prescribed. The town of Bay City was incorporated under the provisions of a general act of the legislative assembly, filed in the office of the Secretary of State February 21, 1893: Sections 3206 et seq., L. O. L. Section 3224 thereof contains a clause which reads:
“Every ordinance shall be signed by the mayor, or passed over his veto, and attested by the recorder, and a copy thereof published at least once in a newspaper published in such city or town, or in lieu of such publication, three copies thereof shall be posted in at least three public places therein before it becomes a law.”
The common council of that town, desiring to invoke an exercise of the initiative power reserved to the electors of municipalities by the organic law of the state, enacted ordinance No. 3,. October 17, 1910, proposing to amend and substitute another charter, setting forth a copy thereof, whereby the name of the municipality was undertaken to be changed to that of “Bay City.” Subdivision 2 of Section 1 of article VIII of the proposed amendment reads:
“To levy taxes, not to exceed 5 mills on the dollar per annum on the taxable property within the corporate limits.”
The ordinance provided it should go into effect upon its passage and approval by the mayor, and it was so enacted and ratified on the day stated. This ordinance was not published in a newspaper, nor was a copy thereof posted as required by Section 3224, L. O. L.
.Ordinance No. 3 was first published December 29, 1911, but this was more than a year after the alleged adoption off the substituted charter-. Several other amendments thereto were attempted to be made whereby the annual tax rate could be increased and the pro rata share thereof entered on the roll. In consequence of the defendant’s refusal to liquidate the part of the municipal exaction, the plaintiff paid the same and now seeks by this suit to foreclose the alleged lien given by law to secure $42.52 as the entire amount of the delinquent taxes, penalties, and interest, and to have such real property sold to satisfy that sum with accruing costs, disbursements, and expenses.
No escape from the conclusion so reached seems possible, however much it may be desired to uphold the proceedings of the common council and to sustain the vote of the electors. Section 3224, L. O. L., which was incorporated in and thus became a part of the original charter, prescribed the manner and afforded the measure of the power that could have been exercised in the enactment of ordinances. Until that section was legally abrogated in the manner specified by an exercise of the initiative power, it was impossible to inaugurate an amendment of the charter except by a strict compliance with the mode pointed out. In ThielJce v. Mi-bee, 76 Or. 449 (150 Pac. 854), it was ruled that under Article IY, Section la, of the Constitution reserving to the voters of every municipality the initiative and referendum powers as to all municipal legislation, and Article XI, Section 2, thereof, granting to the voters of every city power to enact a municipal charter subject to the Constitution and criminal laws, a common council of a city could not initiate an ordinance and submit it to a vote of the people as an initiative measure without first enacting it. The decision in that case is controlling herein. As ordinance No. 3 was never legally passed before it was declared to be in effect by reason of the failure to give the required notice, the
It follows that the decree must be affirmed, and it is so ordered. Affirmed. Rehearing Denied.
Rehearing
Denied March 27, 1917.
On Petition for Rehearing.
(162 Pac. 1060.)
Petition for rehearing denied.
Mr. H. T. Botts and Mr. E. J. Claus sen, for the petition.
Mr. Webster Holmes and Mr. T. H. Ooyne, contra.
Department 2.
delivered the opinion of the court.
Plaintiff contends in a petition for a rehearing that in the former opinion we have overlooked Section 3239, L. O. L. This section provides for the approval of ordinances by the mayor and declares that “ thereupon, unless otherwise provided, such ordinance shall become a law and be of force and effect.” This section and Section 3224, quoted in the former opinion, are both parts of the act of 1893. On familiar principles of construction they are to be read together and when they are so read it cannot be held that Section 3239 nullifies the mandatory provisions of Section 3224. In express terms Section 3224 requires the ordinance to be pub-
It is provided by Section 3482, L. O. L., that “amendments to any city charter may be proposed and submitted to the people by the city council, with or without an initiative petition,” but in the instant case the city council failed to do so because of the invalidity of ordinance No. 3. Reliance is placed on a resolution adopted by the council directing the posting of notices of the election which ordinance No. 3 had undertaken to provide for. This resolution did not submit the proposed charter to the voters and therefore did not constitute a compliance with Section 3482, L. 0. L.
It is finally contended that the taxes on which plaintiff relies can be supported under the power of taxation granted by the enabling act of 1893. The pleadings in this case admit that the taxes in question were levied under the authority of the amended charter. The attempt to amend having proved abortive, it follows that the taxes were levied without authority and are void.
The former opinion is adhered to and the petition for rehearing is denied.
Affirmed. Rehearing Denied.