162 P. 498 | Or. | 1917
delivered the opinion of the court.
It is plain, and counsel for the port concede, that-the legislative act of 1901 does not empower the Port of Portland to improve Oregon Slough for the reason that it is outside the limits of the City of Portland and is at a point on the Columbia River above and east, of the mouth of the "Willamette River, and is not any part of “the .harbor in the Willamette at the City of Portland” and is no part of “the channel of "the Willamette and Columbia Rivers between said harbor and the sea”; and, therefore, no funds can be expended in the improvement of Oregon Slough unless the charter was amended in 1912. The steps taken •to bring about the election and attempted amendment in 1912 were regular in all respects and the only question involved is whether the legal voters of a port can amend their own. charter. If the voters of the. port cannot on their own initiative, and without a
If the reasoning employed and the conclusion reached in State ex rel. v. Astoria, 79 Or. 1 (154 Pac. 399), are to govern, then, that case is decisive here for it is there held that the legal voters of a port cannot on their own independent initiative amend their charter. While this appeal could, without further discussion, be determined upon the authority of the latest precedent, nevertheless, on account of the immediate as well as the future importance of the questions presented, they have been examined and considered anew.
This litigation arises out of the difficulty encountered in construing two amendments to the state Constitution which were adopted in 1906 and are designated as Article XI, Section 2, and Article IV, Section la. All that part of Article XI, Section 2, which is material here, reads thus:
“Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal chartér, subject to the Constitution and criminal laws of the State of Oregon.”
Preserving the punctuation found in the initiative petition filed with the Secretary of State, Article IV, Section la, is here set out in full:
*548 “The referendum may be demanded by the people against one or more items, sections or parts of any act of the legislative assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections or parts of an act shall not delay the remainder of that act from becoming operative. The initiative and referendum powers reserved to the people by this Constitution, are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than 10 per cent of the legal voters may be required to order the referendum, nor more than 15 per cent to propose any measure, by the initiative, in any city or town.”
The punctuation of the above section as it is printed in Lord’s Oregon Laws is in some respects different from the punctuation found in the petition itself.
Stated in broad terms the argument is that Article IV, Section la grants to every “municipality and district” the initiative and referendum powers “as to all local, special and municipal legislation;” that the disputed amendment of 1912 was municipal legislation; and that therefore the port was empowered to amend its charter.
Since Article IV, Section la, speaks of “the initiative and referendum powers reserved to the people by the Constitution” and as the powers referred to are preserved by Article IV, Section 1, it will be necessary to give some notice to the latter section before we can know what is further reserved by the former section.
The constitutional amendment of 1902, known as
The initiative power defined in Article IV, Section 1 means the right of the legal voters of the state at large to initiate and enact laws or amendments to their Constitution. Before this amendment of 1902 the people had delegated their legislative authority to their representatives by a Constitution which declared that “the legislative authority of the state shall be vested in the legislative assembly”; but, by reserving the initiative power the people returned to themselves the right, which they had in the very origin of state government, to legislate. In the beginning, the whole sum of legislative power came from all the people and when they reclaimed the right to legislate they only returned to themselves what they had previously delegated to their representatives and hence no charter is needed to measure the right of the people to legislate, for it is a right which is unfettered except as the people themselves have limited it. The legislative assembly is still retained, however, as the agent of the people and the principals have reserved unto themselves the right to ratify or reject measures passed by their representatives. "When the people initiate and adopt a law they do so in the exercise of the initiative and when a measure which has been adopted by the legislature is referred to and acted upon by the people they
Reasoning by analogy, it is contended that since the total amount of legislative power has been given by the Constitution itself to the people of the state at large, therefore the whole sum of municipal legislative power has likewise been given by the Constitution itself to the people of a municipality and to those of a district, and that nothing more is required to aid the grant made by the Constitution. This contention is equivalent to saying that as to local, special and municipal legislation a municipality or district is just as supreme as are the legal voters of the state as to state-wide legislation, and that therefore no charter is required or, even if it is essential, the legal voters can amend their own charter or act of incorporation without first receiving permission from any other legislative body.
It must be conceded that Article IV, Secton la, includes cities and towns as well as other municipalities and that cities and towns derive just as much authority from this section as any other municipality, and that therefore if Section la dispenses with the need of charters then a city or town can enact municipal legislation to the fullest limit without a charter. This section grants to a port no more power than it con
To amend a charter is one step and to exercise a charter power by transforming it into an ordinance is another step so that the process has required two steps. Why has the Constitution made provision for two steps if the first step was enough? There is nothing in these two amendments to the Constitution which
Proceeding with the contentiou it is insisted that, even though it be determined that a port must have
If the legislature is prohibited from passing measures which may operate as amendments to charters the prohibition cannot be found in Article IV, Section la. Viewing this section by itself, not a word can be found which intimates that the legislature is powerless to pass measures affecting charters. - It is true that Section la further reserves the initiative and referendum powers, and the powers referred to are the ones which had been previously reserved to the legal voters of the state. The powers reserved to the legal voters of the state do not abolish the legislature nor preclude it from enacting laws but on the contrary “the legislative authority of the state shall be vested in a legis
The examination of Article XI, Section 2, with a view of ascertaining the extent of the prohibition imposed upon the legislative assembly carries us into a field of contention and debate. While the words found in the amendment cannot be controlled by any extraneous language, whether appearing in the ballot title or in the argument which accompanied the tentative draft, or elsewhere, nevertheless, it may be of some interest first to give an account of the genesis of the amendment and possibly this recital together with the words of the ballot title will throw some light upon the
On September 6, 1906, a circular letter accompanied by a tentative draft of a proposed amendment to Article XI, Section 2, and a like draft of what is now Article IV, Section la, was mailed “to more than a thousand representative citizens of Oregon to get their opinion on the wisdom of trying to submit the inclosed suggested constitutional amendments.” The letter avowed that it was the purpose of the signers to “try to form an organization of four hundred or five hundred citizens to present such of these measures as may be agreed upon” and closed with a request for a reply to W. S. TJ’Ben. The names of 17 persons with that of Thomas A. McBride, who is now the Chief Justice of this court, heading the list, appear as the signers and authors of the letter. Subsequently the persons who were promoting the proposed constitutional amendments formed an organization known as the People’s Power League of Oregon with four officers and an executive committee of 21 persons including Thomas A. McBride.
The tentative draft of the proposed amendment to Article XI, Section 2, was substantially the same and almost identical in terms with Senate Joint Besolution No. 3, which was adopted by the legislative assembly in 1901 and again in 1903 (Laws 1901, p. 471; Laws 1903, p. 346); and accompanying that tentative draft was an argument which is here quoted for the reason that it fully explains the real purpose of the amendment :
“The usual method of making city charters in the past has been, in this state, for a few men to agree on the charter they wanted for the city. Then it was-introduced in the legislative assembly by one of their*561 county members. It was referred to a committee consisting of the members from his county, reported favorably, of course, and enacted by unanimous consent of the legislature. No other member ever sees, or cares anything about it. The only exception in Oregon to this method is the charter under which Portland is governed, and which seems to be the most satisfactory the city ever had. This was drafted by a committee of citizens and approved by the people at an election, after which it was enacted by the legislature-But the action of the legislature is a needless formality. Of what interest are the local laws of Portland to farmers of Klamath County, or the charter or ordinances of Lakeview to the fishermen of the Columbia River ? This amendment is another step towards home rule in home affairs. If it is enacted it will not only relieve the legislature of a great deal of useless labor,, but it will place the power to make the city laws in the hands of the people who have to obey them.”
An examination of the public prints issued at that time discloses that the idea which was uppermost in the minds of all was to take from the legislature the power to make a charter for a city or town by a special law. The evil sought to be removed was the making of a single charter for a single city by a few men who-agreed “on the charter they wanted for the city.”' The suggestion was nowhere made that evils were necessarily involved in the enactment of general laws which affected all the cities and towns alike. Indeed, comparatively few' general municipal laws had been passed; and it is a noteworthy fact that most- of the-general municipal ]egislation was admittedly meritorious, for example, the Bancroft bonding act. While-the farmers of Klamath County might not be interested in a law which applied only to Portland and the Columbia River fishermen might not be concerned in the charter or ordinances of Lakeview, yet, both the
The tentative draft of Article TV, Section la, was also accompanied by an argument which is devoted mainly to a consideration of the referendum against single items and sections of appropriation bills and concludes with a single sentence that is applicable to the desirability of referring municipal legislation and reads thus:
. ‘ ‘ The adoption of this amendment will give the people power to control salaries of county and district officers.”
After making changes, the tentative drafts finally crystallized into forms which were satisfactory to the People’s Power League of Oregon and that organization then caused initiative petitions to be circulated and, on February 3, 1906, completed initiative petitions were filed in the office of the Secretary of State requiring that both proposed measures be placed upon the ballots to be cast at the ensuing general election. At the time of the submission of the proposed amendments it was not the specific duty of the Attorney General, as it is now, to prepare the ballot titles for initiated or referred measures, and consequently the ballot title for Article XI, Section 2, was prepared by a quorum of the executive committee of the People’s Power League of Oregon and filed with the Secretary of State who caused the ballot title to be printed, as it was submitted to him, thus: “Constitutional amendment giving cities and towns exclusive power to enact and amend their charters.”
“The adoption of this amendment will give the people power to control salaries of county and district officers.”
Assuming, however, that the word “municipality” is used in its comprehensive sense and embraces a port, we are at once carried into the still controverted question of whether the legislature is prohibited from enacting a general law affecting municipalities. If the words found in the ballot title are divorced from all other considerations, whether essential and omnipresent or immaterial and transient, then some evidence is found to support the contention that the prohibition precludes the passage of a general as well as a special law, for the language of the ballot title prepared by the executive committee of the People’s Power League of Oregon is: “Constitutional amendment giving cities and towns exclusive power to enact and amend their charters.” Even though it be conceded that any weight can be attached to the wording of the ballot title, nevertheless, it must be considered in connection with the amendment itself; and although the word “exclusive” is employed, yet, no person contends that the power to amend charters has been lodged with those municipalities to the exclusion of every other law-making authority. It could not literally be true that a city has exclusive power to enact and
The fact that the right of the legal voters of cities and towns to enact or amend their charters is “subject to the Constitution and criminal laws of the State of Oregon,” involves the suggested implication that the right is not subject to any laws except criminal laws and this is a strong circumstance in support of the theory that the legislature cannot enact a general law affecting the charter or act of incorporation for any municipality, city or town.
The word “any” has played an important role in some of the prior discussions, the argument being that the term “any” means “all” and is equivalent to saying that the legislature must keep its hands off every charter and every act of incorporation of every municipality, city and town. Omitting the word “any” there is not even one word indicating the plural number in the second sentence of Article XI, Section 2. The sentence is not “any and every charter”; it is not: “any charters”; it is not: “any or every charter”; nor is it: “any or all charters.” Omitting the word “any”, every word is used in the singular number and unless the word “any” gives a
Reverting to the evil which the amendment was designed to remove, it will be recalled that the objection voiced by the argument, which the framers of this amendment submitted with the tentative draft, was that city and town charters were being passed by the legislature for single cities and towns under circumstances which in the final analysis made the charter ostensibly the legislative act of all but really the legis
The interpretation which gives to the word “any” the meaning of oneness as distinguished from aMness is further supported and strengthened by the language used in the companion amendment, Article TV, Section la. Before noticing the twin section more minutely, let us remind ourselves that it is fair to assume that Section la was drawn with reference to the variant internal governmental organisms found in the different forms of municipalities and districts. A city or town had within itself its own representative body exercising law-making powers; some other forms of local government, for example ports, possessed an analogous internal legislative body; and while the remaining municipalities and districts had their representatives yet those representatives were only empowered to transact business and had no authority to make municipal laws. Again quoting from Article IV, Section la, it will he observed that the initiative and referendum powers are further reserved to the legal voters of every municipality and district “as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. ’ ’ At this point we direct attention to the fact that the initiative petition filed with the Secretary of State does not have a comma after the word “special” and consequently it was erroneous to insert a comma after the word “special” when Article IV, Section la, was carried into Lord’s Oregon
This result does not emasculate the power of cities and towns to enact or amend their own charters. Take for example the Bancroft bonding act and assume that it had been passed by the legislature to-day: It would apply to all the cities and towns in the state and would be available to all the people of the respective cities and towns. To-morrow, however, the city could legislate concurrently upon the same subject and make use of its legislation if the city legislation did not conflict with the state legislation. If the legislature passes a general municipal measure it can be referred to the voters of the entire state the same as any other general legislation, but it is safe to say that in the practical administration of affairs legislators will be extremely tender of the rights and the wishes of cities and towns. The legislature cannot pass a special law for a city or town; but it can enact local, special and municipal legislation for any other kind of a municipality or district subject, however, to the right of the legal voters of such municipality or district to refer the measure to themselves for their approval or disapproval. A painstaking investigation by every member of the court confirms our belief in the correctness of the conclusion that the legislature can enact general laws concerning cities and towns and other municipalities. A construction of the Constitution which enables the legislature to pass a general law relating to cities and towns harmonizes the different sections and makes the organic law consis
Speaking for himself the writer says that: had any doubt remained after an extended examination of the subject it would be clarified and entirely removed by the declaration of Mr. Chief Justice McBeide who says that the sponsors for the amendments neither intended nor thought nor even dreamed that the amendments would prohibit the legislature from enacting* general laws relating to municipalities, cities and towns. He assisted in launching the movement to amend the Constitution; his guidance was sought and his counse] was followed by his coadjutors; he knew the object designed to be accomplished; and no living person more than he is in a position to speak understandingly of the intention sought to be expressed by the language employed, for the reason that he helped to frame both amendments. “He who made the law knows best how it ought to be interpreted” is not less true now than it was when Rousseau wrote.
Summarizing the foregoing discussion: The legislative assembly cannot create any corporation by a special law; but corporations of all kinds may be
“A judgment for or against a municipal corporation, in a suit concerning a matter which is of general interest to all the citizens or taxpayers thereof, as the levy and collection of taxes, or public contracts or other obligations, or public property, its title, character. or boundaries, is binding, not only on the municipality and its officers, but also upon such citizens or*575 taxpayers, in so far as concerns their rights or interests as members of the general public, although not in respect to rights which they hold as individuals, peculiar to themselves and not shared with the public. And subject to similar limitations, a judgment between certain residents or taxpayers and the municipality may he conclusive on all other citizens similarly situated.”
And then we point to 23 Cyc. 1221, where we read that:
“The decision of an appellate court is binding and conclusive upon the parties, as to the matter or point adjudged, in subsequent litigation between them in the same or any other court, and this is true even though the appellate court has since decided differently in other cases.”
The interveners contend that when they made their investments they did so relying on the power of the legal voters to amend their own charter as ruled in Farrell v. Port of Portland, 52 Or. 582 (98 Pac. 145). No court ruled that the port must dredge Oregon Slough or that the interveners could themselves compel the improvement. The right to do and the right to compel to do are not identical. If, after some court has held that a city can improve streets, a person buys a city lot relying on the city to pave the street in front of his property that court decision plus the purchase of the lot do not enable the property owner to compel the city to lay pavement on the street in front of his lot.
All the parties to this suit agree that it is essential to the development and welfare of the Port of Portland that it he granted power to improve Oregon Slough. The legislative assembly is now in session and has ample authority to grant the desired power to the Port of Portland.
Reversed and Remanded.