Lead Opinion
delivered the opinion of the court.
This' is a proceeding in mandamus, instituted in this court under the provisions of Article VII, section 2, of the Constitution of Oregon, adopted November 8, 1910, for the purpose of requiring the defendant, as Secretary of State, to file an initiative petition for a local law for the county of Clackamas to exempt from taxation all trades, labor, professions, business, occupations, personal property, and improvements on, in, and under land, and to require that all taxes levied and collected within said Clackamas County shall be levied on and collected from the assessed values of land and other resources, separate from the improvements thereon, and on and from the assessed value of public service corporation franchises and rights of way.
The following facts are alleged: That said petition was prepared and circulated in compliance with an act of the legislature of 1907, entitled “An Act to provide for carrying into effect the initiative and referendum powers reserved bya the people in Section 1 and Section la. of Article IV of the Constitution of the State of Oregon on general, local, special, and municipal legislation; to regulate elections thereunder. * * ” Laws 1907, c. 226. That the petition was signed by 674 legally qualified voters of the county of Clackamas, more than the percentage required for that purpose. That the same was presented to defendant for filing, who, awaiting the opinion of the
It is contended by the Attorney General and counsel for defendant that Article IX, Section la, of the Constitution of Oregon, is not self-executing; that counties are not municipalities, within the meaning of Article IV, Section la, of the constitution; and that the procedure indicated by Section 3470 et seq., L. O. L., does not apply to them.
The theory of plaintiff is that Article IV, Section la, confers upon counties the power to initiate county legislation; that the act of 1907 provides the machinery by which such right may be exercised; that Article IX, Section la, gives to counties the power to regulate taxation within their boundaries.
“The legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or reject the same at the polls, inde*507 pendent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum. * * Petitions and orders for the initiative and for the referendum shall be filed with Secretary of State, and in sumitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor.”
Article IV, Section la, adopted June 4, 1906, relating to the initiative and referendum on local, special, and municipal laws, and parts of laws, is as follows:
“* * 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 ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure by the initiative, in any city or town.”
Article IX, Section la, proposed by initiative petition and adopted by a majority of votes at the election November 8, 1910, provides as follows:
“No poll or head tax shall be levied or collected in Oregon. No bill regulating taxation or exemption throughout the State shall become a law until approved by the people of the State at a regular general election. None of the restrictions of the constitution shall apply to measures*508 approved by the people declaring what shall be subject to taxation or exemption and how it shall be taxed or exempted whether proposed by the legislative assembly or by initiative petition; but the people of the several counties are hereby empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted.”
Article IV, Section la, and Article IX, Section la, of the constitution, are not self-executing in respect to counties, as they make no provisions regarding the manner of their enforcement. By the first of these, the initiative and referendum powers reserved by the people are further reserved to the legal voters of every municipality and district as to all local, special and municipal legislation of every character in their respective municipalities and districts. By the second, the people of the several counties are empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted. In Article IV, Section la, it is specifically provided that the manner of exercising such powers shall be prescribed by general laws, except as to cities and towns; neither section containing rules by means of which this right may be given the force of law as regards local legislation in counties. Cooley’s Constitutional Limitations (7 ed.) 121; Long v. City of Portland, 53 Or. 92, 96 (98 Pac. 149, 1111); Reeves v. Anson, 13 Wash. 17 (42 Pac. 625); Stevens v. Benson, 50 Or. 269 (91 Pac. 577). Hence we must look at the general laws of this State for the manner of executing these sections of the organic law.
It is urged that this act was passed prior to the amendment of the constitution contained in Article IX, Section la, and is not applicable thereto. Though the machinery for carrying this amendment into effect was created before the birth of the amendment, yet such machinery or provisions of the enabling act fit with almost exact nicety, and we do not think it necessary for the people or the legislature to re-enact the provisions of this law.
In Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153, 155), this court, speaking through Justice MOORE, in construing Article IV, Section la, said:
“The words ‘municipality’ and ‘district,’ as used in the clause of the amendment adverted to, are evidently expressions of equivalent import, for a district legally created from a designated part of the State and organized to*510 promote the convenience of the public at large is a municipal corporation.”
“In general, all of our American cities, towns, and counties are public corporations, full or quasi. They are created by the legislature, and are invested with power to decide and control local and subordinate matters pertaining to their respective localities.”
In Straw v. Harris, 54 Or. 424, 437 (103 Pac. 777, 782), we find this language:
“Municipalities are but mere departmnets or agencies of the State, charged with the performance of duties for and on its behalf, and subject always to its control.”
See, also, Words and Phrases, 4622. On page 434 of 54 Or. (103 Pac. 781), in the same opinion (Straw v. Harris), Mr. Justice King, speaking for the court, says:
“To begin, let it be remembered that municipal corporations of the class under consideration do not come within those designated as counties, cities, or towns; and that it was intended that municipalities, other than those enumerated, might be created is obvious from the language used in Section 9 of the same article, namely: ‘No county, city, town, or other municipal corporation/ etc. The clause other ‘municipal corporation’ clearly implies and indicates that the framers understood and recognized that there may be corporations, other than those enumerated,*511 of which we have school districts, irrigation districts, road districts, drainage districts, and ports. * *”
In Simon v. Northup, 27 Or. 487 (40 Pac. 560: 30 L. R. A. 171), a case construing the legislative enactment requiring Multnomah County to pay the bonds of the city of Portland, we quote from the brief of the learned counsel, at page 492 of 27 Or., as follows:
“The legislative assembly cannot transfer from one municipality (City of Portland) to another (Multnomah County) an indebtedness already resting on the former, and make it an obligation of the latter.”
In Cook v. Port of Portland, 20 Or. 580, 585 (27 Pac. 263, 264: 13 L. R. A. 533), Mr. Justice Bean quotes with approval from the case of Curry v. Dist. Tp. of Sioux City, 62 Iowa, 104 (17 N. W. 191), as follows:
“The word ‘municipal,’ as originally used in its strictness, applied to cities only; but the word now has a much more extended meaning, and when applied to corporations the words ‘political,’ ‘municipal’ and ‘public’ are used interchangeably.”
A county is a public corporation, classed with cities, towns, and villages, and invested with subordinate legislative powers to be exercised for local purposes connected with the public good, and subject to the control of the State. 2 Kent, *275.
“The term ‘local,’ as applied, to statutes, is of modern origin, and is used to designate an act which operates only within a single city, county, or other particular division or place, and not throughout the entire legislative jurisdiction. In this sense, the term ‘local’ is the antithesis of ‘general.’ ” 36 Cyc. 987, note, citing State v. Sayre, 142 Ala. 641 (39 South. 240).
The principle of local self-government is regarded as fundamental in American political institutions. It is not an American invention, but is traditional in England, and is justly regarded as one of the most valuable safeguards against tyranny and oppression. From Blackstone and the elementary writers we learn that the civil divisions of England—counties, towns, etc.—date back to the times of Alfred the Great. In no changes of policy, dynasty, peace or internal war, or even conquest, have these organizations been abandoned. They are in effect the same now as they were before the Norman invasion. Wherever the Anglo-Saxon have gone with their language and laws, these communities, each with a local administration, have gone with them. Here have been the seats of modem civilization, the nurseries of public spirit, and the centers of constitutional liberty. They are the opposites of those systems that collect all power at a common center. This right of self-government should be carefully guarded, and every infraction or evasion thereof condemned. This important principle finds its ideal counterpart in the New England town meeting, which is a legal assembly composed of the qualified voters of a town, and held for the election of all town officers and the discussion of all' matters pertaining to the public business, property, and expenses of the town. Black’s Constitutional Law (3 ed.) 504, 505.
In pursuance of this general principle, municipal corporations are established in all the states and invested
In this State we have a dual system of legislation. By the provisions of our constitutional amendments, the right to enact local, special, and municipal measures is reserved to the legal voters of their municipalities and districts. This authority is to be exercised in the respective localities by means of the initiative process. Whatever have been the duties or powers of counties prior to the adoption of these amendments, we see no reason why such quasi municipalities or districts cannot be endowed with legislative functions by the plain provisions of the constitution.
Carrying out the precepts contained in these portions of our constitution by giving them the meaning clearly indicated by the language used therein, and as generally understood by those for whom their provisions were intended, and proceeding in accordance with the legislative enactment, known as the “Enabling Act,” we conclude that the initiative power, or power to propose and enact laws, reserved by the people in Article IV, Section 1, was further reserved by Article IV, Section la, 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 municipality or district; and that the people of the several counties are authorized by Article IX, Section la, to regulate taxation and exemption, within their several counties, in the manner provided by Article IV, Section la. This is to be done in a manner subservient to any general law of the State which may be enacted, thus utilizing the power conferred upon counties as political subdivisions of the State.
Peremptory Writ Ordered.
Concurrence Opinion
delivered the following concurring opinion.
I concur in the general line of reasoning pursued in the majority opinion, and in the result arrived at thereby. I do not think the propriety or even the constitutionality of the proposed measure is properly before us. I agree with Mr. Justice Burnett in the conclusion that, if the proposed legislation infringes upon, or in any way hinders,
Suppose a bill should be presented to the legislature and ordered printed in its regular course. Would anybody seriously contend that the State Printer could say: “This bill is unconstitutional, and I therefore refuse to print it?” Surely not. I can see no difference in the two cases; the duty to file in the one case, and the duty to print in the other, seem to me to stand upon the same footing. The whole of the proposed bill is not before us judicially, and there may be possible doubts suggested as to its constitutionality, but these questions, as well as those as to its propriety, should be left, the first to the courts, and the second to the people, in their regular course.
Dissenting Opinion
delivered the following dissenting opinion.
Section 2 of Article VII of the constitution of the State, as amended by the initiative process at the general election of November, 1910, confers upon the Supreme Court the authority, in its own discretion, to take original jurisdiction in mandamus, quo warranto, and habeas corpus proceedings. Under the sanction of this rule, the plaintiff has presented his petition for, and the court has issued its alternative writ of, mandamus to the defendant,
The questions involved have been presented to the court by a general demurrer to the writ. The form of the initiative petition mentioned is not given in the writ; neither is it set out according to its legal effect. All that appears on that point is the statement that the “petition so caused to be circulated by the plaintiff and others was prepared pursuant to and in compliance with the provisions of an act of the legislature” filed in the office of the Secretary of State February 25, 1907, the title of which is given in full. Section 3470, et seq., L. O. L. There are no facts alleged from which the court can say whether the legal conclusion thus embodied in the writ is a correct one or not. This would probably make the writ amenable to the demurrer, but as the point was not mentioned at the argument it will not be considered as a reason for this opinion. The parties based their contentions solely on the construction to be given to certain sections of the constitution involved, and are entitled to have the case decided on the question thus presented. The plaintiff claims to be operating under Section la of Article IX, as enacted by the initiative process at the general election of November, 1910, and Section la of Article IV of the constitution, enacted by the same process at the general election of June, 1906, and contends that
Article IX, Section la: “No poll or head tax shall be levied or collected in Oregon. No bill regulating taxation or exemption throughout the State shall become a law until approved by the people of the State at a regular general election. None of the restrictions of the constitution shall apply to measures approved by the people declaring what shall be subject to taxation or exemption and how it shall be taxed or exempted whether proposed by the legislative assembly or by initiative petition; but the people of the several counties are hereby empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted.”
Article IV, Section la: “* * 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. * * ”
Much was said in the argument, and printed in the brief of the plaintiff here, to the effect that we must consider the design of the initiative system in general and the sections under consideration in particular as affecting the canon of construction to be applied to the matter at issue. The essence of the argument for the petitioner is that the general purpose of the whole system was to restore political power to the people. This argument is fallacious and misleading. Political power in this State has always resided in the people. Whatever of constitu
It is for courts and judges, as servants of the people, charged with that duty, to take all the constitutional and statutory utterances of the people and construe .them, so that, if possible, all shall stand, and the will of the people shall be subserved. The people have declared, in Section 32, Article 1, of their constitution, that:
“No tax or duty shall be imposed without the consent of the people or their representatives in the legislative assembly and all taxation shall be equal and uniform.”
They have also proclaimed, in Section I of Article IX, that:
“The legislative assembly shall provide by law for uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, except such only for municipal, educational, literary, scientific, religious or charitable purposes as may be specially exempted by law.”
“None of the restrictions of the constitution shall apply to measures approved by the people declaring what shall be subject to taxation or exemption,” etc.
But it does not appear, either in direct terms or by necessary inference, that the restraints of the fundamental law on the subject in question have been removed from any subordinate instrumentality of government. This construction is still further strengthened by the language at the end of Section la of Article IX, declaring that the regulation of taxation and exemptions by the people of the several counties shall be “subject to any general law which may be hereafter enacted.”
The “local law,” so called in the writ which the petitioner would compel the defendant to submit to the voters of Clackamas County, is obnoxious to the requirement of uniformity of taxation so prominent in the basic law which the people themselves have promulgated. By general law the State must, by taxation, raise revenue to provide for the maintenance of the State institutions and other legitimate expenses. For instance, by the initiative law enacted by the people at the general election in November, 1910, there is levied an annual tax of 1-25 of a mill on the dollar upon all the taxable property within the State for the support and maintenance of the Normal School at Monmouth. Again, by Section 4381, L. O. L., the county courts of the several counties of the State are authorized and directed to levy, in addition to the taxes now authorized to be levied by law, a tax, not
That Section la of Article IX, reads standing alone, is not self-executing, without further legislation of the subject, is practically conceded by the petitioner. The trend of his argument is that his right to have the bill presented to the people depends upon Section la. of Article IV, reserving to the legal voters of every municipality and district of this State the initiative and referendum power as to all local, special, and municipal legislation of every character in or for their respective municipalities and districts. He argues at great length and with great skill and quotes many definitions to show that the terms “municipality” and “district,” in Section la of Article IV necessarily include counties. Section 2861, L. O. L., which has been the law of the territory and State since 1854, reads thus:
“Each county shall continue to be a body politic and corporate for the following purposes, to wit, to sue and be sued, to purchase and hold for the use of the county lands lying within its own limits and any personal estate; to make all necessary contracts, and to do all other necessary acts in relation to the property and concerns of the county.”
For present purposes, this definition is of more authority than those of publicists and lexicographers. The people must have had in mind this delimitation of the powers of a county when they enacted Section la of Article IV. By the terms of the statutory definition, and
Moreover, the legislative power described in Section la of Article IV is confined to local, special, and municipal legislation in and for the respective municipalities and districts. Whatever we may say as to what groups of people, less than the whole people, may exercise legislative power thus reserved, still the lawmaking power described in Section la of Article IV is confined to local, special, and municipal legislation. Although, by Section la of Article IX, the regulating power of the people of a county is restricted to “taxation and exemptions within their several counties,” the proposed legislation is not limited, in its effect, to Clackmas County. It is not local, special, or merely municipal. Insomuch as, by its system of exemptions, it would shift some of its burden of State taxation to rest upon other counties, it affects more or less powerfully the whole taxation system of the State. It is beyond the scope of Section la of Article IV, and is not authorized by that section.
Another argument of the petitioner is that the words at the end of Section la of Article IX, “subject to any general law which may be hereafter enacted,” are a condition subsequent, and that until a general law is enacted the people of the several counties have free rein to regulate taxation and exemption therein. In this connection, he contends that Section la of Article IV provides the means and rule for carrying into effect this provision of Section la of Article IX. In other words, as he claims,
The situation presented, then, is that this court is asked to apply mandamus to an officer of a co-ordinate branch of the government, sworn, like the judges, to support the constitution of the State, and compel him to officially participate in furthering a scheme in derogation of that same constitution, and to burden the people of the county
For these reasons, I dissent from the conclusion reached in the majority opinion.