STATE ex rel HALEY, Respondent, υ. CITY OF TROUTDALE et al, Petitioners.
TC 421 424, CA 5819, SC 25235
Supreme Court of Oregon
January 31, 1978
576 P2d 1238
Argued July 12, 1977, reversed January 31, 1978
Al J. Laue, Solicitor General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General.
Willard E. Fox of Allen, Stortz, Barlow & Fox, Salem, filed a brief for Oregon State Homebuilders Association as amicus curiae.
Orval Etter and Stanton F. Long of Johnson, Harrang & Mercer, Eugene, of attorneys for the City
LINDE, J.
Tongue, J., specially concurring, joined by Howell and Bryson, JJ.
The City of Troutdale asks us to reverse a decree enjoining it from enforcing a provision of a city building code ordinance which is more stringent than a corresponding provision of regulations promulgated by the state Director of Commerce.
The legislative assembly in 1973 authorized the Director to promulgate a state building code.
The Director initiated this suit in the name of the state to enjoin the city from enforcing this requirement. The city defended on the grounds that its ordinance did not conflict with the state regulation and that, if it did conflict, the state law cannot constitutionally displace the ordinance. The trial court entered a decree for the state, and the Court of Appeals affirmed. 28 Or App 93, 558 P2d 1255 (1977). We allowed review to consider the relationship between the state and local enactments.
I
There is a preliminary question whether the state‘s complaint stated a justiciable case for equitable relief against the city. The courts below did not examine the issue and the parties did not address it until invited to do so by this court, perhaps sharing a desire for a judicial answer to their disagreement; but that desire alone does not make a justiciable case. See, e.g., Gortmaker v. Seaton, 252 Or 440, 450 P2d 547 (1969); Oregon Medical Ass‘n v. Rawls, 276 Or 1101, 557 P2d 664 (1976); City of Hermiston v. E.R.B., 280 Or 291, 570 P2d 663 (1977). It was incumbent upon the courts to raise the question if the parties did not, before deciding a constitutional issue.
The suit was brought in the name of the state on the relation of the Acting Director of the Department of Commerce, demanding equitable relief against the city. The state concedes that the Department of Commerce lacks statutory authority to maintain a suit on its own. Instead, the state invokes precedents that have permitted the state to sue to enforce a “public right” on the relation of a private citizen, for instance to compel the proper administration of the election
The complaint alleges merely that the defendant city has enacted and enforced an ordinance requiring “double wall” construction of buildings, that the ordinance “is in conflict with” the structural specialty code adopted by the state and its enforcement is contrary to the state‘s building code, that defendants “have refused to comply” with the state‘s code,4 and that plaintiff has no adequate remedy at law. These allegations leave considerable doubt for what injury the state desires a remedy, at law or otherwise. They fall short of the state‘s interest in its own buildings, as in Duniway, supra, or in its funds, State ex rel Taylor v. Lord, 28 Or 498, 43 P 471 (1896), or in the execution by local officials of state functions imposed upon them by law, as in state elections, Ware, supra, and Stannard, supra, or welfare administration, State ex rel State Public Welfare Commission v. Malheur County Court, 185 Or 392, 203 P2d 305 (1949). If the only claim is that requirements which the ordinance directs to local builders are preempted by the state‘s directives to the same builders, this may lead to a challenge by a builder, but it does not show that the state is injured.
The question is whether the local officials have violated any duty toward the state as such. The state building code statute in this case does not impose upon
II
The Court of Appeals found the statute and the ordinance to be irreconcilable and concluded that it had to determine whether the state or the city had the predominant interest in the disputed construction standard under the test of State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962). But that test expressly related to the validity of a state law concerning local modes of government, not to the validity of state and local regulations addressed to private persons. The issue decided was whether a state law imposing civil service systems on cities could escape the prohibition against legislative amendment of city charters, Oregon Constitution, article XI, section 2,6 if the law applied to many or all cities. As the court stated the point of the decision,
we now expressly hold that the legislative assembly does not have the authority to enact a law relating to city government even though it is of general applicability to all cities in the state unless the subject matter of the enactment is of general concern to the state as a whole,
that is to say, that it is a matter of more than local concern to each of the municipalities purported to be regulated by the enactment. 231 Or at 479 (emphasis added).
The construction standards at issue here regulate builders, not city governments. The statute contemplates but does not require that municipal officials will administer the state codes; if the municipality chooses not to do so, the state will do so through agencies of its own.
As stated in City of La Grande v. Public Employes Retirement Board, 281 Or 137, 576 P2d 1204 (1978), decided today, this section and its companion “home rule” amendment, article IV, section 1(5), do not purport to allocate areas of substantive policy, such as building codes, between the levels of government. It is undisputed that standards for building construction are within the state‘s plenary power to legislate and also that they are not intrinsically beyond municipal authority. When the validity of a local ordinance is at issue, as in this case, the first question is whether the ordinance is properly enacted within the powers of the city under its charter or a statute.7 The state does not challenge the Troutdale ordinance in this respect. Rather, the state claims that the city‘s “double wall” requirement is “in conflict with” or “contrary to” the state‘s building code. The claim is not that buildings complying with the ordinance would violate the state‘s regulations, but that the legislature has excluded regulations other than the state‘s.
On this issue the statutory provisions, taken as a whole, leave room for different conclusions. For
The state building code shall be applicable and uniform throughout this state and in all municipalities therein, and no municipality shall enact or enforce any ordinance, rule or regulation in conflict therewith.
Again, it is undisputed that this section requires construction throughout the state to comply with the state code. But the state interprets the words “in conflict therewith” to include “in addition thereto” while the city argues that they mean only “incompatible with” and do not exclude additional requirements. A point favoring the state‘s view is that the statute provides a procedure for amending a state code to meet local conditions.
As stated in City of La Grande, supra:
It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent. [Citing cases.] 281 Or at 148-49.
Reversed.
TONGUE, J., specially concurring.
I agree with the result reached by the majority opinion, but strongly disagree with its reasoning in reaching that result. More specifically, I agree with the holding by the majority that there is no “conflict” between the state building code and the city building code, but I disagree with the implicit, if not express, holding by the majority that this result can only be reached because the state did not “unambiguously express” an intention that the construction standards provided by the state building code be “exclusive” construction standards (rather than “minimum” standards), and that if such an intent had been “unambiguously expressed” it would have been “beyond the power of local communities to provide additional safeguards for themselves.”
This result follows, according to the majority, from its opinion in City of LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204 (1978), decided today, in which the majority held that the “home rule” amendments of the Oregon Constitution, Art XI, § 2 and Art IV, § 1(5), “do not purport to allocate areas of substantive policy [such as building codes] between the levels of government.” The majority also holds that this result is
In City of LaGrande/Astoria v. PERB, supra, the majority of this court held that:
“* * * [A] general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community‘s freedom to choose its own political form. * * *”
For reasons stated in my dissenting opinion in that case, such a holding is not consistent with, but is contrary, to the previous holding by this court in State ex rel Heinig v. City of Milwaukie et al, supra. Such a rule, as now applied by the majority to hold that “standards for building construction are within the state‘s plenary power to legislate,” means that the Oregon legislature has power to require that all new homes in Oregon must have single wall construction even though the voters of a home-rule city in an area exposed to extreme cold or high winds may prefer to require double wall construction or to permit one who builds a home to decide for himself to use double wall construction. To me, it also follows that the Oregon legislature has power to require all new homes to be painted green, despite the fact that the citizens in a home-rule city may vote to permit a free choice of colors for all new homes and that cities can enforce local building codes with different requirements only by the grace of the Oregon legislature.
Once it is recognized that the reasoning adopted by the majority opinion compels such a result, it appears
“That purpose, stated broadly, was to make operative the concept that the closer those who make and execute the laws are to the citizens they represent the better are those citizens represented and governed in accordance with democratic ideals. That objective would not be served if we should decide that the legislative assembly pre-empts the field each time it makes a statute applicable to all cities alike.”
As also held in Heinig (at 488):
“* * * Each case requires a weighing of the state‘s interest against the interest of the municipality. In some instances the need for uniformity, or the benefit of a widespread application of the law, or the recognition that the matter dealt with is interrelated with other functions of the state and similar considerations will require that the statute have preference over the charter; on the other hand the charter will prevail when the advantages of local autonomy are paramount.”
In my opinion, to hold, as the majority would hold, that the Oregon legislature has the power to require that all new homes must have single wall construction, or be painted green, is to hold that the Oregon legislature can intrude into areas of “substantive policy” in which the interests of the state are clearly outweighed by “the advantages of local autonomy” and that the Oregon courts are powerless to protect against such intrusions.
For these reasons I cannot agree with the basic reasoning upon which the majority would rest its decision, despite the fact that I agree that in this case there is no conflict between the city ordinance and the state statute in its present form and that, as a result, the city ordinance is a valid ordinance at the present time.
Howell and Bryson, JJ, join in this specially concurring opinion.