134 P. 1038 | Or. | 1913
delivered the opinion of the court.
In 1893 the legislative assembly passed an act (Laws 1893, p. 119), general in its terms, providing not only for the incorporation of new towns and cities, hut also for the consolidation of two or more contiguous, municipal corporations, as well as for the enlargement of the boundaries of municipal corporations, and enacting a general charter for cities and towns organized by virtue of the act. One section of that law, being Section 3210, L. O. L., reads as follows:
“Two or more contiguous municipal corporations may become consolidated into one corporation after proceedings had as required in this section. The council or other legislative body of either of such corporations shall, upon receiving a petition therefor signed by not less than one fifth of the qualified electors of each of
Subsequently, Article XI, Section 2, of the Constitution, was amended to read as follows, so far as appli
This provision of the fundamental law does not in any way infringe upon the right of the legislature to make general laws for the formation of corporations. The inhibition of that section is directed solely against action by the legislature affecting only a particular municipality, city, or town. As stated by Mr. Justice McBride, in Thurber v. McMinnville, 63 Or. 410 (128 Pac. 43), the statute already mentioned had not been repealed when these proceedings happened, nor did the constitutional provision disturb that legislative enactment. It was then a general law establishing the procedure for the formation of municipal corporations, however it may be affected by the subsequent act of February 26, 1913 (Laws 1913, p. 689), Section 11 of which purports to repeal the provisions of the act of 1893, relating to the organization and consolidation of cities and towns without mentioning repeal in the title of the new law. There were two classes of ingredients available in their construction under that statute. The one was new territory which had never been subjected to municipal government; the other, contiguous municipalities already established. Given such conditions and such components under a general law, a new corporation could be formed in the manner prescribed and in force at the time. It is conceded that the legislative directions mentioned have been strictly followed, and
The plaintiff cited McKeon v. City of Portland, 61 Or. 385 (122 Pac. 291). In that case the City of Portland, by virtue of the particular provisions of its charter, attempted to amalgamate the adjoining city of St. Johns. No official action was taken by the latter municipality. The procedure was inaugurated solely upon the petition of some individual residents of St. Johns, and by virtue of the provisions of the special act incorporating the City of Portland. It was an effort of Portland to absorb St. Johns under the charter of the former in the absence of any motion or consent of the latter. There was no concerted action between the two municipalities as such, as required by Section 3210, L. O. L., so that the Portland-St. Johns case is clearly distinguishable from the present one.
. The question was raised incidentally also in this case about the legality of the acquisition by the town of Seaside prior to consolidation of certain territory adjacent to it, but which had never been included in any municipality. It appears, however, that the procedure approved by this court in the case of McBee v. Town of Springfield, 58 Or. 459 (114 Pac. 637), based upon the act of 1893, was followed in this instance, so that a vote was taken not only in the town of Seaside, but also in the outlying territory sought to be incorporated in the boundaries of the municipality; the election resulting in a majority being cast in both instances in favor of the annexation of the territory.
The result is that the judgment of the Circuit Court must be affirmed.
Aeeirmed.
