State ex rel. Stone v. Andresen

| Or. | Feb 5, 1924

McBRIDE, C. J.

The decision of this question involves a consideration of Section la of Article IY of our Constitution. That portion of said section which bears upon the present controversy 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.”

Under the provisions of this section cities and towns had unlimited authority to provide the manner and time of holding elections in respect to the adoption of charters or amendments to charters: State ex rel. v. Port of Astoria, 79 Or. 1" court="Or." date_filed="1916-01-11" href="https://app.midpage.ai/document/state-v-port-of-astoria-6905146?utm_source=webapp" opinion_id="6905146">79 Or. 1, 19 (154 Pac. 399).

Subsequent to the foregoing decision Section 14a of Article II of the Constitution was adopted, which reads as follows:

“§ 14a. Time of Holding Elections in Incorporated Cities and Towns. Incorporated cities and towns shall hold their nominating and regular elections for their several elective officers at the same time that the primary and general biennial elections for state and county officers are held, and the election, precincts and officers shall be the same for all elections held at the same time. All provisions of the charters and ordinances of incorporated cities and towns pertaining to the holding of elections shall continue in full force and effect except so far as they relate to the time of holding such elections. Every officer who, at the time of the adoption of this amendment, is the duly qualified incumbent of an elective office of an incorporated city or town shall hold his office for the term for which he was elected and until his successor is elected and qualified. The legislature, and cities and towns, shall enact such supplementary legislation as may be necessary to carry the provisions of this amendment into effect.”

(We italicize certain portions of the section which we consider relevant to the present decision.)

It will be seen, as shown, that Section 14a of Article II, by its very tenor, authorized the legislature to intervene in city elections only to the extent of prescribing the time of holding such elections. Beyond that, and perhaps to the extent of securing orderly and inexpensive procedure, it left cities and towns in the enjoyment of all the privileges guaranteed by Section la of Article IY of the Constitution.

The act of 1919 (Chapter 283, General Laws of Oregon for 1919) could rise no higher than its source, and by its title is limited to carrying out the purposes of Section 14a of Article II. That part of the title material here is as follows:

, “An act to provide for carrying into effect the provisions of Section 14a of Article II of the Constitution of the State of Oregon relating to incorporated cities and towns holding their nominating and regular elections at the same time that primary and general elections for state and county officers are held; to regulate the conduct of such elections; * * ” (The italics are the writer’s.)

We should not lightly presume that the legislature intended to go beyond the Constitution and regulate the time and manner in which other elections than those regularly recurring should be held. Presuming a constitutional intent, we should rather hold that the provisions of the statute invoked by relator were inapplicable to the case here presented, than in themselves unconstitutional.

A regular election is an election recurring at stated times, fixed by law; while a special election is one arising from some, exigency outside the usual routine. There is nowhere in the Constitution any inhibition against the constituted authority calling such an election and prescribing the time and manner of conducting it. We find nothing in the authorities from this state cited by counsel militating against this doctrine. Straw v. Harris, 54 Or. 424" court="Or." date_filed="1909-08-24" href="https://app.midpage.ai/document/straw-v-harris-6901289?utm_source=webapp" opinion_id="6901289">54 Or. 424 (103 Pac. 777), goes only to the extent that the legislature may, by a general law, provide for or permit the organization, by the residents of a particular locality, of a municipal corporation of the character of a port. West Linn v. Tufts, 75 Or. 304 (146 Pac. 986) only holds, in effect, that an incorporated town cannot legislate extramurally, and legislate so as to deprive the county and the general public of road taxes imposed upon residents of a city for the benefit of the whole public. They do not apply here.

We hold that the election held on December 18, 1923, was in all respects legal, and that the defendants are the duly elected commissioners of Oregon City and are entitled to act as such, and that judgment to that effect should be here entered.

Judgment eor Deeendants.