164 P. 958 | Or. | 1917
delivered the opinion of the court.
This action was instituted in our court in the name of the state upon the relation of the proper district attorney to determine the respective rights of the defendants to act as and discharge the duties of mayor, recorder, and couneilmen of Bay City, Oregon, a municipal corporation. The information herein was induced by and predicated upon the decision rendered in the case of Provoost v. Cone, 83 Or. 522 (162 Pac. 1059), where it was held that ordinance No. 3 of that municipality, adopted October 17, 1910, and ratified at an election held December 20th of that year, purporting to amend and substitute another charter in lieu of the original organic act of the city, was ineffectual for that purpose. The question there involved was the validity of a municipal tax attempted to be levied pursuant to the provisions of the proposed amendment. In that suit the only proceedings of the council that
“Whereas, some question has arisen concerning the regularity, sufficiency, and legality of the adoption of the present charter of Bay City, submitted to the legal voters of said city on the 20th day of December, 1910; and, whereas, an issue of bonds for the purpose of providing public docks for said city has been attempted to be authorized under the provisions thereof; and, whereas, owing to the irregularities and illegalities connected with the passage of the same, it is impossible to sell and dispose of said bonds; and, whereas, the charter of said municipality imposes upon its officials the duty of providing wharves for said city, and for said purpose the city officials have attempted to sell and dispose of bonds therefor, which it has been unable to do owing to the above irregularities and illegalities ; and, whereas, it is necessary that a new charter be adopted in the manner provided by law at as early a date as possible , and in order proposed so to do it is necessary to enact this ordinance, now, therefore, an emergency is hereby declared to exist and this ordinance shall immediately go into force and effect upon its adoption and approval.”
Pursuant to the provisions of that enactment the council on June 2, 1914, in the absence of one member
The answer to the information sets forth copies of the entire proceedings whereby the new charter was undertaken to be substituted for the original organic act and all attempted amendments thereto. It is deemed unnecessary to advert particularly to the form and manner of inaugurating or consummating the ultimate alterations referred to, a careful examination
The defendants herein are, therefore, the duly chosen, legally qualified, and acting officers of Bay City, Oregon, under and pursuant to the provisions of its new charter, which went into effect June 26, 1914, when so proclaimed by the mayor, and each defendant is entitled to the respective office so held by him. It follows that this action should be dismissed, and it is so ordered. . Dismissed.