State v. Swigert,

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| Or. | Jun 13, 1911

*135Opinion by

Mr. Chief Justice Eakin.

1. On June 4, 1906, Section 2 of Article XI, of the constitution was amended to read:

“Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the State of Oregon.”

Prior to this amendment it was in the power of the legislature, by special act, to amend the charter of the port as it saw fit, as to the number of commissioners, their term of office, and the time and manner of their election, but such changes could have been accomplished only by legislative act. The legislature could not have appointed commissioners at a joint session of the two houses except to fill vacancies, which authority it still has as it is the appointing power named in the charter. If an act had been passed by the legislature fixing the duration of the term of office and appointing new commissioners, or authorizing the Governor to appoint them, its effect would have been to amend or repeal the former provisions of the charter in those particulars, as fully as section 9 of the charter of 1891 was amended by the act of 1899, or that amendment again amended in sections 25 and 28 in the charter of 1901, and again in 1903. But by the amendment of Section 2, Article XI, of the constitution, the power to amend or repeal the charter was taken from the legislature. The plaintiffs seek to avoid the effect of that amendment, contending that the act of 1911, referred to, is a general law, and therefore not within the inhibition of the constitutional amendment; that the clause of section 1 thereof, above quoted, included all ports which contain a population of over 100,000 as shown by the last federal census, makes it general as to *136all ports that are now or hereafter may come within that classification. On the other hand, defendants urge (1) that such a classification confines its application, and was intended to apply to the Port of Portland; and (2) that the classification attempted thereby is arbitrary and not based on any real distinction, and therefore is special and with this latter view we agree.

The provision of the act that “every municipal * * port which contains within its boundaries a population of more than 100,000 as shown by the last federal census” refers to the last census before the enactment. It means a present condition as fixing the class that may come within the law, and cannot be construed to include ports thereafter created or that may subsequently acquire that population. It includes only such ports as at that time had the necessary population of which there was but one —the Port of Portland. This question was well considered in Ladd v. Holmes, 40 Or. 167" court="Or." date_filed="1901-11-25" href="https://app.midpage.ai/document/ladd-v-holmes-6898771?utm_source=webapp" opinion_id="6898771">40 Or. 167, 173 (66 Pac. 714, 716: 91 Am. St. Rep. 457) in which Mr. Justice WolverTON sayg:

“A statute, however, which is plainly intended to affect a particular person or thing, or to become operative in a particular place or locality and looks to no broader or enlarged application, may be aptly characterized as special and local and falls within the inhibition. * * It may be stated as a positive rule of general. application that all acts or parts of acts attempting to create a classification of cities by population which are confined in their operation to a state of facts existing at the date of their adoption or any particular time, or which by any device or subterfuge exclude other cities from ever coming within their purview, or based upon any classification which in relation to the subject concerned is purely illusory, or founded upon unreasonable * * distinctions,” are special and local. The opinion states the rule very clearly and we believe correctly. Counsel for plaintiff suggest that *137so far as the opinion holds that the reference therein to the last federal census in the present tense would mean unmistakably the census of 1900 is clearly dictum, but we do not so consider it. The question in that case was whether the classification “as shown by the last state or federal census” was comprehensive enough to make it a general law, and the opinion first ascertains the rule for the purpose of applying it to the facts in the case before it. But, if considered as only dictum, yet we find that it is a correct statement of the law, and is fully supported by the argument of the opinion and authorities cited, and is directly applicable in this case. The classification of the statute here considered confines its operation to a state of facts existing at the date of its adoption, and excludes all other ports from ever coming within its purview, and is therefore special.

2. Furthermore, the classification must be upon some real and actual distinction as a justification for it. We conceive that no distinction exists for a different rule in ports of 100,000 population than for those with a lesser population as to the limitation of the term of office or time or manner of election. No reason is named in the act, nor is any suggested by counsel. If none exists, then the classification is illusory, and without existence in fact and the law is special. There must be a difference in the situation, circumstances, and requirements of the ports as the ground for the classification, and not special legislation under that guise: Richards v. Willard, 176 Pa. 213" court="Pa." date_filed="1896-07-15" href="https://app.midpage.ai/document/lloyd-v-smith-6243770?utm_source=webapp" opinion_id="6243770">176 Pa. 213 (35 A. 114" court="Pa." date_filed="1896-07-15" href="https://app.midpage.ai/document/richards-v-willard-6243769?utm_source=webapp" opinion_id="6243769">35 Atl. 114); Blankenburg v. Black, 200 Pa. 629 (50 Atl. 198). And we conclude that the classification is an arbitrary one, and that the law in fact applies only to the Port of Portland, and exempts from its provisions all other ports.

The act here challenged is an attempt to amend sections 25 and 28 of the charter of the Port of Portland by changing the duration of the term of office of the com*138missioners and the appointing power, and the time and manner of their election in violation of Section 2, Article XI, of the constitution. It Is also objectionable because the attempted classification of ports affected by its provisions is arbitrary and illusory, and therefore the" act is void, and the relators are not the commissioners of the Port of Portland.

The demurrer is sustained and the complaint dismissed.

Dismissed.