Carriker v. Lake County

171 P. 407, 89 Or. 240, 1918 Ore. LEXIS 114

Opinions

HARRIS, J. —

1. Article IX, Section 3, of the state Constitution provides that “no tax shall be levied except in pursuance of law.” Unless the jackrabbit bounty tax was levied “in pursuance of law” it would contravene the Constitution and therefore would be invalid. There is no law authorizing the levy of the tax in question unless it can be said that the measure voted upon by the people of Lake County became a law when a majority of the voters by their ballots registered their approval of the measure on election day. The validity of the the measure depends upon whether the voters had power to enact it into a law for Lake County. No act has ever been passed by the legislature or by the people of the whole state granting unto the voters of a county the right to enact a jackrabbit bounty law for themselves. It is argued by the defendants that Article IV, Section la, of the state Constitution of itself, without the aid of an enabling act passed by the legislature or by the people of the whole state in the exercise of the initiative, grants to the people of a county the power to pass a law for their county. The instant case is controlled by Rose v. Port of Portland, 82 Or. 541, 556, 557 (162 Pac. 498), where we held that

“both sections (Art. IV, Section la, and Art. II, Section 2, of the state Constitution) recognize the necessity of a charter as the measure of the legislative power to be exercised by corporations and both sections contemplate that no local subdivision of government except' cities and towns can appropriate legislative power unto itself”; and that “no subdivision of government like a port or district can exercise power unless that power is first granted by some lawmakers authorized to legislate that power to the municipality or district.”

Although the municipality in Rose v. Port of Portland was a port and the municipality in the instant case is a county, nevertheless the legal principle involved is identical in both cases. The opinion in Rose v. Port of Portland was the unanimous opinion of this court and represented the careful and deliberate judgment of all its members; and therefore for the reasons stated in that opinion and on the authority of that precedent and of Barber v. Johnson, 86 Or. 390 (167 Pac. 800), we hold that the voters of Lake County were without power to authorize the tax and that the jackrabbit bounty measure is void. The demurrer to the complaint was properly overruled and the decree is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Moore concur.