Lovejoy v. Portland

188 P. 207, 95 Or. 459, 1920 Ore. LEXIS 53

• Court: Oregon Supreme Court
• Decided: March 9, 1920
• Status: Published

Opinion

HARRIS, J.

1, 2. Like most of the State Constitutions, our organic law commands that—

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title”: Article IV, Section 20.

The defendant contends that the title of Chapter 203, Laws of 1917, is not sufficient, within the meaning of Article IV, Section 20, of the state Constitution, to include and sustain subdivision 6 of Section 3d of the act. This section of the Constitution was designed to do away with the several abuses, among which was the practice of inserting in one bill two or more unrelated provisions so that those favoring one provision could be compelled, in order to secure its adoption, to combine with those favoring another provision, and by this process of log-rolling the adoption of both provisions could be accomplished, when neither, if standing alone, could succeed on its own merits. Another abuse which developed in legislative bodies was the practice of concealing from the members of the legislature the true nature of the proposed law by giving it a false and misleading title, and to prevent surreptitious legislation in this manner is one of the objects of the Constitution. These and similar abuses inspired the adoption of Article IV, Section 20: Northern Counties Trust v. Sears, 30 Or. 388, 400 (41 Pac. 931, 35 L. R. A. 188); Moor-Mansfield Construction Co. v. Indianapolis R. Co., 179 Ind. 356 (101 N. E. 296, Ann. Cas. 1915D, 917, 44 L. R. A. (N. S.) 816); Johnson v. Harrison, 47 Minn. 575 (50 N. W. 923, 28 Am. St. Rep. 382); County Commissioners v. Pocomoke Bridge Co., 109 (71 Atl. 462, 16 Ann. Cas. 874). While Article IV, Section 20, is mandatory and failure to comply with it renders a statute void, yet this section of the Constitution should be reasonably and liberally construed to sustain legislation not within the mischief aimed against: State v. Shaw, 22 Or. 287, 288 (29 Pac. 1028); 25 R. C. L. 85. Every legislative act is presumed to be constitutional, and the conflict between a statute and the Constitution should be palpable before the legislative enactment is held to be void on the ground that it embraces more than one subject or because the subject is not sufficiently expressed in the title: Pacific Elevator Co. v. Portland, 65 Or. 349, 384 (133 Pac. 72, 46 L. R. A. (N. S.) 363).

3. It is the “subject” of the act, and not “matters properly connected therewith,” that must be expressed in the title, for the language of the Constitution is, “which subject shall be expressed in the title”: Eastman v. Jennings-McRae Logging Co., 69 Or. 1, 10 (138 Pac. 216, Ann. Cas. 1916A, 185); Parks v. State, 159 Ind. 211 (64 N. E. 862, 59 L. R. A. 190). The subject of the law is the matter to which the measure relates and with which it deals: 25 R. C. L. 842. The term ‘‘ subject” is to be given a broad and extensive meaning so as to allow the legislature full scope to include in one act all matters having a logical or natural connection. The subject may be as comprehensive as the legislature chooses to make it, provided it constituted, in the constitutional sense, a single subject and not several, for the Constitution does not contain any limitation on the comprehensiveness of the subject: State v. Shaw, 22 Or. 287 (29 Pac. 1028).

The word “subject” includes the chief thing to which the statute relates, and the words “matters properly connected therewith” include every matter germane to and having a natural connection with the general subject of the act; or as said in State v. Shaw, 22 Or. 289 (29 Pac. 1029):

“If all the provisions of the law relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not be held unconstitutional”: Simon v. Northup, 27 Or. 487 (40 Pac. 560, 30 L. R. A. 171); Northern Counties Trust v. Sears, 30 Or. 388 (41 Pac. 931, 35 L. R. A. 188); Pacific Elevator Co. v. Portland, 65 Or. 349 (133 Pac. 72, 46 L. R. A. (N. S.) 363).

4. The office of the title is to inform the members of the legislature of the subject of the proposed legislation, but the details must be found in the body of the measure. If the subject of the enactment is so expressed in the title as to give reasonable notice of the contents of the law, it is sufficient. If a measure has but one general subject which is fairly expressed in its title, it will be held to be a compliance with the Constitution. The general object and purpose of Chapter 203, Laws of 1917, is to regulate and supervise insurance, other than State Industrial Accident Insurance; and its general object is fairly stated in the title of the act. "Whatever means may tend directly or indirectly to accomplish this object may properly be included in the act. The payment of license taxes is undoubtedly a means for the accomplishment of the object; and, within every rule of construction applied by the courts, the provision which prohibits cities and towns from imposing additional license taxes must be treated as properly connected with the subject of state regulation and supervision of insurance, for it is manifestly designed to aid state regulation and supervision: State v. Shaw, 22 Or. 287 (29 Pac. 1028); Eastman v. Jennings-McRae Logging Co., 69 Or. 1, 10 (138 Pac. , Ann. Cas. 1916A, 185); State v. Applegarth, 81 Md. 293 (31 Atl. 961, 28 L. R. A. 812). The title of Chapter 203, Laws of 1917, is sufficient to include subdivision 6, Section 3d.

5, 6. The defendant argues that subdivision 6, Section 3d, is void because its contravenes Article XI, Section 2, of the state Constitution. This argument proceeds upon the theory that the Constitution confers upon cities and towns power to exercise the whole sum of municipal legislation, and at the same time prohibits the legislature from entering into the field of municipal legislation either by a special or by a general law. The defendant says that Ordinance No. 32,925 is pure municipal legislation, and that therefore the state law must give way to the city law. It is obvious that the ordinance and subdivision 6 of Section 3d of the state law are in irreconcilable conflict; both cannot stand; only one, and not both, can be supreme; one must yield to the other. Chapter 203, Laws of 1917, is not a special law applicable only to a single city, but it is a general law operating throughout the entire state; and hence whether the ordinance can survive or must succumb to the state law depends upon whether the authority of the city is superior to that of the legislature. The contention of the defendant is simply an attempt to revive the heretofore much debated but now settled question of whether or not the legislature is prohibited by Article XI, Section 2, from enacting general laws concerning cities and towns.

Article IV, Section la, and the amendment of Article XI, Section 2, of the state Constitution, were adopted in 1906. The language employed in these companion sections from the very beginning provoked much discussion and produced a contrariety of views among the members of the legal profession; and, indeed, as pointed out in State v. Port of Astoria, 79 Or. 1, 18 (154 Pac. 399), even the courts, as evidenced by the precedents there collected and classified, during the first decade after the adoption of the amendments did not follow an unswei’ving course when considering the right of the legislature to enact general laws affecting the intramural powers of cities.

Although during that period there was a lack of complete harmony among the precedents, yet the most of them held in plain and unmistakable language that the legislature was not prohibited from passing general laws concerning cities and towns, while only a few of them held that the legislature was prohibited from passing general laws regulating intramural authority. Among the precedents belonging to the larger class are: Straw v. Harris, 54 Or. 424 (103 Pac. 777); Kiernan v. Portland, 57 Or. 454 (111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339); State ex rel. v. Port of Tillamook, 62 Or. 332 (124 Pac. 637, Ann. Cas. 1914C, 483); Churchill v. Grants Pass, 70 Or. 283 (141 Pac. 184); State ex inf. v. Gilbert, 66 Or. 434 (134 Pac. 1038); McMinnville v. Howenstine, 56 Or. 451 (109 Pac. 81, Ann. Cas. 1912C, 193). We cannot misunderstand the mind of the court when we read in Straw v. Harris:

“This [revision, amendment, or repeal of charters], under the Constitution as it now stands, may he done by the legislature through general laws only.”

In Kiernan v. Portland, it is said:

“Under all the rules of construction, this exception [that no special laws creating or affecting the municipalities shall be enacted by the legislature] reserves to the legislative department the right, whether by the people directly through the initiative, or indirectly through the legislature, to enact general laws upon the subject, making it clear that the inhibition in the next sentence has reference to special laws.”

The following excerpt is taken from the opinion in State ex rel. v. Port of Tillamook:

“Such municipal corporations are always subject to the control and regulation of the lawmakers of the State in the manner directed by the Constitution: City of McMinnville v. Howenstine, 56 Or. 451, 456 (109 Pac. 81, Ann. Cas. 1912C, 193). While these public corporations are capable of adopting and amending their charter, they still continue to be agencies of the state. A general control is left in the legislative assembly.”

We quote from Ghurchill v. Grants Pass:

“This delegation of rights as to local self-government does not alter the relation of municipal corporations to the state, but leaves them, as they were before, mere agencies of the state which may by general laws control all its municipalities even to the extent of amending their charters. ’ ’

The following language appears in State ex inf. v. Gilbert:

“The inhibition of that section [Article XI, Section 2 of the Constitution] is directed solely against action by the legislature affecting only a particular municipality, city, or town.”

In McMinnville v. Howenstine, this court said:

“In other words, the legislative assembly, as one of the state’s law-making branches, may by general laws control and regulate all of its municipalities, while the people, through the direct method provided, may enact either general or special laws for this purpose.”

Although in one of these cases there is a principal and a specially concurring opinion, both of which reach the same conclusion in which the other members of the court concur, yet in not one of these cases was there a dissenting voice. In each instance all the members of the court agreed. Of the three cases classified in State v. Port of Astoria as belonging to the minority, Kalich v. Knapp, 73 Or. 558 (142 Pac. 594, 145 Pac. 22, Ann. Cas. 1916E, 1051), is the one most frequently referred to and constitutes the main reliance of the defendant. In each of these cases one or more members of the court raised a dissenting voice, and in not one of them did all members of the court concur. It is a noteworthy fact that in each of the three cases listed with the minority one or more members of the court dissented, while in each of the six cases belonging to the majority all the members of the court concurred in the conclusion reached, and, with the exception of one case’where two members followed a different course of reasoning, they also agreed upon the reasoning employed. In State v. Port of Astoria no attempt was made to determine whether Article XI, Section' 2, prohibited the legislature from enacting general laws affecting cities and towns, although attention was directed to the discordancy found in the precedents.

When the case of Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498), was presented for decision this court entered into the investigation of the questions there involved with a full realization of the discordant rulings made in prior adjudications, and with the purpose of finally and definitely settling, if possible, the controverted questions arising out of Article IV, Section la, and Article XI, Section 2, of the state Constitution. Every member of the court gave to every one of these questions his best thought and most deliberate judgment, with the result that upon every question discussed all the members of the court agreed not only as to the conclusions, but also as to the reasoning employed. The rule unanimously adopted in Bose v. Port of Portland is decisive of the question here presented, for upon the authority of that precedent the legislature had ample power to enact Chapter 203, Laws of 1917, including subdivision 6 of Section 3d.

7. The defendant argues, however, that all that was said in Rose v. Port of Portland as to the power of the legislature to enact general laws concerning cities and towns was ohiter dictum, for the reason that it was decided that a port was not a municipality within the meaning of Article XI, Section 2. Counsel for the Port of Portland contended that this section of the Constitution prohibited the legislature not only from passing special laws but also from enacting- general laws concerning- any “municipality, city or town”; that a port was “a municipality” within the meaning of that term as used in the second sentence of the section; and that therefore all ports, including- the Port of Portland, were freed from the control of the legislature and empowered to amend their own charters or acts of incorporation. When deciding that case, this court held, it is true, that the word “municipality” as used in the second sentence of Article XI, Section 2, did not include a port; but it is also true that the court prosecuted to the very end its examination of the contention made by the Port of Portland, by assuming, for the sake of the argument, that the port was correct in its contention that it was a “municipality” within the meaning of that section of the Constitution. Proceeding on this assumption the court then answered the argument of the Port of Portland, by holding that Article XI, Section 2, did not prohibit the legislature from enacting- general laws concerning any of the corporate bodies embraced by that section of the Constitution. The contention of the Port of Portland presented to the court for its consideration: First, whether a port was a “municipality” within the purview of Article XI, Section 2; and, second, whether that section prohibited the legislature from enacting general laws affecting corporate bodies embraced within it. The decision of one question did not render the decision of the other obiter dictum. The issues which the court was compelled to decide in Rose v. Port of Portland, in order to adjudicate the litigation, involved an examination and decision of the question which the defendant is here attempting to raise, and what the court there said when deciding that question is stare decisis, even under a strict construction and the most exact application of that doctrine, i The conclusion unanimously agreed upon and announced in Rose v. Port of Portland was again followed, without a single dissenting voice, in Colby v. City of Medford, 85 Or. 485, 534 (167 Pac. 487, 502), for it is there said:

“The Bancroft Bonding Act was passed by the legislative assembly, and it is a statute of state-wide application, for it embraces every city and town in the state. The amendments found in Article IV, Section la, and Article XI, Section 2, of the Constitution, have not shorn the legislature of power to enact general laws concerning cities and towns: Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498). Although passed prior to these two constitutional amendments, the Bancroft Bonding Act possesses just as much validity now as it did when originally enacted, for it governs, controls, and dominates every incorporated city and town in Oregon. # * The city is utterly powerless to enact and enforce municipal legislation which overrides this state law.”

The most casual reading of the opinion rendered in Colby v. City of Medford will demonstrate that the court confined its discussion to the issues raised by the pleadings and to the questions involved in those issues. Again, and for the third consecutive time the court unanimously approved the rule that the legislature was not prevented from enacting general laws affecting cities and towns, for in Portland v. Public Service Commission, 89 Or. 325 (173 Pac. 1178), the court said, when speaking of the power to revoke certain authority previously given by the state to the city:

“The legislature in delegating this authority to the city by the 1903 charter did not, nor could it, undertake to control the future legitimate exercise of the lawmaking power. The authority to delegate involves the power to revoke. That this may not be done in this instance by special law enacted by the legislative assembly amounting to a direct amendment of the Portland charter is granted; but that a general law of paramount authority over all municipal charters constitutionally may be enacted by the legislative assembly is taught in Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498).”

The last three announcements of this court ought to be regarded as decisive of the question attempted to be presented here, especially since two of them were decided by the court sitting in banc and only one was heard by a single department, and in none of them was there a single dissenting voice.

So thorough and complete is Chapter 203, Laws of 1917, that it may with propriety be called the Insurance Code. The purpose of this legislation is to provide for the entire state a uniform and complete system of regulation and supervision of the insurance business. Nearly all, if not all, the states have enacted legislation for the regulation and supervision of insurance business done within their respective borders. In Oregon the insurance business is conducted principally by foreign corporations, and this state has the supreme authority and the exclusive control over the admission of these corporations to do business here and the manner in which they may be permitted to transact business. Probably every company admitted to do business here not only has representatives in Portland, but also has agents in other places and does business throughout the entire state. The insurance business is state-wide in its scope, and it is a proper subject for state-wide regulation. It is apparent that, among other purposes, the Insurance Code was adopted to encourage the admission of sound and solvent companies so that adequate service may be given at reasonable rates; to bring about the appointment as agents of only those persons who possess the requisite qualifications and to compel them to perform their duties faithfully; to supervise rates and to place the making of rates upon a uniform and scientific basis; and to derive such revenue from the business as will pay the expense of supervision by the state without excluding desirable companies or agents or raising rates or otherwise interfering with the general purposes of the law.

Evidently, the legislature concluded that local taxation in the form of licenses might defeat some or all of these purposes. The legislature may have reasoned that, if one city may impose a license fee, all may do so; and that such tax in one city or town or the aggregate of such taxes in all cities and towns might become prohibitive and drive out all companies or all but the strongest and best established, or prevent the entrance of new and desirable companies into the state. The legislature may have reasoned further that the natural tendency of municipal license fees is to raise rates both directly and through reduction of competition, and that it would be impossible to apportion such increases to the various cities and towns in proportion to the licenses charged therein. The legislature may have concluded that the entire state would suffer on account of burdens imposed by certain cities, and that the collection by the state of revenue sufficient for its purposes might be defeated if any considerable number of cities should impose heavy licenses.

The defendant concedes “that certain general laws enacted by the legislature may be valid, although they have the effect of amending or repealing certain provisions of municipal charters,” if they “pertain to matters which are of a general character as distinguished from matters which are purely local and municipal.” Obviously, the Insurance Code pertains “to matters which are of a general character as distinguished from matters which are purely local and municipal”; and consequently even though Chapter 203, Laws of 1917, is to be tested by the rule contended for by the defendant, the statute must be held to be constitutional.

The decree of the Circuit Court is affirmed.

Affirmed.

Benson, J., took no part in the consideration of this case.