Schubel v. Olcott

120 P. 375, 60 Or. 503, 1912 Ore. LEXIS 10

• Court: Oregon Supreme Court
• Decided: January 23, 1912
• Status: Published

Opinions

Mr. Justice Bean

delivered the opinion of the court.

Mr. Justice Buenett dissenting. Mr. Justice McBeide dissenting in part.

This' is a proceeding in mandamus, instituted in this court under the provisions of Article VII, section 2, of the Constitution of Oregon, adopted November 8, 1910, for the purpose of requiring the defendant, as Secretary of State, to file an initiative petition for a local law for the county of Clackamas to exempt from taxation all trades, labor, professions, business, occupations, personal property, and improvements on, in, and under land, and to require that all taxes levied and collected within said Clackamas County shall be levied on and collected from the assessed values of land and other resources, separate from the improvements thereon, and on and from the assessed value of public service corporation franchises and rights of way.

The following facts are alleged: That said petition was prepared and circulated in compliance with an act of the legislature of 1907, entitled “An Act to provide for carrying into effect the initiative and referendum powers reserved bya the people in Section 1 and Section la. of Article IV of the Constitution of the State of Oregon on general, local, special, and municipal legislation; to regulate elections thereunder. * * ” Laws 1907, c. 226. That the petition was signed by 674 legally qualified voters of the county of Clackamas, more than the percentage required for that purpose. That the same was presented to defendant for filing, who, awaiting the opinion of the Attorney General relative to filing, receipted therefor, and thereafter refused to file such petition. That defendant, as Secretary of State, is the legal custodian of all such petitions as the one offered by plaintiff for filing, and is the official with whom the law provides that all initiative and referendum petitions appertaining to the State as a whole, or a district thereof, shall be filed. That, by virtue of said legislative act, plaintiff is entitled to have the petition filed according to the terms thereof. To the alternative writ of mandamus, defendant answered, in effect, that under the laws said petition should not be filed.

It is contended by the Attorney General and counsel for defendant that Article IX, Section la, of the Constitution of Oregon, is not self-executing; that counties are not municipalities, within the meaning of Article IV, Section la, of the constitution; and that the procedure indicated by Section 3470 et seq., L. O. L., does not apply to them.

The theory of plaintiff is that Article IV, Section la, confers upon counties the power to initiate county legislation; that the act of 1907 provides the machinery by which such right may be exercised; that Article IX, Section la, gives to counties the power to regulate taxation within their boundaries.

1. In order to consider the questions presented, we will refer to the portions of the amendments of the organic law of this State applicable thereto. The first, adopted by the people June 2, 1902, being .Article IV, Section 1, relating to legislative authority, style of bill, initiative and referendum, makes, among others, the following provisions :

“The legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum. * * Petitions and orders for the initiative and for the referendum shall be filed with Secretary of State, and in sumitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor.”

Article IV, Section la, adopted June 4, 1906, relating to the initiative and referendum on local, special, and municipal laws, and parts of laws, 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. Not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure by the initiative, in any city or town.”

Article IX, Section la, proposed by initiative petition and adopted by a majority of votes at the election November 8, 1910, provides as follows:

“No poll or head tax shall be levied or collected in Oregon. No bill regulating taxation or exemption throughout the State shall become a law until approved by the people of the State at a regular general election. None of the restrictions of the constitution shall apply to measures approved by the people declaring what shall be subject to taxation or exemption and how it shall be taxed or exempted whether proposed by the legislative assembly or by initiative petition; but the people of the several counties are hereby empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted.”

Article IV, Section la, and Article IX, Section la, of the constitution, are not self-executing in respect to counties, as they make no provisions regarding the manner of their enforcement. By the first of these, the initiative and referendum powers reserved by the people are further reserved to the legal voters of every municipality and district as to all local, special and municipal legislation of every character in their respective municipalities and districts. By the second, the people of the several counties are empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted. In Article IV, Section la, it is specifically provided that the manner of exercising such powers shall be prescribed by general laws, except as to cities and towns; neither section containing rules by means of which this right may be given the force of law as regards local legislation in counties. Cooley’s Constitutional Limitations (7 ed.) 121; Long v. City of Portland, 53 Or. 92, 96 (98 Pac. 149, 1111); Reeves v. Anson, 13 Wash. 17 (42 Pac. 625); Stevens v. Benson, 50 Or. 269 (91 Pac. 577). Hence we must look at the general laws of this State for the manner of executing these sections of the organic law.

2. Turning to the legislative enactment of 1907, being Section 3470 et seq., L. O. L., it appears that the legislature intended to and did make all the necessary rules for carrying into effect the initiative and referendum provisions of the constitution. The following legislative decrees affirm this in directing that, if the Secretary of State shall refuse to accept and file any petition for the initiative or for the referendum, any citizen may apply, within ten days after such refusal for a writ of mandamus to compel him to do so (Section 3474, L. O. L.) ; that when a measure shall be filed with the Secretary of State, to be referred to the people of the State, or of any county or district composed of one or more counties, either by the legislative assembly or by the referendum petition, and when any measure shall be proposed by initiative petition, the Secretary of State shall forthwith transmit to the Attorney General of the State a copy thereof, and within ten days thereafter the Attorney General shall provide and return to the Secretary of State a ballot title for such measure. Section 3475, L. O. L. An examination of Section 6 (Section 3476, L. O. L.) of the same act reveals that the reason of the legislative rule requiring the filing of an initiative petition with the Secretary of State, when only one county is interested in the measure, is to avoid confusion in the numbering of the initiative measures on the ballot.

It is urged that this act was passed prior to the amendment of the constitution contained in Article IX, Section la, and is not applicable thereto. Though the machinery for carrying this amendment into effect was created before the birth of the amendment, yet such machinery or provisions of the enabling act fit with almost exact nicety, and we do not think it necessary for the people or the legislature to re-enact the provisions of this law.

In Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153, 155), this court, speaking through Justice MOORE, in construing Article IV, Section la, said:

“The words ‘municipality’ and ‘district,’ as used in the clause of the amendment adverted to, are evidently expressions of equivalent import, for a district legally created from a designated part of the State and organized to promote the convenience of the public at large is a municipal corporation.”

3. A county is a municipal or quasi municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising the powers and discharging the duties of local government and the administration of public affairs conferred upon it by law. Words and Phrases, vol. 2, 1656; 11 Cyc. 342. A county is not, in a strict sense, a municipal corporation. In a certain sense, it comes within the rules and principles of law applicable to such corporations. Words and Phrases, vol. 2, 1656. Judge Dillon, in his work on Municipal Corporations, vol. 1 (5 ed.), on page 25, says:

“In general, all of our American cities, towns, and counties are public corporations, full or quasi. They are created by the legislature, and are invested with power to decide and control local and subordinate matters pertaining to their respective localities.”

In Straw v. Harris, 54 Or. 424, 437 (103 Pac. 777, 782), we find this language:

“Municipalities are but mere departmnets or agencies of the State, charged with the performance of duties for and on its behalf, and subject always to its control.”

See, also, Words and Phrases, 4622. On page 434 of 54 Or. (103 Pac. 781), in the same opinion (Straw v. Harris), Mr. Justice King, speaking for the court, says:

“To begin, let it be remembered that municipal corporations of the class under consideration do not come within those designated as counties, cities, or towns; and that it was intended that municipalities, other than those enumerated, might be created is obvious from the language used in Section 9 of the same article, namely: ‘No county, city, town, or other municipal corporation/ etc. The clause other ‘municipal corporation’ clearly implies and indicates that the framers understood and recognized that there may be corporations, other than those enumerated, of which we have school districts, irrigation districts, road districts, drainage districts, and ports. * *”

In Simon v. Northup, 27 Or. 487 (40 Pac. 560: 30 L. R. A. 171), a case construing the legislative enactment requiring Multnomah County to pay the bonds of the city of Portland, we quote from the brief of the learned counsel, at page 492 of 27 Or., as follows:

“The legislative assembly cannot transfer from one municipality (City of Portland) to another (Multnomah County) an indebtedness already resting on the former, and make it an obligation of the latter.”

In Cook v. Port of Portland, 20 Or. 580, 585 (27 Pac. 263, 264: 13 L. R. A. 533), Mr. Justice Bean quotes with approval from the case of Curry v. Dist. Tp. of Sioux City, 62 Iowa, 104 (17 N. W. 191), as follows:

“The word ‘municipal,’ as originally used in its strictness, applied to cities only; but the word now has a much more extended meaning, and when applied to corporations the words ‘political,’ ‘municipal’ and ‘public’ are used interchangeably.”

A county is a public corporation, classed with cities, towns, and villages, and invested with subordinate legislative powers to be exercised for local purposes connected with the public good, and subject to the control of the State. 2 Kent, *275.

4, 5. In construing a written constitution, the object is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not prevail in the particular case, nothing remains except to enforce it. The thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, involving no absurdity and no contradiction between different parts of the instrument, then that meaning apparent on its face is the only one we are at liberty to say was intended to be coveyed. In such case there is no room for construction. We have no right to add to or take away from that meaning. Endlich, Interpretation of Statutes, § 507; Cooley’s Constitutional Limitations (7 ed.) p. 89.

6. It is undoubtedly true that a constitution is a law differing from statutes in its paramount force in cases of conflict, being supreme over all of them. Cooley’s Constitutional Limitations, p. 78. A constitution which provides for the future, as well as the present, is to be interpreted so as to carry out the great principles of government; and to this end the application of arbitrary rules of construction is to be resorted to with hesitation and only with much circumspection. Endlish’s Interpretation of Statutes, § 506.

7. As to what laws are local or special, we notice the following authorities: “An act is local when the subject relates to a portion only of the people or their property, and may not, either in its subj ect, operation, or immediate necessary results, affect the people of the State, or their property, in general.” 36 Cyc. 987, note, citing Sedgwick St. & Const. Constr. (2 ed.) p. 589, note, quoted in Earle v. San Francisco Bd. of Education, 55 Cal. 489, 491; State v. Pond, 93 Mo. 606, 640 (6 S. W. 469).

“The term ‘local,’ as applied, to statutes, is of modern origin, and is used to designate an act which operates only within a single city, county, or other particular division or place, and not throughout the entire legislative jurisdiction. In this sense, the term ‘local’ is the antithesis of ‘general.’ ” 36 Cyc. 987, note, citing State v. Sayre, 142 Ala. 641 (39 South. 240).

See, also, McGregor v. Baylies, 19 Iowa, 43. The qualifying words “local” and “special,” relating to municipal legislation, used in Article IV, Section la, are synonymous terms, and mean enactments intended to affect only certain persons, or to operate in specified localities only. Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153, 155).

The principle of local self-government is regarded as fundamental in American political institutions. It is not an American invention, but is traditional in England, and is justly regarded as one of the most valuable safeguards against tyranny and oppression. From Blackstone and the elementary writers we learn that the civil divisions of England—counties, towns, etc.—date back to the times of Alfred the Great. In no changes of policy, dynasty, peace or internal war, or even conquest, have these organizations been abandoned. They are in effect the same now as they were before the Norman invasion. Wherever the Anglo-Saxon have gone with their language and laws, these communities, each with a local administration, have gone with them. Here have been the seats of modem civilization, the nurseries of public spirit, and the centers of constitutional liberty. They are the opposites of those systems that collect all power at a common center. This right of self-government should be carefully guarded, and every infraction or evasion thereof condemned. This important principle finds its ideal counterpart in the New England town meeting, which is a legal assembly composed of the qualified voters of a town, and held for the election of all town officers and the discussion of all' matters pertaining to the public business, property, and expenses of the town. Black’s Constitutional Law (3 ed.) 504, 505.

In pursuance of this general principle, municipal corporations are established in all the states and invested with rights and powers of government subordinate to the general authority of the state, but exclusive within their sphere. The principle of local government being thus firmly implanted in our political system, it rests with the legislative authority of each state, which, in this State, includes the legal voters by means of the initiative, to apply and adjust this principle to the varying needs of its own people. That sovereign authority must determine what municipal corporations shall be created, and what shall be their powers and the limit of their jurisdiction, according to the requirements of the different sections and districts of the State and their capacity and need of local government. In some of the states, the right of local government is guarded by constitutional provisions forbidding the legislature to make any private or special laws “regulating the internal affairs of towns and counties.” In others, it is considered as one of the rights inherent in the people at the time of the adoption of the constitution and reserved to the people by that instrument, except as modified by the grant of authority to the legislature. Black’s Constitutional Law, § 185.

In this State we have a dual system of legislation. By the provisions of our constitutional amendments, the right to enact local, special, and municipal measures is reserved to the legal voters of their municipalities and districts. This authority is to be exercised in the respective localities by means of the initiative process. Whatever have been the duties or powers of counties prior to the adoption of these amendments, we see no reason why such quasi municipalities or districts cannot be endowed with legislative functions by the plain provisions of the constitution.

8. For the origin of the provision for local self-government by direct legislation, we must look to Article IV, Section la, of the constitution, wherein the people of this State declare as a fundamental law that “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.” And a county is clearly a municipality or district, within the meaning of this section: Acme Dairy Co. v. Astoria, 49 Or. 520, 523 (90 Pac. 153, 155); Cook v. Port of Portland, 20 Or. 584, 585 (27 Pac. 263, 264: 13 L. R. A. 533). The word “district,” as used in this section has a broader or more elastic signification than “county,” and may designate a territory comprising more than a county, or containing a less area. In defining the power conferred by Article IX, Section la, the framers used the word “county,” which is more specific than “municipality” or “district,” although the former is included in the latter. Briefly stated, the word “county” is, by the constitutional provision contained in Article IX, Section la, for the purpose therein expressed, practically incorporated into and made a part of Article IV, Section la.

9, 10. Counsel for defendant make the further contention that Article IX, Section la, conflicts with Article IV, Section 23, subdivision 10. This is tantamount to a claim that a constitution cannot be changed. It is apparent from a careful examination of both of these sections that Article IX, Section la, being the later, modifies the provisions of subdivision 10 to a certain extent by providing that “none of the restrictions of the constitution shall apply to measures approved by the people declaring what shall be subject to taxation or exemption and how it shall be taxed or exempted whether proposed by the legislative assembly or by initiative petition.” This would appear to signify that, while we think the constitution is still paramount to the statute, there is now less difference than formerly between a constitutional provision and a statute enacted by the people pursuant to the initiative power. It should also be borne in mind that Section 23 of Article IV is an inhibition upon the passage of local or special laws by the legislative assembly.

Carrying out the precepts contained in these portions of our constitution by giving them the meaning clearly indicated by the language used therein, and as generally understood by those for whom their provisions were intended, and proceeding in accordance with the legislative enactment, known as the “Enabling Act,” we conclude that the initiative power, or power to propose and enact laws, reserved by the people in Article IV, Section 1, was further reserved by Article IV, Section la, 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 municipality or district; and that the people of the several counties are authorized by Article IX, Section la, to regulate taxation and exemption, within their several counties, in the manner provided by Article IV, Section la. This is to be done in a manner subservient to any general law of the State which may be enacted, thus utilizing the power conferred upon counties as political subdivisions of the State.

11. The proposed measure is not contained in the record and we are not called upon to construe its provisions, or decide whether or not it is local. The relief prayed for should be granted, and the petition filed. It follows that the peremptory writ should issue, and it is so ordered.

Peremptory Writ Ordered.