State v. Macy

161 P. 111, 82 Or. 81, 1916 Ore. LEXIS 97

• Court: Oregon Supreme Court
• Decided: November 28, 1916
• Status: Published

Opinion

Mb. Justice Bean

delivered the opinion of the court.

1. The city officers demur to the alternative writ for the reason that it does not state facts sufficient to constitute a cause of action or entitle the relator to the relief sought therein. The former ordinance of the City of Salem provided that such an initiative petition should be filed with the recorder 60 days prior to the election at which the measure was to be voted upon. It is the contention on the part of the city that the initiative petition was not filed with the city recorder within the time provided by law. It is insisted that the ordinance amending the former ordinance and reducing the time for filing such petition to 30 days before the election did not go into effect until 10 days after the same was approved by the mayor, or until November 6,1916, and therefore there was not time for a compliance with the terms thereof before the election on December 4th, and that the petition was not filed within the time allowed. The contrary is maintained by counsel for plaintiff. That .the city council may ordain provisions for the carrying into effect of the initiative and referendum powers reserved to the legal voters of a municipality is well settled and unquestioned. Assuming without deciding that the ordinance approved October 25th is in force, the date of the election at which it is desired to-have the initiative measure acted upon being December 4, 1916, by the terms of the latter ordinance such-initiative petition must be filed with the recorder not. later than 30 days before that date. In order to comply with this requirement the last date upon which such petition could have been filed was November 3,. 1916. In other words, after the filing of such petition, 30 full days must elapse before the election. The-filing of the petition having been completed on November 4th, excluding that day only, 29 days would elapse before December 4, 1916.

Section 531, L. O. L., provides in part as follows:

“The time within which an act is to be done, as provided in this Code, shall be computed by excluding the-first day and including the last, unless the last day fall upon Sunday, Christmas, or other nonjudicial day, in which case the last day shall also be excluded.”

In Rynearson v. Union County, 54 Or. 181 (102 Pac. 785), in applying Section 531, L. O. L., to the statute-requiring a satisfactory proof “that notice has been given by advertisement, posted * # thirty days previous to the presentation of said petition to the county court,” where the notice was posted upon September 3d, and the first day of the term of the County Court then next ensuing was October 3,1906, it was held that such notices were posted only 29 days prior to the-session of the court: See, also, United States Nat. Bk. v. Shefler, 77 Or. 579, 581 (143 Pac. 51, 152 Pac. 234).

It is unnecessary, therefore, to consider the question as to whether the ordinance is in force, as in any event the initiative petition was not filed according to the-allegations of the alternative writ 30 days before the city election, in accordance with Ordinance No. 1464.

The demurrer to the writ will therefore he sustained.

Demurrer Sustained.

Mr. Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.