State v. Portland

133 P. 62, 65 Or. 273, 1913 Ore. LEXIS 263

Opinion

Opinion by

Mr. Chief Justice McBride.

It is to be regretted that the short time intervening between the hearing of this case and the Portland City election precludes an extended discussion of the important points raised in the briefs of counsel.

The principal contention of counsel for relators is that the amendments voted on May 3, 1913, and which for convenience we shall designate as the “commission charter, ’ ’ are now in effect, so that no nominations can' be made under the commission charter for the city officers provided for therein. By Section la, Article IV, of the Constitution, as amended June 4, 1906, full powers of initiative are reserved to the people of all municipalities as to all local, special, and municipal legislation of any character. It was provided that the manner of exercising such powers should be prescribed by general laws, except that cities and towns might prescribe the manner of such exercise as to their municipal legislation. By Section 2, Article XI, of the Constitution, as amended June 4,1906, the legal voters of cities were given power to enact and amend their municipal charters subject only to the Constitution and to the criminal laws of the state. The subsequent amendment to this section, adopted November 8, 1910, makes no change as to the matters here considered. By the provisions of Section 12 of ordinance No. 16,311, approved March 26, 1907, it is provided that the votes on measures and charter amendments shall be counted,' canvassed, and returned by the election hoards, and that it shall be the duty of the auditor to canvass the votes given for each measure or amendment. The mayor is required within 30 days from the time of the election to proclaim the adoption of each measure or amendment which shall have received the affirmative majority of the total number of votes cast thereon, and thereafter such measure or amendment shall become and be in full force and effect. In these two constitutional provisions and in the ordinance referred to we have complete machinery for submitting charter amendments and declaring the result of the vote thereon, and these seem to have been complied with in every particular. In Section 1 of Article IY of the Constitution, as amended June 2, 1902, it is provided: “Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise.”

1. It may well be doubted whether it was in the power of the council of Portland to prescribe by ordinance the time when a measure referred to the people should become effective, hut in our view of the case this matter is unimportant as applied to the case at bar. The act is now effective in any view of the law, and the petitions for nomination are now on file and ready to he acted upon, and whether they were signed before or after the law went into effect is a matter of no moment.

2, 3. It is claimed that the proposed commission charter is void because it prohibits the designation of the political party or the affiliation of the candidates upon the ballot. This it is said is in effect a prohibition of political parties, and allows members of one political party to control or defeat the nominations of another political party. It is no doubt true that the people have an inalienable right to assemble themselves into political parties, and that conventions and assemblies of a political party have a right to be protected from the interference of .members of other political parties; but the revision in question does not? prohibit political parties nor authorize interference/ with their councils.' Any party may indorse, support and work for the election of any candidate of its choice. The proposed charter assumes that a voter desiring to vote for a person of his own political faith will take interest enough to ascertain the name and status of such candidate without having to refer to the ballot when he comes to the voting booth. Some voters prefer to vote for candidates of their own religious faith or belonging to the same secret or benevolent societies, but that has never been advanced as an argument for the right to have a candidate designated on the ballot as a Methodist, a Catholic, a Mason, or an Odd Fellow. Religious associations are not destroyed by the failure to designate the peculiar religious faith of the candidate upon the ballot, and it would seem that, as a matter of abstract right, it would have as much place there as a designation of the candidate’s political faith; nor were the rights- of any political party invaded by the proposed change in the charter whereby the primary nominations were rendered nugatory.

4. It is also claimed that the proposed revision is illegal and void because it submits a mass of amendments, having no relation to each other, to be voted upon in one vote, whereas they should have been submitted separately so that a vote could be taken upon each separate section or amendment. The authorities cited to sustain this proposition are: 21 Am. & Eng. Ency. of Law (2 ed.) 47; 28 Cyc. 1548, 1549; City of Eugene v. Willamette Valley Co., 52 Or. 490 (97 Pac. 817); Denver v. Hayes, 28 Colo. 110 (63 Pac. 311). The subject under discussion in all these citations is concerning the proposition of the issuance of municipal bonds or creating municipal indebtedness, and each case cited turns upon some statutory or constitutional provision not found in this state. The premise assumed by relators in the case at bar is that a mass of amendments having no relation to each other are submitted for a single vote. An examination of the amendments, and of the charter as it would read as amended, shows the premise is incorrect. The principal object of the revision is to provide for a commission form of city government. To do this it was deemed necessary, and in fact was necessary, to so revise the charter as to adapt its provisions to the conditions involved by the change. It - would not suffice to submit an amendment declaring that Portland should have a commission form of government consisting of a mayor and four commissioners without wiping out those provisions of the charter which divided the city into wards and provided for the election of a councilman in each ward or that portion which provided for an executive board, and the other boards, officers and commissions theretofore existing. It was wholly proper that in a general way the powers, authority, duties, and jurisdiction of the commission should be outlined; and, if any criticism is to be indulged in, it should be that the outline is not drawn as clearly as it should have been. The amendments amount to a general revision of the city charter, and are all germane to the general purpose sought to be accomplished. The following remarks of Mr. Justice Moore, in the case of City of Eugene v. Willamette Valley Co., 52 Or. 490 (97 Pac. 817), are applicable here: “As the legislature could, heretofore, have changed a municipal charter or altered any part of it, except that vested rights could not be impaired or destroyed, it would seem necessarily to follow that, under the amended clause of the organic act quoted (referring to Article XI, Section 2, of the Constitution, as amended June 4, 1906), the qualified voters of every town and city possessed the same measure of power. If the doctrine suggested is not applicable, the enactment or amendment of a municipal charter, by voting for separate sections, might destroy the efficacy of the proposed plan of city government, or very much delay its adoption.” Without committing ourselves to the unqualified declaration that every amendment and part thereof is absolutely valid and unassailable, we content ourselves with saying that, taken as a whole, we discover no such omissions or discrepancies as would justify us in holding that the revision is void.

5. Another contention is that there is no authority under our laws for a municipal corporation to repeal any portion of its charter. This, if true, would be a unique condition. It is settled that since the constitutional amendment last cited the legislature cannot repeal or amend a municipal charter, and, if the municipality cannot do it, then it sits clothed in a suit of steel armor, riveted and bolted so securely that only by an appeal to the people of the whole state can the burden be removed. Happily, our municipal corporations labor under no such disability. The section of the Constitution last referred to provides: “The legal voters of every city and town are hereby granted power to enact and amend their municipal charter,” etc. Now, an amendment to a charter necessarily implies a change in a charter, and a change suggests a repeal of some part of that which is to be amended. “The term ‘amendment’ implies such an addition or change within the lines of the original instrument, as will effect an improvement, or better carry out the purposes for which it was framed”: Livermore v. Waite, 102 Cal. 113 (36 Pac. 424; 25 L. R. A. 312); State v. Wright, 14 Or. 367 (12 Pac. 708); Falconer v. Robinson, 46 Ala. 340. A new bill may be ingrafted by way of amendment on the words “Be it enacted,” etc.: De Hay v. Berkeley County Commrs., 66 S. C. 229 (44 S. E. 790). We conclude, therefore, that a charter may be amended by repealing objectionable provisions with or without inserting other provisions in their places. It is true that in McKeon v. Portland, 61 Or. 385 (122 Pac. 291), we held .that a municipal corporation could not commit suicide by wholly repealing its charter and going out of existence as a mnnicipality, but that is not this case. Here the municipality continues to exist; its charter is merely amended by striking out certain provisions thought to be inapplicable to changed conditions or improved methods of city government and inserting others deemed to be applicable thereto.

6, 7. The preferential system of voting provided for in the revision is attacked as being a violation of the Constitution. Section 16, Article II, of the Constitution, as amended June 1,1908, among other things, provides : “Provisions may be made by law for the voter’s direct or indirect expression of his first, second or additional choices among the candidates for any office. ’ ’ Now, a city charter enacted by the voters of the municipality is as much a law as if it were enacted by the legislature. A provision, therefore, made in such charter for the expression by the voter of his first, second or third choices among the candidates for any office is a “provision made by law” for that purpose,- and within the Constitution. We have frequently held, and again hold, that within its boundaries and upon subjects relating purely to its municipal affairs a municipal corporation has the same power to legislate as the legislature had before the passage of the amendment. Municipal elections and the choice of municipal officers are matters of purely municipal concern ; and, as to these, the people of the city have ample power to legislate, subject only to the restrictions heretofore noted.

8. It is objected that certain'sections of the charter are repealed as charter provisions, but retained as ordinances, subject only to repeal by the commission council; and it is contended that this is a delegation of power to the council to repeal these provisions of the charter and unlawful for the reason that, if the right to repeal portions of the charter is granted, such right must he exercised by the people and cannot be delegated to the council. The effect- of the clause in the revision objected to is to repeal the provisions as parts of the chapter and to re-enact them as ordinances. The people have already repealed them so far as they stood as charter provisions, but have re-enacted them as ordinances. There is no delegation of power here.

Other objections are urged, but in our judgment they go merely to the policy of the proposed revision, and not to the authority to enact it.

9. We think the true test is this: Could the legislature before it was deprived of the power to enact or amend charters have enacted this revision? We are of the opinion that it could have done so, and that the courts would have held it valid. If the legislature could lawfully have done this before the amendment, the people of the City of Portland can do the same within its corporate limits since the amendment. It must be confessed that the change is a tremendous one, and the centralization of all the powers of the city in the hands of five men is an experiment in which mistakes in the selection of the persons who are to wield this enormous grant of power might be fraught with serious consequences. But these are matters with which we have nothing to do; they were left to the decision of the voters of the city at the polls, and by a small majority they have decided to try the experiment. As to the 54 per cent of the voters who did not take interest enough in this important matter to cast a vote either way, the only conclusion must be that they do not care how they are goverfted and are mere ciphers to be put in a column by themselves. This court cannot legislate a government for the City of Portland. It can only declare the judicial results of the election, and express the hope that the new experiment may prove a successful one.

Wbit Dismissed.