Amalgamated Transit Union-Division 757 v. Yerkovich

• Decision Date: 27 January 1976
• Docket Number: UNION-DIVISION
• Parties: AMALGAMATED TRANSIT757, a labor organization, et al., Respondents, v. George YERKOVICH, in his capacity as Auditor of the City of Portland, Respondent, and John H. Wilson et al., Appellants.
• Court: Oregon Court of Appeals

Page 1401

545 P.2d 1401

24 Or.App. 221

AMALGAMATED TRANSIT UNION-DIVISION 757, a labor

organization, et al., Respondents, v. George YERKOVICH, in his capacity as Auditor of the City of

Portland, Respondent,

and

John H. Wilson et al., Appellants.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 1975.

Decided Jan. 27, 1976.

Ferris F. Boothe, Portland, argued the cause for appellants. With him on the briefs were Black, Kendall, Tremaine, Boothe & Higgins, Portland.

Daniel B. Cooper, Deputy City Atty., Portland, argued the cause for respondent Yerkovich. With him on the brief were John W. Osburn, City Atty., and Thomas R. Williams, Senior Deputy City Atty., Portland.

John R. Faust, Jr., Portland, argued the cause for other respondents. With him on the brief were Joseph S. Voboril and Matthew W. Chapman, Portland.

Before LANGTRY, P.J., and THORNTON and LEE, JJ.

LANGTRY, Presiding Judge.

On May 15, 1969 Portland's City Council passed a resolution expressing a preference for a specific 'corridor alignment' or route designation for the 'Mt. Hood Freeway' proposed to be built by the Oregon State Highway Department through southeast Portland. Following a decision by the United States District Court 'invalidating' the planned location of the proposed freeway, the city council passed a second resolution on July 25, 1974 rescinding its 'approval' of the highway and requesting that the United States Secretary of Transportation transfer funds previously allocated for its construction to alternative 'mass transit projects.'

On May 19, 1975 the 'Committee to Build the Mt. Hood' (defendants) filed with the auditor for the City of Portland an initiative petition prepared and circulated by it which proposed the enactment of an ordinance 'approving the construction of the Mount Hood Freeway/Transitway in southeast Portland with federal and state funds on a route to be selected by the appropriate procedure and agencies in accordance with applicable laws and regulations.' Shortly thereafter plaintiffs ¹ brought this suit for declaratory judgment and injunctive relief seeking to prevent the certification of the petition as a ballot measure. , in essence plaintiffs alleged in their complaint that because the ordinance proposed by defendants would (1) be of no binding force or effect on any person or agency and thus advisory in nature, and (2) constitute an administrative rather than legislative act its enactment would be an abuse of the initiative power which is limited solely to the passage of 'legislative' measures. Defendants appeal from an order adjudging any certification of their petition by the city's auditor to be void, and enjoining any further action calculated to lead to the inclusion of the measure on the ballot.

In its memorandum opinion the circuit court noted that if enacted defendants' proposed ordinance would, in addition to reflecting the 'attitude of the electorate,' serve only to 'request' (1) that the United States Secretary of Transportation continue to approve the Mt. Hood Freeway as part of the interstate highway system, and (2) that both federal and state highway authorities undertake all necessary steps to accomplish the construction of the facility. ² The circuit court pointed out that the measure would neither command nor direct any city official to perform any specific act or accomplish any precise goal, and concluded that the initiative petition did not, in fact, propose the enactment of a 'law':

'* * * (I)t calls for the expression of the public view or opinion respecting the freeway and, if it received the approval of a majority of the voters, solicits, not compels, consistent action by persons other than officials of the City of Portland. In the first respect the proposed initiative would be nothing more than a public opinion poll. In the latter respect it amounts to nothing more than a resolution or a memorial to the department of transportation * * *.'

The legislative devices of the initiative and referendum were added to the Oregon Constitution in 1902. ³ Each provides a means by which a popular vote may be obtained on a given issue--the initiative for proposing acts and the referendum for attacking those newly adopted by elected officials.

The basic law of the initiative is set out in Article IV of the state constitution which vests the legislative power of the state in a legislative assembly ⁴ while reserving to the people the power 'to propose laws and amendments to the Constitution and enact or reject them at an election independently * * *' of the legislature itself. ⁵ The initiative power is also specifically reserved to the qualified voters of each municipality, 'as to all local, special amd municipal legislation of every character in or for their municipality * * *.' ⁶

The authority of the electorate to enact measures by popular vote is not, however, without limitation. The courts of this state have consistently held that these devices may be employed solely to propose or attack measures 'legislative' in nature. The courts have noted that the constitutional provisions conferring the initiative and referendum are placed within the article defining and delegating the state's Legislative powers, and have taken cognizance of the ways in which the conduct of government would be seriously hampered were the initiative and referendum to be used to compel or bar 'administrative' acts by elected officials. See, for example, State ex rel. Allen v. Martin, 255 Or. 401, 465 P.2d 228 (1970); Tillamook P.U.D. v. Coates, 174 Or. 476, 149 P.2d 558 (1944); Campbell v. City of Eugene, 116 Or. 264, 240 P. 418 (1925); Long v. City of Portland, 53 Or. 92, 98 P. 149, 98 P. 1111 (1908); Yamhill County v. Dauenhauer, 6 Or.App. 422, 487 P.2d 1167 (1971), Aff'd 261 Or. 154, 492 P.2d 766 (1972).

Thus, the significant question is whether the petition defendants sought to have submitted to the electors of Portland constituted an appropriate use of the initiative as a proposal of 'legislative' action. ⁷

The test for distinguishing between legislative and administrative acts has been expressed in various terms over the years by the Supreme Court. In Long v. City of Portland, supra, the court described 'legislation' as 'general laws * * * rules of civil conduct * * * of general application * * *,' and concluded that measures relating 'to questions or subjects of a permanent or general character * * *' constituted legislation while those having a 'temporary and restrictive' effect did not. 53 Or. at 100--01, 98 P. 149. The court subsequently noted in Monahan v. Funk, 137 Or. 580, 584--85, 3 P.2d 778, 779 (1931), that:

'In determining whether the ordinance in question (is) legislative or administrative * * * authorities * * * are in accord that actions which relate to subjects of a permanent or general character are considered to be legislative, while those which are temporary in operation and effect are not. Acts which are to be deemed as acts of administration and classed among those governmental powers properly assigned to the executive department are those which are necessary to be done to carry out legislative policies and purposes already declared, either by the legislative municipal body, or such as devolved upon it by the organic law of its existence. The form of the act is not determinative; that is, an ordinance may be legislative in character or it may be administrative: 43 C.J., 585, § 952; Long v. Portland, 53 Or. 92, 98 P. 149, 1111; Campbell v. Eugene, 116 Or. 264, 240 P. 418.

'The crucial test, for determining that which is legislative and that which is administrative, is whether the ordinance was one making a law or one executing a law already in existence: Campbell v. Eugene, supra * * *.' (Emphasis supplied.)

Consistent with its opinion in Monahan, the court adopted in State ex rel. Allen v. Martin, supra, 255 Or. at 407, 465 P.2d at 231, the following as a 'clear statement' of the distinction between legislative and administrative acts:

"* * * Generally, an ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is purely legislative in character * * * while an ordinance which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable."

The Mt. Hood Freeway was originally proposed as a part of the 'interstate system,' a federal-aid program established by Title 23 of the U.S.Code. That enactment provides in relevant part that the routes of the interstate system are to be selected by joint action of state highway departments of the states, subject to the approval of the Secretary of Transportation, ⁸ and that no specific project designed to pass through an urban area of more than 50,000 population will be approved unless the Secretary finds that it is

'* * * based on a continuing comprehensive transportation planning process carried on cooperatively by States and local communities * * * (No such urban project) may be constructed * * * unless the responsible public officials of such urban area in which the project is located have been Consulted and their views Considered with respect to the corridor, the location and the design of the project.' (Emphasis supplied.) 23 U.S.C. § 134(a) (1970).

Thus, the selection and approval of segments of the interstate highway system authorized by Title 23 are administrative functions delegated by the Congress to the Secretary of Transportation and the various state highway departments. While it must be consulted before the Secretary will approve any project within its boundaries, the City of Portland has no authority to either compel or bar the construction of any part of the interstate system; its 'approval' of a project within that system, accompanied by a 'request' that responsible state and federal officials carry out its construction...