Blyth & Co. v. City of Portland

• Decision Date: 13 April 1955
• Citation: 204 Or. 153,282 P.2d 363
• Parties: BLYTH & CO., Inc., a Delaware corporation, Respondent, v. The CITY OF PORTLAND, Oregon, a municipal corporation, and the City of Portland, acting by and through the Commission of Public Docks, Appellants.
• Court: Oregon Supreme Court

Page 363

282 P.2d 363

204 Or. 153

BLYTH & CO., Inc., a Delaware corporation, Respondent, v. The CITY OF PORTLAND, Oregon, a municipal corporation, and the City of Portland, acting by and through the

Commission of Public Docks, Appellants.

Supreme Court of Oregon, En Banc.

Argued April 6, 1955.

Decided April 13, 1955.

Robert A. Leedy, Portland, argued the cause for respondent. With him on the brief were Barzee, Leedy, Keane & Erwin, Portland.

Thomas J. White, Portland, argued the cause for appellants. On the brief were Alexander G. Brown, City Atty., Portland, Marian C. Rushing, Chief Deputy City Atty., Portland, White, Sutherland & Parks, and Thomas J. White and Alex L. Parks, for the City of Portland, acting by and through the Commission of Public Docks.

LUSK, Justice.

The question for decision on this appeal is whether Marshall N. Dana, a recent appointee to the Commission of Public Docks of the City of Portland, is disqualified to hold that office because he is not a resident of the City of Portland.

The question was submitted to the Circuit Court without action or suit pursuant to the provisions of ORS 27.030. The court was of the opinion that under the charter of the City no one but a resident of the City is qualified to serve as a dock commissioner, and entered a decree holding Mr. Dana disqualified. The City and the Dock Commission have appealed.

Blyth & Co., Inc., the plaintiff, is a Delaware corporation which is qualified to do business in the State of Oregon and maintains a place of business in the City of Portland. It is a taxpayer in the City of Portland, in Multnomah County, and in the State of Oregon. Its principal business is the purchase and sale of securities, including municipal bonds, both on its own account and for others. The Commission of Public Docks is a legally constituted agency in the City of Portland first created by the charter of the City in 1903. The Commission exercises broad powers over the harbor front of the City, including the power to purchase or acquire by condemnation lands for public-owned dock purposes and the like and to issue in the name of the City revenue and general obligation bonds. See Charter of the City of Portland §§ 6-101 to 6-106. The particular interest of Blyth & Co. in the question of Mr. Dana's qualifications to serve as a member of the Dock Commission derives from the fact that it is a consistent bidder for bonds issued by the Dock Commission and a holder of such bonds in large amounts. The standing of Blyth & Co. to raise the question is conceded.

The Charter amendment creating the Dock Commission contained the following provisions respecting the selection, qualifications and tenure of the commissioners:

'The department of public docks shall be administered by a dock commission composed of five (5) members who shall be appointed by the mayor. Within ten (10) days after the adoption of this measure the mayor shall appoint five (5) persons, who are qualified voters and have been three (3) years residents of the City of Portland, members of the dock commission. Such persons shall determine by lot among themselves the length of their terms, for one, two, three, four and five years, respectively. On the expiration of the term of any member his successors shall be appointed by the mayor. Resignations when made shall be addressed to and accepted by the mayor, and vacancies filled by him by appointment for the unexpired term * * *.' (§ 6-102)

We are of the opinion that the residence requirements in the foregoing section were not limited to the first appointees to the Commission, but were intended to have a continuing application. Any other interpretation would be highly unreasonable. If, therefore, the residence qualifications set forth in § 6-102 are still in effect, Mr. Dana is clearly disqualified because it is conceded that he is not a resident of the City but resides some ten miles beyond the City limits in Clackamas County. The appellants contend, however, that these provisions have been repealed by a charter amendment adopted in 1954 prior to Mr. Dana's appointment.

Section 2-505 of the City's Charter formerly provided:

'No person shall at any time hold more than one office yielding pecuniary compensation under this charter, or under the mayor, council, or any of the departments of the city. All municipal officials, except women, shall be registered voters of the city of Portland.'

At the general municipal election held on November 2, 1954, the people adopted a charter amendment relating to residence qualifications of officers and employees of the City of Portland which became § 2-511 of the Charter, and at the same time amended § 2-505. These sections read as follows:

'Section 2-511. Employes, Residence Requirement Exceptions. Except as hereinafter provided, all officers and employes receiving salary or wages from this city shall be residents of the City of Portland at the time of their election or employment, and continuously during the period of such employment. Any employe coming under the provisions of civil service who is not a resident of the city at the time of employment shall become a resident of the city by the end of his or her probationary period. Any officer or employe who is not a resident of the city on the effective date of this section shall within ten years from such effective date establish residence and become a bona fide resident of the city. Officers or employes whose place of employment in the city service is outside the city limits shall, during such employment be permitted to reside outside the city, but upon being transferred or assigned to employment within the city, such officers or employes shall within one year after such transfer or assignment establish residence and become a bona fide resident of the city. The provisions of this section shall not apply to consulting employes employed under authority of Section 2-504 of this charter, or to unpaid members of city advisory boards, commissions or committees. The Council may by ordinance waive the provisions of this section in the future employment of persons to technical, professional or scientific positions, provided, however, that any person so employed shall within...