Branch v. Albee

• Decision Date: 16 June 1914
• Citation: 142 P. 598,71 Or. 188
• Parties: BRANCH v. ALBEE, MAYOR, ET AL.
• Court: Oregon Supreme Court

142 P. 598

71 Or. 188

BRANCH v. ALBEE, MAYOR, ET AL.

Supreme Court of Oregon, En Banc.

June 16, 1914

Original proceeding by Benjamin Branch for mandamus to H. R. Albee Mayor, and others, constituting the board of police pension and relief of the city of Portland. Demurrer to alternative writ sustained.

This is an original mandamus proceeding commenced in this court by Benjamin Branch, the petitioner, to obtain a writ of mandamus, compelling the defendants to retire him, as a member of the police force of Portland, upon a pension, in accordance with the provisions of chapter 287, of the Laws of 1913. The facts are stated in the opinion.

McBride C.J., and Burnett, J., dissenting.

Loring K. Adams and R. E. Moody, both of Portland (Sinnott & Adams of Portland, on the brief), for petitioner. W. P. La Roche and H. M. Tomlinson, both of Portland, for defendants.

RAMSEY J.

This is a mandamus proceeding commenced in this court to obtain a writ of mandamus, commanding H. R. Albee, as mayor of the city of Portland, John Clark, as chief of police, and Wm Adams, as city treasurer, constituting the board of police pension and relief of the city of Portland, to retire him upon a pension, in accordance with the provisions of chapter 287 of the Laws of 1913, enacted by the legislative assembly. By this act of the legislative assembly, the mayor, the chief of police, and the treasurer of every city in the state having more than 50,000 inhabitants are, in addition to the duties required of them, constituted a board of police pension and relief. The title of this act is as follows:

"An act to create a police relief, health, disability and pension fund in cities of the state, having more than 50,000 inhabitants, providing for the disbursement thereof, and creating a board of police pension and relief."

Section 3 of this act provides for a police relief, and pension fund to be obtained from the following sources: Not more than 1 per centum of all moneys collected from licenses for the keeping of places in which spirituous, malt, or other intoxicating liquors are sold; not more than one-half of all moneys received from taxes or licenses upon dogs; all moneys received from the sale of unclaimed property; not more than 10 per cent. of all moneys received from licenses from pawnbrokers, secondhand stores, junk dealers, and for conducting billiard, pool or pigeon-hole tables or billiard or pool rooms; all moneys received from fines for carrying concealed weapons; not more than 5 per cent. of all fines received in money for violation of city ordinances, and the treasurer of the city is required to retain from the pay of each member of the police department of said city a sum equal to 1 1/2 per cent. of the monthly compensation paid each member for his services as such police officer.

Section 4 of said act provides, in substance, that when any person who is 60 years of age, and has served as a regular policeman for such city for 20 years or more in the aggregate, the board shall order that such person shall be retired from further service in such police department, and from the date of the making of such order the service of such person in said police department may cease, and such person so retired shall thereafter, during his lifetime, be paid from such fund a yearly pension equal to one-half the amount of salary attached to the rank which he may have held in said police department for the period of one year next preceding the date of such retirement.

Section 5 of said act provides for retiring policemen who are disabled in the performance of their duties, and the payment to them during their lives of an annual pension equal to one-half of the salary that they are receiving from the city. This section provides, also, that if a person pensioned for disability recovers from the injury, the pension granted him shall cease. Section 7 of this act provides, also, for granting pensions to the widows and children of policemen who lose their lives while in the performance of their duties as policemen. This act contains many other provisions that need not be stated in this opinion.

An alternative writ of mandamus was issued and served on the defendants, and the defendants, for the purpose of showing cause against awarding a peremptory writ, have demurred to the alternative writ, alleging that it does not state facts sufficient to entitle the petitioner to a writ of mandamus, etc.

The defendants, by their demurrer and their brief, contend that said act of the legislative assembly is unconstitutional, and hence invalid, and this contention presents the only question for decision.

1. The legislative assembly in 1903 enacted a new charter for the city of Portland, and sections 196, 197, and 198 thereof provided for the granting of pensions to members of the police and fire departments of said city. Section 196 authorized the executive board therein named to assess to each member of the police and fire departments a sum to be deducted from his monthly salary, not exceeding 50 cents per month, which sum was required to be paid to the city treasurer, and to be placed to the credit of the police and fire departments relief fund, to be used exclusively for the relief of the sick and disabled members of said departments, and for funeral expenses, and for relief of the families of deceased members and for pensions. Section 197 of the charter provides for obtaining other funds for the relief of policemen and firemen, and section 198 provides for the payment of pensions, under certain conditions, to members of the police and fire departments, etc. The said charter provisions provide a complete scheme for pensioning members of the police department, but the amounts to be paid are much less than the amounts provided for by the act of 1913. There are other material differences between the two schemes. The charter enacted in 1903 was in force when the act of 1913 was passed. The charter of 1903 required the city to pay certain pensions and to grant certain relief to members of the police department and their families. The act of 1913, relating to cities having more than 50,000 inhabitants, but in fact applying only to the city of Portland, requires the city of Portland to pay to members of the fire department, under the conditions stated therein, much larger pensions than were required by the charter to be paid. This court is required to determine whether the said act of 1913 is constitutional. Counsel for defendants state the question for decision thus:

"The question for the court to decide is whether the Legislature has power to compel the city of Portland, without its consent or approval, to comply with an act that pertains to the management of local and municipal affairs. Does this act infringe upon the city's rights to local self-government? Are the people of the city subject to the will of the Legislature in the management of purely local, municipal business in which the state at large is not interested, and which is not of interest to any outside the local municipality? Can the Legislature compel the city against its will to tax itself and spend its money for matters not affected with a state interest?"

In construing a constitutional provision, the whole provision is to be examined with a view to ascertaining the meaning of every part. The presumption is that every clause has been inserted for some useful purpose, and therefore the instrument must be construed as a whole, in order that its intent and general purposes may be ascertained; and, as a necessary result of this rule, it follows that, wherever it is possible to do so, each provision must be construed so that it will harmonize with all others, without distorting the meaning of any of such provisions, to the end, that the intent of the framers of the provision may be ascertained and carried out, and effect be given to the instruments, as a whole.

8 Cyc. pp. 729, 930, says:

"A written Constitution is to be interpreted and effect given to it as a paramount law, to which all laws must yield, and it is equally obligatory upon all departments and individual citizens alike.

"It is not always necessary, in order to render a statute invalid, that it should contravene some express provision of the Constitution; if the act is inhibited by the general scope and purpose of the instrument, it is as

much invalid as though prohibited by the express letter of some of its provisions. Therefore the implied powers and restraints to be found in a Constitution are a very important part of it. * * *

"The purpose of construction, as applied to a written Constitution, is to give effect to the intent of the framers and of the people who had adopted it; and it is a rule of construction, applicable to all Constitutions, that they be construed so as to promote the objects for which they were framed and adopted; and to accomplish this result the extremes of both a liberal and a strict construction are to be avoided, and technical rules are to be excluded."

2. Section 2 of article 11 of the state Constitution, prior to its recent amendments (omitting the latter part thereof which does not relate to the point under consideration), was as follows:

"Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes."

Under said provision general laws could be and were passed for the formation of both private and municipal corporations; but only municipal corporations could be created by special laws. Said section 2 was amended, and at the time that the said act of 1913 was passed by the legislative assembly, the portion of said section relating to the question under consideration was as follows:

"Sec. 2. Corporations may be formed under general laws but shall

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