Burton v. Gibbons

• Decision Date: 18 October 1934
• Parties: BURTON v. GIBBONS.
• Court: Oregon Supreme Court

36 P.2d 786

148 Or. 370

BURTON v. GIBBONS.

Supreme Court of Oregon

October 18, 1934

In Banc.

Original mandamus proceeding by A. W. Burton against J. L. Gibbons, in his official capacity as recorder of the city of Reedsport Douglas county, Or.

Peremptory writ granted.

William M. Briggs, of Ashland, Frank S. Grant, of Portland, and Fred H. Paulus, of Salem (Wallace Benson, of Reedsport, Frank J Van Dyke, of Ashland, Frank P. Farrell, of Medford, John Mullen, of North Bend, E. O. Stadter, and C. Schuebel, of Oregon City, on the brief), for plaintiff.

John W Shuler, of Portland, for defendant.

RAND Chief Justice.

Under chapter 156, Laws 1933 (page 181), the governing body of a city or town, whose bonds have matured or are about to mature, is authorized, without being required to submit the matter to the legal voters and without any authority therefor in its charter, to issue and sell or exchange refunding bonds in an amount not exceeding the par value of said outstanding and unpaid bonds less whatever sum may be in the sinking fund applicable to their payment. This is a general law applicable alike to all incorporated cities and towns in the state.

The city of Reedsport is an incorporated city and the defendant J. L. Gibbons, is the recorder thereof. On August 27, 1934, it had outstanding and unpaid matured, or about to mature, water bonds aggregating the sum of $140,500 and no sinking fund applicable to their payment. On said day and pursuant to said act, an ordinance was passed by its council and signed and approved by its mayor, providing for the issuance and sale or exchange of refunding bonds in an amount equal to the par value of said bonds so outstanding.

The charter of the city of Reedsport, by section 38, paragraph 4, provides that, before an ordinance can go into effect, it shall be attested by the recorder and either be published in the official newspaper or be posted in three public places within the city. Also, by section 42, it limits the borrowing of money by the city to an amount not exceeding $5,000 exclusive of water bonds.

Because of this latter provision in the charter and also because of his contention that chapter 156, Laws 1933, was in conflict with article 4, § 1a, and article 11, § 2, of the state Constitution and, therefore, invalid, the defendant recorder refused to attest and publish or post said ordinance.

A writ of mandamus was thereupon issued out of this court, requiring the defendant either to perform or show cause for not having done so. The cause shown is by demurrer to the writ and the same contentions are again urged as a justification for his refusal to act.

Article 4, § 1a, as adopted on June 4, 1906, reads in part as follows:

"The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation."

On the same day, by another initiative amendment, article 11, § 2, was amended to read as follows:

"Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the state of Oregon."

This last section was further amended in 1910 by adding another clause which, however, has no application to the questions involved here.

It has repeatedly been said that the purpose of these amendments was to avoid certain abuses that had been or were supposed to have been practiced by former Legislatures in enacting city charters by special laws and obviously the purpose of the adoption of article 4, § 1a, was to confer upon the municipalities and districts the same initiative and referendum powers in respect to their local, special, and municipal legislation that had previously been reserved to the people of the state, by article 4, § 1, in respect to all general matters of legislation. Whatever the purpose, these amendments have been the source of more litigation and have caused a greater diversity of opinion as to the scope and meaning to be given them than perhaps any other number of laws which have ever been adopted or enacted in this state. Speaking of article 11, § 2, McBain in his Law and Practice of Municipal Home Rule, p. 592, says:

"On the very face of its recitals this constitutional provision is pregnant with ambiguities and omissions. In the first place, it appears to provide no means whatever by which a new municipal corporation may be brought into existence. It is scarcely to be imagined that the people of any unorganized community could of their own action and without regard to any legal forms or fixed procedure organize themselves into an incorporated city. Yet in the second sentence of the section it is expressly declared that 'the legislative assembly shall not enact *** any *** act of incorporation for any municipality.' This restriction is not qualified by the word 'special.' Surely a general law is none the less, by reason of its generality, 'an act of incorporation', for a city which becomes organized under its provisions. Literally construed this provision would seem to prohibit the Oregon legislature from enacting even a general act for the incorporation of new cities."

Speaking of these amendments and of the difficulties which this court had encountered in their interpretation, as well as of the conflicting opinions that had been rendered by this court in respect to the meaning of the amendments, this court, in Rose v. Port of Portland, 82 Or. 541, 162 P. 498, 508, said:

"*** The amendments were innovations at the time of their adoption, and their newness made it difficult to understand their full scope and meaning; what was then theory has since become practice, and what to some may once have appeared apocryphal has now become familiar and accepted usage, so that now the language of the amendments is shown in the clearer light of practical experience, rendering it less difficult to interpret the amendments, and enabling all readers to see plainly what was then clear to the writers of these changes in the Constitution."

Prior to the decision in Rose v. Port of Portland, in attempting to determine the meaning of these amendments, there were two lines of decisions entirely inconsistent with each other. In one line of cases, the court was of the opinion that the amendments should be given a literal construction, while in the other line of cases a closer analysis seems to have been made and a different result was reached. In one respect, however, all our decisions are in entire accord. It has been consistently held that, in so far as these two amendments relate to the same subject-matter, they should be read together and be so interpreted as to carry out the purpose of the people in adopting them. Acme Dairy Co. v. Astoria, 49 Or. 520, 90 P. 153; McKenna v. City of Portland, 52 Or. 191, 96 P. 552; Farrell v. Port of Portland, 52 Or. 582, 98 P. 145; Branch v. Albee, 71 Or. 188, 142 P. 598, 600; Rose v. Port of Portland, supra.

Prior to Straw v. Harris, 54 Or. 424, 103 P. 777, 782, the literal meaning was given to the language of the amendments. In this latter case, Mr. Justice King, speaking for the court, laid down what we believe to be the true meaning of these amendments. Among other things, he said:

"*** And whatever may be the literal import of the amendments it cannot be held that the state has surrendered its sovereignty to the municipalities to the extent that it must be deemed to have perpetually lost control over them. This no state can do. The logical sequence of a judicial interpretation to such effect would amount to a recognition of a state's independent right of dissolution. It would but lead to sovereigntial suicide. It would result in the creation of states within the state and eventually in the surrender of all state sovereignty-all of which is expressly inhibited by article 4, § 3, of our national Constitution. Power to enact local legislation may be delegated, but this of necessity, whether stated or not, is always limited to matters consonant with, and germane to, the general purpose and object of the municipalities to which such prerogatives may be granted.

"Municipalities are but mere departments or agencies of the state, charged with the performance of duties for and on its behalf, and subject always to its control. The state, therefore, regardless of any declarations in its Constitution to the contrary, may at any time revise, amend, or even repeal any or all of the charters within it, subject, of course, to vested rights and limitations otherwise provided by our fundamental laws. This, under the Constitution as it now stands, may be done by the Legislature through general laws only, and the same authority may be invoked by the people through the initiative by either general or special enactments; only the Legislature being inhibited from adopting the latter method."

The doctrine of Straw v. Harris was later followed and approved in City of McMinnville v. Howenstine, 56 Or. 451 109 P. 81, Ann. Cas. 1912C, 193; Kierman v. Portland, 57 Or. 454, 111 P. 379, 112 P. 402, 37 L. R. A. (N. S.) 339; State ex rel. v. Port of Tillamook, 62 Or. 332, 124...