Cameron v. Stevens

• Decision Date: 24 May 1927
• Citation: 121 Or. 538,256 P. 395
• Parties: CAMERON v. STEVENS, County Clerk.
• Court: Oregon Supreme Court

256 P. 395

121 Or. 538

CAMERON v. STEVENS, County Clerk.

Supreme Court of Oregon

May 24, 1927

Isham N. Smith, of Portland, for plaintiff.

Newton C. Chaney, Dist. Atty., and Porter J. Neff, A.E. Reames, and John H. Carkin, all of Medford, Wm. M. Briggs, of Ashland and Rawles Moore, of Medford, for defendant.

RAND J.

By chapter 34, L. 1927, the Legislative Assembly enacted a law establishing the city of Medford as the county seat of Jackson county. As enacted, the act contained an emergency clause. The defendant is the county clerk of that county. Seeking to invoke the referendum on said measure, plaintiff presented to defendant for filing a petition signed by the requisite number of legal voters of the county which defendant refused to file, assigning as the reason therefor that the act was not subject to referendum because it contained an emergency clause. Plaintiff then made application to this court for the issuance of an alternative writ of mandamus, and an alternative writ was issued directed to the defendant as county clerk, requiring her either to file the petition or to show cause for not having done so. The cause shown is by demurrer to the writ upon the ground that the facts stated in the alternative writ are not sufficient to entitle plaintiff to the relief sought, and this presents the sole question for decision.

Article 4, § 1, of the Constitution, provides:

"The legislative authority of the state shall be vested in a Legislative Assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly. The first power reserved by the people is the initiative. *** The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent. of the legal voters, or by the Legislative Assembly, as other bills are enacted. Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the Legislative Assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people," etc.

Article 4, § 1a, of the Constitution among other things provides:

"*** 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. Not more than ten per cent. of the legal voters may be required to order the referendum nor more than fifteen per cent. to propose any measure, by the initiative, in any city or town."

For the purpose of providing means by which counties and districts may put into execution the powers conferred by article 4, § 1a, the Legislature by section 4111, Or.L., provided:

"That any law enacted by the Legislative Assembly, relating only to any county or district in the state of Oregon, other than municipal corporations, may be referred to the people of such county or district for their approval or rejection in the same manner as now or hereafter provided by law for the reference of general laws to the people of the entire state, excepting that when any law relates only to one county the county clerk shall be substituted for the secretary of state, the district attorney for the Attorney General, and the county judge for the Governor. When any law affects any district consisting of more than one county, it shall be referred in the manner provided for the reference of acts affecting the entire state, except that the petition therefor shall be signed only by the voters of such district, and in both counties and districts the percentage shall be computed on the vote at the preceding election in such county or district for supreme judge."

It is plaintiff's contention that section 1, the earlier amendment, is general in its terms, and that section 1a is a later special provision on a local subject, and is therefore the controlling provision upon this question upon the principle that, where there are two enactments on the same subject, and the earlier one is special and particular, and the latter, general in its terms, and there is a conflict between the two, the special act must be taken as intended to constitute an exception to...