City of La Grande v. Public Employes Retirement Bd.
| Decision Date | 25 October 1978 |
| Docket Number | No. 924,I,924 |
| Citation | 586 P.2d 765,284 Or. 173 |
| Parties | CITY OF LA GRANDE, a Municipal Corporation, Respondent, v. PUBLIC EMPLOYES RETIREMENT BOARD of the State of Oregon, Clay Myers, as Secretary of State of the State of Oregon, La Grande Police Association, and La Grande Firefighters' Union, Localnternational Association of Firefighters, American Federation of Labor, Congress of Industrial Organization, Canadian Labour Congress, Petitioners. CITY OF ASTORIA, a Municipal Corporation, Respondent, v. PUBLIC EMPLOYES RETIREMENT BOARD of the State of Oregon, Lester L. Rawls, as Insurance Commissioner of the State of Oregon, Leander Quiring, as Director of the Department of General Services of the State of Oregon, Clay Myers, as Secretary of State of the State of Oregon, Policemen and Firemen of the City of Astoria, as a class, Petitioners. TC 22993; CA 5493; SC 25230; TC 29437; CA 6129; SC 25230. |
| Court | Oregon Supreme Court |
Gary K. Jensen, Eugene, on response to Petition for Rehearing for Policemen and Firefighters of the Cities of La Grande and Astoria.
James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen., and Jan P. Londahl, Asst. Atty. Gen., Salem, on response to Petition for Rehearing for Public Employes Retirement Bd. of the State of Oregon.
In these cases the court sustained state laws mandating certain retirement and insurance benefits for police and firefighting personnel against claims that the laws unconstitutionally infringed on the cities' powers of self-government. 281 Or. 137, 576 P.2d 1204 (1978). The Cities of La Grande and Astoria filed an extensive petition for rehearing, and we set the case down for reargument. We reaffirm the constitutionality of the challenged statutes.
First. The dispute involves the meaning of the "home rule" amendments added to the Oregon Constitution in 1906, which we repeat here to avoid the inconvenience of referring back to the original opinion. Article XI, section 2, was amended to include the words emphasized here:
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 1 . . . .
At the same time, article IV, which had earlier been amended to reserve to the people the statewide powers of initiative and referendum, was further amended to add what is now section 1(5):
The initiative and referendum powers reserved to the people by subjections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district.
Together, the 1906 amendments provide two grants of power and one limitation of power. Article XI, section 2, grants power to the voters of every city or town to enact and amend their municipal charter. It withdraws power from the Legislative Assembly to enact, amend, or repeal 2 such charters. Article IV, section 1(5), empowers local voters to initiate or to refer to popular vote "all local, special and municipal legislation."
It deserves to be reemphasized that the terms of the granted powers and of the accompanying limitation need not be and are not symmetrical. Much of the argument against these statutes has proceeded as though a constitutional grant of power to one level of government necessarily carries with it a corresponding withdrawal of power from the other. That this is not so has long been a truism with respect to the relationship between the powers of Congress and the states, and it is equally true of "home rule" within a state. It is entirely possible to grant certain powers to local governments to act on their own initiative without at the same time limiting the powers of the state legislature. Indeed, as a practical matter this is essential if local government is to have any authority to legislative on its own in matters in which the state could also act, for otherwise local powers would have to be narrowly confined in order to save room for potential state legislation. 3 The fact that the 1906 amendments gave municipal voters direct constitutional power to "enact and amend their municipal charter" and to use the initiative and referendum for "all local, special and municipal legislation" was a great achievement for home rule even though these two clauses did not of themselves take anything from the plenary legislative power of the state, for before 1906 these local powers had to be obtained from the Legislative Assembly.
The withdrawal of power from the legislature is found in the other clause of the 1906 amendments quoted above, that "(t)he Legislative Assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town." Or. Const. art. XI, § 2. Since the attack in the present cases is on state statutes, we deal with an issue whether the constitution denies the state the power to act, not an issue whether it authorizes local action. There is, of course, no question that La Grande and Astoria could adopt retirement or insurance programs for their employees. The only question is whether article XI, section 2, cut off the legislature's authority to enact statewide standards for such programs.
As we noted in the original opinion, the literal text of article XI, section 2, provides no basis for the cities' position, because their own relevant policies were not in fact stated in their city charters. 281 Or. at 150, 576 P.2d 1238. Petitioners do not purport to point to precise words in article XI, section 2, as denying the legislature's authority to enact these laws. However, the opinion also agreed with petitioners that the limitation expressed in article XI, section 2, should not be read to hinge on whether a city chooses to place a particular policy into its charter or into some other form of enactment pursuant to its charter: "It is not the label that matters but the role of the provision in local self-government." Ibid.
While declining to "exalt form over substance," however, we found sense in the draftsmen's choice of words that denied the legislature power to enact or supersede municipal Charters rather than to supersede local enactments of any kind. If the latter were intended, "charter or act of incorporation" would hardly be the way to write it. But the special function of a charter or act of incorporation is that it is needed to organize the local political entity, to establish its governing organs, their selection their powers and their limits. The charter is the local constitution. The fact that cities, like states, sometimes place merely legislative policies into their charters does not contradict this special constitutive function. "The charter is a grant of power, and the municipality possesses only those properties (Sic ) which the charter confers upon it," the court wrote in 1907, citing earlier cases for this restrictive reading of charter powers. MacDonald v. Lane, 49 Or. 530, 532, 90 P. 181, 182 (1907) (). It was against the background of this view of charter powers, granted or denied each city by legislative enactment, that the 1906 amendment withdrew this legislative control over Charters and left the decisions how to structure and empower their municipal organs to the voters of each city or town.
Second. Lacking precise terms in article XI, section 2, that expressly withdraw the power of the legislature to enact these statutes, petitioners invoke the history of the provisions. Specifically, they argue that Justice Harris's opinion in Rose v. Port of Portland, 82 Or. 541, 162 P. 498 (1917), which we quoted in 281 Or. at 144-145, 576 P.2d 1204, confused the explanation given for "home rule" resolutions in 1901 and 1903 with what petitioners describe as the "altogether different" version actually adopted in 1906. 4 But the differences, which of course were known to Justice Harris and Chief Justice McBride, in no way contradict the Reasons for the amendment which were stated in Rose, and for which we quoted that case.
The version originally proposed by the Legislative Assembly in 1901 and 1903, but not submitted to the voters, was almost three times the length of the one ultimately adopted, mainly because the older version contained detailed procedures for the preparation and adoption of charters. 5 Those procedures were omitted in the 1906 amendment. But, without here repeating in detail the argument set forth in the dissent, the main reliance is placed on the fact that the 1906 version made the authority of cities and towns to adopt their own charters subject, not to the "general laws" of the state as in the first version, but to the constitution and criminal laws of the state.
The argument fails to note to what this change referred. What was it that the earlier version proposed to make subject to general laws? It was the authority of a city "to frame a charter for its own government." And, further bearing out the understanding of the function of a charter discussed above, the amendment before its shortening stated that when adopted by the voters, the charter of a city "shall become the organic law thereof." It was precisely this "organic" or constitutive role that article XI, section 2, attributed to the charter. It was this power of each city "to frame a charter for its own government" that would have been subject to and controlled by state legislation under the first but not under the final version of the amendment. And it is these organic and constitutive powers of self-government that are safeguarded by our interpretation of the amendment. 6
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