City of Idanha v. Consumers Power, Inc.

• Jurisdiction: Oregon
• Parties: CITY OF IDANHA, a municipal corporation of the State of Oregon, Respondent, v. CONSUMERS POWER, INC., an Oregon co-operative corporation, Appellant.
• Citation: City of Idanha v. Consumers Power, Inc., 495 P.2d 294, 8 Or.App. 551 (Or. App. 1972)
• Court: Oregon Court of Appeals
• Decision Date: 30 March 1972

Page 294

495 P.2d 294

8 Or.App. 551

CITY OF IDANHA, a municipal corporation of the State of Oregon, Respondent, v. CONSUMERS POWER, INC., an Oregon co-operative corporation, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Jan. 21, 1972.

Decided March 30, 1972.

Robert Mix, Corvallis, argued the cause and filed the briefs for appellant.

Scott McArthur, Monmouth, argued the cause for respondent. With him on the brief were McArthur & Horner, Monmouth.

James M. Mattis, Eugene, argued the cause and filed the brief amicus curiae for League of Oregon Cities.

Before LANGTRY, P.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

City of Idanha (hereinafter referred to as Idanha) brought suit against defendant, an Oregon cooperative corporation, to obtain a decree to compel defendant to comply with city Ordinance No. 6, which requires all public utilities supplying or selling electrical energy within the city to obtain a license yearly.

The defendant appeals from the decree of the trial court enjoining defendant from further violation of the ordinance and ordering defendant to apply forthwith for a license, to render to plaintiff an accounting of its gross revenues from the effective date of the ordinance, and to pay plaintiff the fee prescribed, namely, three per cent of the gross revenues earned within the city.

The questions presented for decision are:

I. Is Idanha a lawfully incorporated city?

II. Was Idanha's home rule charter legally adopted?

III. Is the validity of a home rule charter dependent on the inclusion therein of a description of the city's boundaries?

IV. Did the general powers clause in plaintiff's charter authorize the enactment of Ordinance No. 6?

V. Can Idanha prohibit the defendant from billing back to defendant's customers within Idanha the tax imposed by the ordinance?

VI. Does the definition of 'public utility' in the subject ordinance (which excludes all utilities other than electrical utilities) constitute an unreasonable classification?

VII. Is the two per cent penalty imposed by section 10 of Ordinance No. 6 unconstitutional because it is unreasonable? If constitutional should it be enforced against defendant?

VIII. May Idanha charge defendant interest on the unpaid tax?

I and II

The first two questions presented deal with the validity of Idanha's incorporation and subsequent charter enactment. Idanha's complaint alleged that it 'was a municipal corporation of the State of Oregon duly and lawfully organized and chartered under the laws of the State of Oregon.' Defendant denied this. The only evidence introduced on this question was a certified copy of Idanha's Proclamation of Incorporation and a copy of the charter, bearing the certificate of the librarian of the Supreme Court. The defendant contends that the incorporation and charter must be declared void because of Idanha's failure to prove that the preliminary proceedings necessary to a valid charter enactment or incorporation were regularly performed. We disagree.

Under ORS 41.360(15) there is a disputable presumption that 'official duty has been regularly performed.' Included within this general category is the presumption that where a final act can be done only after the performance of prior acts, proof of the final act raises a presumption that the prior proceedings were regularly performed. Barclay v. State Bd. of Education, 244 Or. 294, 417 P.2d 986 (1966); School District No. 17 of Sherman County v. Powell, 203 Or. 168, 189, 279 P.2d 492 (1955); State v. Deschutes County, 88 Or. 661, 173 P. 158 (1918); State ex rel. v. Port of Tillamook, 62 Or. 332, 124 P. 637, Ann.Cas.1914C 483 (1912). This presumption is applicable to the present case, since the incorporation and charter enactment were both final acts which could be validly accomplished only after the regular performance of required preliminary proceedings. Idanha's proof of the final acts established a prima facie case that the preliminary proceedings had been regularly performed and, therefore, that the incorporation and charter were valid.

We are bound to find in accordance with this presumption unless sufficient evidence is introduced to overcome the presumption. Defendant relies solely upon the fact that the records of the enactments did not affirmatively show that the prerequisites of the enactments had been regularly performed. As there is no requirement, statutory or otherwise, that the record affirmatively show that these steps have been performed, the mere silence of the record is not evidence of noncompliance.

We hold that Idanha was validly incorporated and that its charter was lawfully enacted. Greenberg v. Lee et al., 196 Or. 157, 183--184, 248 P.2d 324, 35 A.L.R.2d 567 (1952); Young v. Galloway, 177 Or. 617, 164 P.2d 427 (1945); Kershaw et al. v. City of Willamina et al., 119 Or. 543, 250 P. 235 (1926); Emmons v. Southern Pac. Co., 97 Or. 263, 191 P. 333 (1920); Portland v. Yick, 44 Or. 439, 75 P. 706, 102 Am.St.Rep. 633 (1904).

III

The validity of Idanha's charter is further attacked on the ground that the charter does not contain a legally sufficient description of the city's boundaries and that such deficiency is fatal to the validity of the charter. The charter provides:

'The city shall include all territory encompassed by its boundaries as they now exist or hereafter are modified by voters, by the council, or by any other agency with legal power to modify them * * *.' Section 3.

It is clear that no municipal corporation may validly exist without boundaries sufficiently defined so as to render it possible to determine the precise area included within, 2 McQuillin, Municipal Corporations 287, § 7.04 (3d ed 1966). However, Idanha's boundaries are not in doubt. A metes and bounds description of the original boundaries of Idanha is included in its 1949 Proclamation of Incorporation. The only change in these boundaries was an expansion pursuant to a 1968 annexation. A metes and bounds description of the territory annexed is included in the 1968 Proclamation of Annexation. Certified copies of each of these proclamations were admitted into evidence.

Defendant has not cited, nor have we found any authority for the proposition that a home rule charter without a sufficient description of the city's boundaries is void. He relies on Cooke v. Portland, 69 Or. 572, 577, 139 P. 1095, 1096 (1914), wherein it was said:

'* * * It is manifest that a description of the boundaries of a city is an essential element of its fundamental law. It is impossible to conceive of a city charter which would not contain provisions of that kind limiting its territorial jurisdiction * * *.'

We do not feel that this statement is dispositive as to home rule charters, as the charters predominant at the time Cooke was decided were legislative charters. These charters were granted by special acts of the legislature. They created the city and in the same instrument specifically defined its powers. While it is necessary that an instrument which confers corporate existence upon a city described its boundaries, it does not follow from this that a home rule charter must also describe the city's boundaries. The corporate existence of a city enacting a home rule charter cannot be dependent on that charter, since a city must be validly incorporated to enact such a charter. Under Oregon Constitution, Art. XI, § 2, only the legal voters of a city may enact a home rule charter. We see no legitimate reason why all of the authority of a city must be contained in the charter. See, Portland Baseball Club v. Portland, 142 Or. 13, 18 P.2d 811 (1933); Grants Pass v. Rogue River P.S. Corp., 87 Or. 637, 171 P. 400 (1918).

Assuming without deciding that the reference made in Idanha's charter to the boundaries was legally insufficient, we hold that this exclusion did not affect the validity of the charter.

IV

Idanha's powers are derived from its home rule charter enacted in 1965 pursuant to Oregon Constitution, Art. XI, § 2, and Art. IV, § 1a, which at that time, respectively, provided:

'* * * 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 * * *.' Art. XI, § 2.

'* * * 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 * * *.' Art. IV, § 1a (now Art. IV, § 1(5)).

The grant made by Oregon Constitution, Art. XI, § 2, has been construed by the courts to make available to cities all of the powers which the legislature could validly confer upon them. Davidson Baking Co. v. Jenkins et al., 216 Or. 51, 337 P.2d 352 (1959); Wilson v. City of Medford et al., 107 Or. 624, 215 P. 184 (1923); State v. Port of Astoria, 79 Or. 1, 154 P. 399 (1916); Robertson v. Portland, 77 Or. 121, 149 P. 545 (1915).

In Wilson v. City of Medford et al., supra, 107 Or. at 645, 215 P. at 191, the court said:

'The whole sum of intramural power is set at large by the state Constitution (article 4, § 1a, and article 11, § 2), and the legal voters of any city may, by amending their existing charter or by the enactment of a new charter, reach out and take either all or only a part of that whole sum of power * * *.'

It is clear from this that a city's charter may authorize it to exercise all powers properly available to municipal government. The question is to what extent may these powers be authorized by a general grant of power. Idanha's charter provides:

'The city shall have all the powers which the constitution, statutes and common law of the United States and this state expressly grant or allow municipalities, as fully as though this charter specifically enumerated each of those powers.'

In Davidson Baking Co. v. Jenkins et al, sup...