City of Portland v. Bingham

• Citation: 307 P.2d 492,209 Or. 575
• Parties: CITY OF PORTLAND, a municipal corporation, acting by and through its Exposition-Recreation Commission, Respondent, v. Mason L. BINGHAM, Chairman, and H. W. Bruck, R. L. Fanning, Mrs. W. H. Copeland and Kenneth L. Crookham, Commissioners, as the Tax Supervising and Conservation Commission of Multnomah County, Appellants.
• Decision Date: 27 February 1957
• Court: Oregon Supreme Court

Page 492

307 P.2d 492

209 Or. 575

CITY OF PORTLAND, a municipal corporation, acting by and through its Exposition-Recreation Commission, Respondent, v. Mason L. BINGHAM, Chairman, and H. W. Bruck, R. L. Fanning,

Mrs. W. H. Copeland and Kenneth L. Crookham, Commissioners,

as the Tax Supervising and Conservation Commission of

Multnomah County, Appellants.

Supreme Court of Oregon, In Banc.

Argued Feb. 21, 1957.

Decided Feb. 27, 1957.

Marian C. Rushing, Chief Deputy City Atty., and Robert T. Mautz, Special Cocounsel, Portland, for the Exposition-Recreation Commission, Portland, argued the cause for respondent. With them on the brief was Alexander G. Brown, City Atty., Portland.

Willis A. West, Chief Civil Deputy Dist. Atty., Portland, argued the cause for appellants. With him on the brief was William M. Langley, Dist. Atty., Portland.

PER CURIAM.

The parties to this appeal, the City of Portland, a municipal corporation, acting by and through its Exposition-Recreation Commission, as plaintiffs, and Mason L. Bingham, Chairman, and H. W. Bruck, R. L. Fanning, Mrs. W. H. Copeland and Kenneth L. Crookham, Commissioners, as the Tax Supervising and Conservation Commission of Multnomah County, as defendants, commenced this proceeding by filing with the court a statement of the case pursuant to ORS, ch. 27, which authorizes the determination of a controversy without suit or action. Their purpose was to obtain a judicial decision interpreting certain provisions of the charter of the City of Portland relative to the powers of the Exposition-Recreation Commission. The case was heard by a panel of three judges of the Circuit Court for Multnomah County, The Honorable James W. Crawford, The Honorable James R. Bain, and the Honorable Paul R. Harris, who rendered an opinion in writing favorable to the contention of the City, and entered a judgment from which the defendants have appealed.

The opinion of the circuit court (with footnotes of our own) follows:

'The Statement of Controversy

'We have before us for interpretation Ch. XIV of the City Charter, containing Sections 14-101 to 14-107, both inclusive (added by vote of the people May 21, 1954) as amended by vote of the people May 18, 1956, 'by adding thereto two sections to be numbered 14-108 and 14-109.' Ch. XIV creates an Exposition-Recreation Commission, Art. 1, Sec. 14-101 as a 'department of the City of Portland.' Sec. 14-102 makes provision for members and service. Sec. 14-103 Powers and Duties, details at length the power and authority of the ER Commission. (The recital of the powers and authority is so detailed and extensive and so well known to all of us that repetition here would serve no purpose.) ¹ Sec. 14-104 provides for the issuance and sale of bonds to be general obligations of the City the proceeds of which shall be expended as therein indicated 'the balance to be placed in a special fund to be known as the E-R Fund and said fund shall be expended on the order of the ER Commission for the purposes set forth in this chapter including * * *' Sec. 14-105 relates to the financial affairs of the Commission. Sec. 14-106 to the use of city facilities and 14-107 to certain exemptions of employees from civil service requirements. Prior to May, 1956 bonds in the amount of $8,000,000 were sold and the proceeds placed in the special fund, supra.

'Section 14.108 reads--'The powers and authority granted the Exposition Recreation Commission by section 14.103 shall be exercised only with respect to acquisition of real property, construction, erection, maintenance and repair of buildings and facilities located easterly of the main channel of the Willamette River.' (Emphasis added.)

'Sec. 14.109 reads--'Use of City Owned Property. In the event that any city property east of the main channel of the Willamette River be selected as a site for an Exposition-Recreation center, the Council shall make such property available to the Exposition-Recreation Commission for the purposes of this act, without charge.' (Emphasis added.)

'Defendants contend Sec. 14.108 amounts to a 'repeal by implication of all other powers previously delegated to said Commission by Sec. 14.103 and that Sec. 14.109 does not reinstate the power of site selection.' That the only powers remaining with the ER Commission are limited to 'acquisition of real property, construction, erection, maintenance and repair of buildings,' provided an east side site is selected and that the power of selection is vested in the City Council. That the voters intended a limitation on the power of the ER Commission.

'Plaintiff contends '* * * the intent of the electorate was to limit only the location of buildings and facilities for the ER Commission and not to limit the powers and authority of the Commission.'

'Both sides agree the situation presents ambiguities (this in the Statement of Controversy and in the briefs) and the panel concurs. Plaintiff asserts the workability of the entire legislation as originally written and as amended or as 'added to' if the construction sought by plaintiff is given; defendants concede (in argument) present unworkability if their ideas of interpretation are followed but suggest the Court might further implement and clarify.

'Following is Paragraph V from the Statement of Controversy.

"Following the May election aforesaid, the Exposition-Recreation Commission on behalf of the City prepared a fiscal budget for the fiscal year 1956-1957 which was presented to the City Council as Budget Committee and by the said Budget Committee to the Tax Supervising Conservation Commission; said budget proposal included estimates of expenditures for assistants and cost of site acquisition and for construction of an exposition-recreation center and services connected therewith; the defendants pursuant to ORS 294.650, ² ordered all estimates of expenditures to be stricken from the said proposed budget except for clerical assistants as administrative expense pending Court determination of the authority and power of the Exposition-Recreation Commission; that in accordance with said order the Exposition-Recreation Commission prepared and the City Council as Budget Committee submitted to the defendants a revised budget containing only office expenses with $5,000 of the funds of the Commission marked as Emergency and Unforeseen Expenditures and the balance of said funds left unappropriated; said revised budget was approved and is the present budget of the City for the Exposition-Recreation Commission'.

'Our Conclusion

'It is our opinion that mention of site selection in Sec. 14.103 authorizing the Commission to acquire title to real property by any appropriate method 'as the Commission shall deem suitable for the site thereof,' confers authority on the Commission to select the site. Site selection is not mentioned in Section 14.108. It is mentioned in Section 14.109. If (as contended) Section 14.108 is to be interpreted as an implied repeal of Section 14.103, save as to the powers expressly reserved in Section 14.108, there was no point in mentioning site selection in Section 14.109. In the statement that the Council shall make any selected city property available without declaring that the Council shall select the site, there arises a clear implication that the Commission shall select the site. Section 14.109 amounts to a reaffirmation of this power previously conferred upon the Commission by 14.103.

'We interpret this legislation as expressing the intent of the voters to limit only the location of the buildings and facilities for ER Commission purposes to the east side ant not to limit the powers or authority of the Commission in any other way. The rules of statutory interpretation here applicable, are so well established that we do not consider it necessary to repeat them nor cite authority therefor. These most pertinent may be said to be the adoption of such interpretation as will give effect to the entire legislation, will not lead to absurd results, will promote the objectives sought and give effect to the declared intent of the voters. And in seeking this intent, which of course is the primary search in cases of this kind, we may consider, where ambiguity exists as here, the history of the legislation from its inception to its present form. From the inception of this controversy the disagreement was addressed to site not to authority; to East side v. West side. This disagreement was presented by the press, radio, litigation, election publicity and word of mouth. We are sure no one could have lived through these days and gained any other impression. 'Judges do not live in a vacuum.' We cannot close our eyes to the obvious nor fail to hear the audible. And this contest was certainly both visible and audible. Nothing was left to the imagination. The untoward results that would follow acceptance of defendants' interpretation are also obvious. If (as contended by defendants) there was an implied repeal stripping the ER Commission of all powers previously specifically conferred save acquisition, construction, erection, maintenance and repair of buildings if the East side site is chosen, then even if an East side site is chosen the ER Commission is emasculated and powers the voters thought they were conferring on the Commission must be exercised elsewhere, if at all. And if (as contended) the City Council now has power to...