Cooke v. City of Portland

• Decision Date: 24 March 1914
• Citation: Cooke v. City of Portland, 69 Or. 572, 139 P. 1095 (Or. 1914)
• Parties: COOKE v. CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

139 P. 1095

69 Or. 572

COOKE v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

March 24, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Suit by O. F. Cooke against the City of Portland and others. From a decree for defendants, plaintiff appeals. Reversed and rendered.

In Multnomah county at the times mentioned in the pleadings herein, there were two rural election precincts known as Sylvan No. 178, and Mount Zion No. 179. On August 19, 1910, a petition was presented to the common council of the city of Portland said to be signed by 15 per cent. of the qualified voters residing in a part, but not in the whole, of each of those precincts, asking that those portions of their territory named be annexed to the municipality of the city of Portland. On September 14, 1910, the council of the city of Portland passed a resolution whereby it resolved: "That the matter of the annexation of the territory described in the foregoing petition be and hereby is submitted to the qualified legal voters residing in the territory so designated, at the next general election held therein, said election to be held on the 8th day of November, 1910, for their adoption or rejection; and each elector who shall vote upon said proposed amendment shall vote yes, or no, in answer to the question: 'Shall additional territory in sections 5, 6, 7, and 8, T. 1 S., R. 1 E. of W. M., be annexed to the city of Portland, Multnomah county, Oregon, and shall section 12 of the charter of the city of Portland be amended accordingly?"' The question was not in any manner submitted to the legal voters of the city. No notice of the submission of the question was given to the voters in the outlying territory involved. The only notice of the election was the one issued by the county clerk to the effect that a general election would be held in the precincts for state district, county, and precinct officers, and that 32 public measures would be voted upon, without mentioning the nature of those measures, or otherwise describing them. The ballot used at the election containing the names of candidates, a sample of which is in evidence, had noted thereon 32 public measures for the consideration of the electors; but none of them in any way affected the matter in suit here. At the election there were in the hands of the judges of election the regular ballot provided by the county authorities for the general state elections held on that date, but they contained nothing whatever alluding to the acquisition of new territory by the city of Portland. Besides these, there were smaller ballots, presumably furnished by the city authorities, which contained only the question of the annexation mentioned. No data besides the description on this last-named ballot were placed in the hands of the judges of election whereby they could determine whether or not the electors offering to vote resided in the territory to be annexed. At the election all voters presenting themselves were furnished with both ballots, and the votes of all on the question were received indiscriminately without reference to whether the voter resided within or without the proposed addition.

The plaintiff, a resident and taxpayer within the territory in question, appearing for himself and 29 other like individuals, alleged in detail in his complaint that of which the foregoing is a summary; stated that the bonded indebtedness of the city of Portland and the yearly expenses of maintaining that municipality are very great, and that, if the annexation were made, he and the others in like situation would be greatly damaged, in that they would be compelled to pay additional taxes without corresponding benefit; and prayed the court to restrain the officials of the city from admitting the proposed territory within its limits, and from amending the section of the charter describing the boundary that the election mentioned be declared null and void, and for general relief. Without alleging new matter, the answer traverses the complaint in important particulars. From a decree dismissing the suit the plaintiff has appealed.

H. B Dickinson, of Portland, for appellant. Henry A. Davie, of Portland (Frank S. Grant and John F.

Cahalin both of Portland, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

The proceedings in question are said to have been carried on under the act of the legislative assembly approved January 23, 1903, entitled "An act to incorporate the city of Portland, Multnomah county, state of Oregon, and to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith." Section 12 of that statute defines the domain of the city of Portland by metes and bounds, with reference to legal subdivisions of the public surveys. Article 4 of the act establishes a procedure for the annexation of territory. The initial step of that process is a petition filed in the office of the city auditor, signed by 15 per cent. of the qualified voters of the outlying territory, describing it, defining its boundaries, and praying for the addition of the same to the city. After consideration, the council by a two-thirds vote may pass a resolution 30 days before the next general election providing for the submission of the question to the qualified voters residing in the territory to be annexed. When the proposed addition includes a part, but not the whole, of any voting precinct, the county clerk of Multnomah county is required to "furnish a sufficient number of ballots to supply the voters of such precinct who reside within the territory so to be annexed, upon which shall be printed the question of the annexation of such territory, and shall supply for the voters of such precinct who do not reside within said territory ballots upon which such question shall not appear." The city auditor must furnish to the judges of the election a plat and description of the territory to be annexed showing the portion thereof included within the limits of each election precinct. The judges of the election are to ascertain the residence of each voter applying for a ballot and furnish only to electors residing within the proposed annexation the ballot containing that question. In part, section 16 of the act says: "In case a...