Haines v. City of Forest Grove

• Citation: 103 P. 775,54 Or. 443
• Parties: HAINES v. CITY OF FOREST GROVE et al.
• Decision Date: 26 August 1909
• Court: Supreme Court of Oregon

103 P. 775

54 Or. 443

HAINES v. CITY OF FOREST GROVE et al.

Supreme Court of Oregon

August 26, 1909

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Action by E.W. Haines against the City of Forest Grove and others. From a decree entered on an order sustaining a general demurrer to the complaint, plaintiff appeals. Affirmed.

John M. Wall, for appellant.

W.H Hollis, for respondents.

KING J.

This is an appeal from a decree entered upon an order sustaining a general demurrer to the complaint. The suit was instituted to test the right of the city of Forest Grove to issue and sell bonds for the securing and constructing of a water system. The proceeding involves the validity of the city charter and the regularity of the proceedings thereunder, in reference to which it is contended that there has been a failure to comply with the general law of 1907 (Gen.Laws 1907, p. 398, c. 226) providing for the carrying into effect of the initiative and referendum powers reserved by the people in section 1 and section 1a of article 4 of the Constitution in regard to municipal legislation.

Taking them in their logical order, the first point presented for consideration questions the regularity of the action of the committee appointed to draft the charter under which it is proposed to issue bonds. It is argued that since the report of the committee was approved by resolution, instead of by ordinance, the action thus taken was not in compliance with the provisions of the act (Gen.Laws 1907, p. 398, c. 226) on the subject. Section 12 of the act provides, inter alia, that if any ordinance, charter, or amendment to the charter of any city shall be proposed by petition, such petition shall be filed with the city clerk, auditor, or recorder, who shall transmit it to the next session of the council; that the council shall either ordain or reject the same as proposed, within 30 days thereafter; but if rejected or no action is taken thereon within that time, it shall be submitted to the voters of the city or town at the next ensuing election. It will thus be seen that the manner of proceeding is clearly indicated in the general act. We do not understand that, merely because the word "ordain" is used, this necessarily implies that the proposed charter must first have been approved by the passage of an ordinance. The word "ordain," as used in this connection, is employed in the sense of "adopt" or "approve" (Words & Phrases, p. 5016); that is to say, the council may either approve or reject the proposed charter or ordinance, after which proceedings may be taken as therein directed. In view of the language used in the act and no specific requirements to the contrary appearing either in the Constitution as amended or in the general law on the subject, we are of the opinion that the adoption by resolution was sufficient, and that error cannot be predicated thereon.

The next contention is that but 55 days intervened between the time of the adoption of the resolution approving the charter--including the filing of the same with the clerk for submission to the voters--and the date of the election at which it was voted upon. One of the averments in the complaint would indicate that the time was insufficient; but a subsequent allegation therein discloses that the proposed charter was ordained, or approved, and filed with the clerk on November 11, 1908. Now, since it further appears that the election at which it was adopted by a vote of the people occurred...