Horner's Market, Inc. v. Tri-County Metropolitan Transp. Dist.
| Decision Date | 02 July 1970 |
| Docket Number | TRI-COUNTY |
| Citation | 90 Adv.Sh. 1681,471 P.2d 798,256 Or. 124 |
| Parties | HORNER'S MARKET, INC., an Oregon corporation, William S. Burghardt and Ellen Burghardt, husband and wife, and all persons, firms and corporations similarly situated, Petitioners, v.METROPOLITAN TRANSPORTATION DISTRICT of Oregon, an Oregon municipal corporation, and Keith Hansen, its general manager, Department of Revenue, State of Oregon, and Charles H. Mack, its Director, Defendants. |
| Court | Oregon Supreme Court |
Robert Y. Thornton, Salem, submitted a brief for petitioners.
John D. Mosser, Donald J. Morgan, Wood, Wood, Tatum, Mosser & Brooks, John R. Hay, Davies, Biggs, Strayer, Stoel & Boley, Verne L. Newcomb, Jack B. Schwartz, and Sabin, Newcomb, Sabin & Meyer, Portland, submitted a brief amici curiae in support of petitioners' petition for review.
Before O'CONNELL, C.J., and McALLISTER, SLOAN, DENECKE, HOLMAN, TONGUE and HOWELL, * JJ.
Plaintiffs seek to enjoin defendants from collecting an employer payroll tax levied against plaintiffs. Plaintiffs appealed to the Court of Appeals from a decree of the trial court dismissing the suit. The Court of Appeals affirmed the trial court decree, 1 whereupon plaintiffs filed this petition for review. We affirm.
Ordinarily we do not set forth in a written opinion the reasons for our denial of a petition for review. Where, however, a question of great public importance is presented, we regard it as our duty to set forth the reasons for denying the petition for review.
We shall deal first with plaintiffs' contentions that ORS 267.105 constitutes an unconstitutional delegation of legislative power and a disenfranchisement of those persons in the district who are not residents of the city of Portland. That section provides, in part, that:
'(1) The governing body of the most populous city in a standard metropolitan statistical area may by resolution propose creation of a mass transit district, if that city has a local transit system and if the governing body finds that area-wide mass transit needs cannot be met by local transit operation.'
Although this section is cast in terms of a proposal by the city to create the district, the practical effect of the statute is to vest in the city the power to create the district inasmuch as there is no other condition precedent to the existence of the district except the appointment of the members of a board of directors by the Governor, a duty which is imposed upon the Governor in mandatory terms.
We have, then, a power vested in the city to subjugate persons outside the city to certain controls and burdens, including the burden of taxation, imposed by the district board without affording such persons a voice in deciding whether these burdens should be imposed. 2
There could be no question of the power of the legislative assembly to directly create a mass transit district comprising the same area as that involved in the present case without providing for the intervening action of the city. 3 The legislature must have felt, however, that many of the problems incident to the creation of a mass transit district would be focalized in the city itself and that the city should therefore have, in effect, the power to veto the existence of a district if the city felt that a mass transit district would be inimical to the city's interests.
There would be no practical way for the legislature, at the time of enacting legislation of the character under consideration, to know what impact it might have in the various metropolitan districts in the state. In such circumstances the most feasible method of providing for the necessary flexibility in carrying out the legislative policy is to delegate the decision to those whose interests are most seriously involved, and who are best equipped to decide whether the machinery designed by the legislature for the solution of the mass transit problem should be set in motion.
The legislative assembly's decision to vest in the affected cities the election to make operative Chapter 643 is, in itself, as much a legislative policy determination as the decision to deal with the mass transit problem in the first place, and were we to strike the delegation down we would be encroaching upon a legitimate legislative domain.
It is contended that the delegation to the city of the power to create the district without permitting the inhabitants of the district outside the city to vote on the question of the creation of the district violates the principle announced in the so-called 'one man, one vote' cases. 4
The scope of the principle announced in those cases is not clear. A citizen does not have a constitutional right to vote on every question his government finds it necessary to resolve. As we have already observed, the legislative assembly could have created the district directly without calling for any action by the city. The district could be so created without the consent of the inhabitants within the district. The legislature could also make the creation of the district contingent upon the existence of certain facts or the occurrence of certain events not involving the decision-making process of the city council. Thus, it could provide that the district would come into existence if it was found that the transportation facilities serving the most populous city in the area were inadequate to meet the needs of the public. The legislature could delegate that fact-finding function to the city involved.
The delegation of the power to the city under ORS 267.105 undoubtedly contemplated that the city's decision would be made in part at least upon the basis of its appraisal of the existing mass transit problem. But it must be admitted that since the city's interests were involved, the delegation would make it possible for the city to make the decision as to whether the district was to be created turn upon self-serving considerations. However, the most that the city can do under the statute is to say that a district is to exist. Once the district is created the city has no power to make any decisions on mass transit problems, the power to make such decisions being vested in a district board representing the whole district.
The statute commands the Governor to make the appointments of the members of the district board in a manner that will assure, as far as possible, the proportionate representation of the inhabitants in various parts of the district. However, it must be conceded that once the district is created certain burdens may, through the action of the district board, fall upon certain inhabitants of the district who had no voice in deciding whether these burdens should arise.
Leaving aside for the moment the question of the applicability of the 'one man, one vote' cases, it would seem to us that if the legislative assembly could create the district by a simple declaration in the statute, the legislative assembly could also vest in another body, such as the city or its electorate, the power to create the district unless the preclusion of others in the district from participating in the decision-making process presented dangers of discrimination and inequality of such magnitude as to override the necessity for delegating the power to a part only of the voters in the area. It is not clear whether such a weighing process has any relevance in the application of the 'one man, one vote' principle. If it were relevant, we would regard the danger of discrimination through the city's action as minimal and we would therefore consider the choice given to the city properly delegable.
However, even if the 'one man, one vote' principle does not permit a consideration of the legislative necessity for a delegation of the power, we understand the principle as having no application where the power to make the decision implementing legislative policy is delegated to an independent entity rather than submitted to the electorate for its decision through the election process. This, we understand, is the import of Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967).
In the present case the power to decide whether a mass...
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...respects, I concur in the opinion of the court. 1 See Horner's Market v. Tri-County Trans., 2 Or.App. 288, 467 P.2d 671, aff'd, 256 Or. 124, 471 P.2d 798 (1970).2 However, it should be noted that the evidence was admitted under the Rule and upon review reflects only that the phrase 'for cau......
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...court. Or. Const.Orig. art. VII, § 9. See Horner's Mkt. v. Tri-Cty. Met. Transp. Dist., 2 Or.App. 288, 467 P.2d 671, aff'd 256 Or. 124, 471 P.2d 798 (1970), disapproved on other grounds Multnomah Cty. v. Mittleman, 275 Or. 545, 557, 552 P.2d 242 (1976) (existence of transportation district ......