J. Peterkort & Co. v. East Washington County Zoning Dist.

• Decision Date: 06 September 1957
• Citation: 313 P.2d 773,211 Or. 188
• Parties: J. PETERKORT & CO., an Oregon corporation; Bertha A. Peterkort and J. Peterkort, husband and wife, Respondents, v. EAST WASHINGTON COUNTY ZONING DISTRICT, a purported zoning district in Washington County, Oregon; Dorothy Shaffer, George W. Wood, Edward Victor Brotherhood and Earl Briggs, Commissioners of East Washington County Zoning District, Appellants, Washington County, Oregon, a Municipal corporation; Henry Haase, Helen Steinke, Assessor of Washington County, Oregon, R. H. Busch, Sheriff of Washington County, Oregon; and Maud Boscow, Treasurer of Washington County, Oregon, Defendants.
• Court: Oregon Supreme Court

Page 773

313 P.2d 773

211 Or. 188

J. PETERKORT & CO., an Oregon corporation; Bertha A Peterkort and J. Peterkort, husband and wife, Respondents, v. EAST WASHINGTON COUNTY ZONING DISTRICT, a purported zoning district in Washington County, Oregon; Dorothy Shaffer George W. Wood, Edward Victor Brotherhood and Earl Briggs Commissioners of East Washington County Zoning District, Appellants Washington County, Oregon, a Municipal corporation; Henry Haase, Helen Steinke, Assessor of Washington County, Oregon, R. H. Busch, Sheriff of Washington County, Oregon; and Maud Boscow, Treasurer of Washington County, Oregon, Defendants.

Supreme Court of Oregon.

Argued and Submitted June 25, 1957.

Decided July 3, 1957.

Rehearing Denied Sept. 6, 1957.

See 314 P.2d 912.

Maurice D. Sussman, Portland, argued the cause for appellants. With him on the brief were Alexander Schneider and Gilbert Sussman, Portland.

Carrell F. Bradley, Hillsboro, argued the cause for respondents. On the brief were Bush & Bradley, Hillsboro.

Before PERRY, C. J., and ROSSMAN, LUSK, BRAND, WARNER and McALLISTER, JJ.

LUSK, Justice.

The plaintiffs, J. Peterkort & Co., an Oregon corporation; Bertha A. Peterkort and J. Peterkort, husband and wife, brought this suit against the East Washington County Zoning District, the commissioners of the district and certain county officials to obtain a decree declaring the zoning district to have been invalidly organized. All the plaintiffs are owners of real property and taxpayers in the district, and Mr. and Mrs. Peterkort reside therein. The court entered a decree declaring the district invalid and of no effect on the ground that the statute under which the defendant was organized is unconstitutional. By the terms of the decree the commissioners of the district were restrained from exercising any powers as such; the county assessor of Washington County was restrained from extending onto the tax rolls taxes on behalf of such district; the sheriff of Washington County from collecting taxes on behalf of the district; and the county treasurer from paying any warrants issued or drawn by the district. The zoning district and the commissioners thereof have appealed from the decree.

The creation, powers and functions of zoning districts outside of incorporated cities, known as county zoning districts, are provided for by Oregon Laws 1947, ch. 558, now codified as ORS 215.210 to 215.450, both inclusive. The procedure for forming a county zoning district is, briefly, as follows: Upon the presentation of a petition signed by 10 or more residents and freeholders within the proposed district setting forth the boundaries thereof and praying that it be organized as a zoning district within the county, the county court, after notice, shall hold a hearing thereon, and, if it approve the petition, shall order an election to be held in the proposed district. ORS 215.230, 215.240, 215.250 and 215.260. The question here turns upon the constitutionality of ORS 215.260(2), which, at the time of the election at which the district was organized, to wit, November 2, 1954, read as follows:

'The order must fix the day of election, which must be held not less than 30 days from the date of the order, and must state that at the election there will be submitted to the resident freeholders of the district the proposition of whether or not the resident freeholders desire to form the district.'

The contention of the plaintiffs and the ground of the circuit court's decision is that the provision of the foregoing section, which limits the right to vote on the proposition to 'the resident freeholders' of the district conflicts with Art. II, § 2, of the state constitution and is, therefore, void.

Article II, § 2, reads as follows:

'In all elections, not otherwise provided for by this constitution, every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, provided such citizen is able to read and write the English language. The legislature, or the people, through the initiative, may prescribe the means of testing the ability of such citizen to read and write the English language. Any act which has been passed by the legislative assembly, and which purports to execute and carry into effect the provisions of this section, shall be deemed to have been passed pursuant to, and in accordance herewith, and hereby is ratified, adopted and confirmed, the same as if enacted after the adoption of this amendment. The legislative assembly, or the people through the initiative, may by law require that those who vote upon questions of levying special taxes or issuing public bonds shall be taxpayers.'

Any citizen having the qualifications set forth in the first sentence of the foregoing section is entitled to vote at any election except that where the election is 'upon questions of levying special taxes or issuing public bonds' the legislature may constitutionally provide that only 'taxpayers' shall vote. By 'taxpayers' in this context we assume, as do counsel, is meant the same thing as freeholders.

The last sentence of Art. II, § 2, was an amendment approved by the people at the regular election held November 8, 1932 (Oregon Laws, Special and Regular Sessions, 1933, p. 5), and, as pointed out in the defendants' brief, was apparently proposed and adopted because of the decision of this court in Loe v. Britting, 132 Or. 572, 287 P. 74, decided in 1930, which held unconstitutional as in conflict with Art. II, § 2, an act of the legislature passed in 1929 (Oregon Laws 1929, ch. 281), which provided that no person should be allowed to vote upon the question of levying a special tax or issuing public bonds unless such person was a taxpayer upon real or personal property situated within the particular tax-levying or bond-issuing district. Elections in incorporated cities and towns were excepted from the provisions of this statute. The question in the Loe case was whether the plaintiff, a duly registered legal voter in Multnomah County, was entitled to vote upon the question of whether the county should issue bonds for the construction of a bridge across the Willamette River. The court held that an election upon such a question was an election within the meaning of Art. II, § 2. Hence, the legislative attempt to prohibit otherwise qualified voters who were not taxpayers from voting at such an election clashed with the provisions of the constitution declaring who are qualified electors and was necessarily struck down. This history and the Loe case seem to be relied on by the defendants, but it seems to us that, to the...