Appeal
from Circuit Court, Multnomah County; J.B. Cleland, A.F
Sears, Jr., A.L. Frazer, and M.C. George, Judges.
Suit by
A.A. Kadderly and others against the city of Portland and
others for an injunction. Demurrers to the complaint were
sustained, and plaintiffs appeal. Affirmed.
The
constitution of this state (article 17) provides:
"Section
1. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislative assembly, and
if the same shall be agreed to by a majority of all the
members elected to each of the two houses, such proposed
amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and referred to the
legislative assembly to be chosen at the next general
election; and if, in the legislative assembly so next
chosen, such proposed amendment or amendments shall be
agreed to by a majority of all the members elected to each
house, then it shall be the duty of the legislative
assembly to submit such amendment or amendments to the
electors of the state, and cause the same to be published
without delay at least four consecutive weeks in several
newspapers published in this state; and if a majority of
said electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.
"Sec
2. If two or more amendments shall be submitted in such
manner that the electors shall vote for or against each of
such amendments separately, and while an amendment or
amendments which shall have been agreed upon by one
legislative assembly shall be awaiting the action of a
legislative assembly, or of the electors, no additional
amendment or amendments shall be proposed."
Four
constitutional amendments, known as the "Repealing
Amendment," the "Municipality Indebtedness
Amendment," the "Irrigation Amendment," and
the "Judicial Amendment," were proposed in and
agreed to by the legislative assembly of 1893 (Sp.Laws 1893
pp. 874, 876, 877, 879). They were referred to the
legislative assembly next chosen, and agreed to by it
(Sp.Laws 1895, pp. 611, 612, 613). The latter assembly
however, failed to provide for the submission of any of the
amendments to the electors of the state. Another amendment
providing for equal suffrage, was proposed in and agreed to
by the legislative assembly of 1895 (Sp.Laws 1895, p. 612).
In 1897 there was no assembly of the Legislature, because the
members elected thereto failed to organize, and never met in
legislative session. The members of the legislative assembly
chosen in 1898 met in regular session in January, 1899,
agreed to the equal suffrage amendment which had been
proposed in 1895 (Sess.Laws 1899, p. 1123), and passed an act
submitting it and the four amendments previously agreed to by
the legislative assemblies of 1893 and 1895 to the electors
of the state (Sess.Laws 1899, p. 143), and they were all
rejected by popular vote. An amendment known as the
"Initiative and Referendum Amendment" was duly
proposed and agreed to by the legislative assemblies of 1899
and 1901 (Sess.Laws 1899, p. 1129; Sess.Laws 1901, p. 476),
and an act passed by the latter assembly, submitting it to
the electors at the June election in 1902 (Sess.Laws 1901, p.
4), when it was ratified by them. The amendment reads as
follows:
"Section
1 of article 4 of the Constitution of the state of Oregon
shall be, and hereby is, amended to read as follows:
"Section
1. The legislative authority of the state shall be vested
in a legislative assembly, consisting of a Senate and House
of Representatives, but the people reserve to themselves
power to propose laws and amendments to the Constitution
and to enact or reject the same at the polls, independent
of the legislative assembly, and also reserve power at
their own option to approve or reject at the polls any act
of the legislative assembly. The first power reserved by
the people is the initiative, and not more than eight per
cent. of the legal voters shall be required to propose any
measure by such petition, and every such petition shall
include the full text of the measure so proposed.
Initiative petitions shall be filed with the Secretary of
State not less than four months before the election at
which they are to be voted upon. The second power is the
referendum, and it may be ordered (except as to laws
necessary for the immediate preservation of the public
peace, health, or safety,) either by petition signed by
five per cent. of the legal voters, or by the legislative
assembly, as other bills are enacted. Referendum petitions
shall be filed with the Secretary of State not more than
ninety days after the final adjournment of the session of
the legislative assembly which passed the bill on which the
referendum is demanded. The veto power of the Governor
shall not extend to measures referred to the people. All
elections on measures referred to the people of the state
shall be had at the biennial regular general elections,
except when the legislative assembly shall order a special
election. Any measure referred to the people shall take
effect and become the law when it is approved by a majority
of the votes cast thereon, and not otherwise. The style of
all bills shall be: 'Be it enacted by the people of the
State of Oregon.' This section shall not be construed
to deprive any member of the legislative assembly of the
right to introduce any measure. The whole number of votes
cast for Justice of the Supreme Court at the regular
election last preceding the filing of any petition for the
initiative or for the referendum shall be the basis on
which the number of legal voters necessary to sign such
petition shall be counted. Petitions and orders for the
initiative and for the referendum shall be filed with the
Secretary of State, and in submitting the same to the
people he, and all other officers, shall be guided by the
general laws and the act submitting this amendment, until
legislation shall be especially provided therefor."
After
the adoption of this amendment, and in January, 1903, the
Legislature passed an act, approved January 23d (Sp.Laws
1903, p. 3), for the incorporation of the city of Portland,
the emergency clause of which recites as follows:
"Sec.
427. Whereas there are several bridges upon important
thoroughfares and car lines in the city of Portland, now
old and in a dilapidated and ruinous condition, dangerous
to life and property; and whereas there is an immediate
necessity for the construction of new bridges in the place
of said old ones, in order to provide for the safety of the
people of said city; and whereas there are no ways or means
by which, under the present charter of said city, new
bridges can be constructed in place of the old ones; and
whereas the foregoing act provides ways and means available
at once for the construction of new bridges; and whereas
there is otherwise a necessity for the immediate adoption
of the foregoing act to insure the health, peace, and
safety of the people of Portland, therefore, this act shall
take effect and be in force from and after its approval by
the Governor."
Sections
400 and 401 of this charter are as follows:
"Sec
400. Whenever an assessment for the opening, altering, or
grading of any street, or construction, reconstruction, or
repair of any sewer, or for any local improvement which has
been or may hereafter be made by the city, has been or shall
hereafter be set aside, annulled, declared, or rendered void
or its enforcement refused by any court of this state, or any
federal court having jurisdiction therein, whether directly
or by virtue of any decision of such court, or when the
council shall be in doubt as to the validity of such
assessment, or any part thereof, the council may, by
ordinance, make a new assessment or reassessment upon the
lots, blocks, or parcels of land which have been benefited by
such improvement to the extent of their respective and
proportionate shares of the full value thereof. Such
reassessment shall be based upon the special and peculiar
benefit of such improvement to the respective parcels of land
assessed, at the time of its original making, but shall not
exceed the amount of such original assessment. Interest
thereon from the date of delinquency of the original
assessment may be added at the discretion of the council.
Such reassessment shall be made in an equitable manner, as
nearly as may be in accordance with the law in force at the
time it is made; but the council may adopt a different plan
of apportionment of benefits when, in its judgment, essential
to secure an equitable assessment. The proceedings required
by this charter to be had prior to the making of the original
assessment shall not be required to be taken or had within
the intent of this section. Such reassessment shall be made
and shall become a charge upon the property upon which the
same is laid, notwithstanding the omission, failure, or
neglect of any officer, body, or person to comply with the
provisions of this charter connected with or relating to such
improvement and assessment, and notwithstanding the
proceedings of the council, executive board, board of public
works, or any officer, contractor, or other person connected
with such work, may have been irregular or defective, whether
such irregularity be jurisdictional or otherwise. Such
reassessment shall not be made in case of a street
improvement wherein a remonstrance sufficient in law to
defeat the same shall have been filed. The council shall, by
resolution, declare the district that will be benefited by
the improvement for which the reassessment is made, and shall
direct the auditor or city engineer to prepare a preliminary
assessment upon the property included therein...
