Kalich v. Knapp

• Decision Date: 21 December 1914
• Citation: 73 Or. 558,145 P. 22
• Parties: KALICH v. KNAPP.
• Court: Oregon Supreme Court

145 P. 22

73 Or. 558

KALICH v. KNAPP.

Supreme Court of Oregon

December 21, 1914

In Banc. On petition for rehearing. Denied, and judgment of trial court reversed.

For former opinion, see 142 P. 594.

McBride and Burnett, JJ., dissenting.

Will R. King, of Washington, D. C., for appellant. R. W Wilbur, of Portland (Wilbur, Spencer & Dibble, of Portland on the brief), for respondent.

McNARY, J.

In the original opinion of this case, reported in 142 P. 594, the majority of the court composing department No. 1 decided that section 2 of article 11 of the Constitution withheld the Legislature from amending or repealing the charter of any city, or the ordinances enacted pursuant thereto in respect to those matters peculiar to municipal regulation, though reserving that power to the sovereignty through the initiative and referendum provision of the fundamental law. At a rehearing of the case, counsel for defendant presented argument for a reversal, which is clearly embodied in the scholarly dissenting opinions of Mr. Chief Justice McBRIDE and Mr. Justice BURNETT, to which our attention will now be briefly given. Owing to the importance of the questions suggested and their grave bearing upon future legislation, we think it not amiss succinctly to state our position anew. Looking backward over the path of our state legislation, we observe that the organic law primarily contained the following clause:

"Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes. All laws passed pursuant to this section may be altered, amended, or repealed, but not so as to impair or destroy any vested corporate rights." Const. Oregon, § 2, art. 11.

With pleasing fidelity to this provision of the Constitution, the recurring legislative assemblies created municipal corporations, and lavishly bestowed their time upon the amendment of particular charters until a remedy was sought and obtained by the people in the adoption of the constitutional provision under consideration.

"Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon." Section 2, art. 11, as amended.

A comparison of the two provisions of the fundamental law will at once reveal the intention of the voters and the evil they purposed to correct. The original section of the Constitution permitted the Legislature to create municipal life by special law, and to clothe it with a charter which could be altered or repealed at any legislative session, when either the municipal welfare or political exigencies required.

Over the municipality the Legislature had exclusive and unrestrained control, and, having the power to create, so it had the power to modify or destroy. In fact, the ultimate sovereign power of the state over its cities and towns was unquestioned. To remedy the many ills flowing from the absolute dependency of cities upon the autocratic will of the Legislature and its oft-repeated interference in matters of local concern, the people conceived the idea of city sovereignty as a separate attribute of state sovereignty consequently we have, by the adoption of the constitutional provision under consideration, vested our cities with more political power than they heretofore possessed since the formation of our state government. The electors now are, subject to the Constitution and the criminal laws not affecting local regulation, made the legislative assembly to enact and amend the local laws which should regulate their municipal affairs. In the former opinion, this court said:

"By the force of section 2 of article 11 of the Constitution, the electors of municipalities are, subject to the Constitution and criminal laws and such general laws as may be enacted by the Legislature affecting the relation of the state to the locality, made the legislative assembly to enact the laws germane to the general purpose and object of the municipality, free from legislative molestation, which autonomy in a sense constitutes a sovereign city, subject at all times, however, to the supreme will of the state reserved by the people of the state through the initiative and referendum provision of the fundamental law."

In the studiously considered case of Branch v. Albee, 142 P. 598, a majority of this court reaffirmed the same construction, saying through Mr. Justice Ramsey:

"Said section, as amended, first withdraws from the legislative assembly all power that it previously had to enact, amend, and repeal charters, and then confers upon the legal voters of every city and town power to enact and amend their charters, and this power, thus conferred upon cities and towns, is made subject to the Constitution and the criminal laws of the state. It is not made subject to the civil laws of the state. The conclusion seems to be irresistible that the people, by the adoption of said amendment, intended to withdraw from the legislative assembly all power that it previously possessed to enact, amend, or repeal charters or acts incorporating cities or towns, and to confer upon the legal voters of cities and towns all of said power, except the power to repeal charters. If effect is given to the language of this amendment, no other conclusion appears to be tenable." 142 P. 600.

Referring to the same provision of the Constitution in the case of Thurber v. McMinnville, 63 Or. 410, 128 P. 43, Mr. Chief Justice McBride said:

"We are of the opinion that the true intent of the amendment above quoted was to give to cities and towns the authority to enact and amend charters affecting property and other rights within the boundaries of such cities and towns, and that, so far as legislation outside of these boundaries is concerned, they must find it elsewhere than in this amendment. Inside their boundaries, and in relation to matters purely local, they are, as regards regulation by the state Legislature, supreme; beyond these boundaries they are invested with no power except that which the Legislature may see fit to grant them in common with all other cities, and under like circumstances."

At this juncture, we deem it prudent carefully to consider the case of City of Portland v. Nottingham, 58 Or. 1, 113 P. 28, on account of its similitude to the one in hand. The point we desire to develop is that this case is an authority for the doctrine enunciated in the original opinion in Kalich v. Knapp, supra, namely, that the Legislature is inhibited by the Constitution from amending the charter of the municipality either by special or general legislation in those matters of local and municipal concern. In January, 1903, the charter of the city of Portland provided, among other things, that a property owner who was displeased at the assessment levied upon his property for a street improvement could appeal to the circuit court, but that the verdict of the jury should be a conclusive determination of the questions giving birth to his grievance. A dispute having arisen between the city and Mr. Nottingham regarding the reassessment of the property of the latter, the remedy provided by the charter provision was invoked, resulting in a verdict for the city, which was set aside by the court and a new trial granted. The city prosecuted an appeal to this court upon the assumption that the Legislature did, at its biennial session in 1907 (Sess. Laws 1907, c. 162, p. 311), adopt an act whereby an appeal was allowable. Considering the vital question whether the Legislature could, by general enactment, amend a charter provision, this court, in a forceful opinion written by Mr. Justice Burnett, said:

"This provision of the Constitution (section 2, art. 11) was adopted by the people at the June election of 1906, and went into effect upon the proclamation of the Governor, June 25th of that year. Its effect is to take from the legislative assembly the right to amend the charter of the city of Portland, although enacted by the legislative assembly itself in January, 1903." Further, section 1(a) of article 4 of the Constitution provides that:

" 'The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts.' These constitutional provisions confer ample and exclusive power upon the people of every municipal corporation to regulate their own affairs respecting municipal legislation and procedure. The legislative assembly cannot pass laws to repeal or amend municipal charters, even by implication, respecting such matters."

After extracting from the Motor Act the criminal element therein contained, we cannot discern any appreciable difference in the principle propounded in these two cases, viz., that the Constitution as it is now built withholds the Legislature from amending any municipal charter by legislation, be it direct or indirect, general or special, which is properly and purely the subject of municipal concern and regulation.

As additional evidence of their political intention to preserve the ancient right of local self-government of municipalities, the people of the state in June, 1906, ingrafted on the Constitution section 1(a) of article 4, which provides:

"The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of

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