Kiernan v. City of Portland

• Decision Date: 31 December 1910
• Citation: 112 P. 402,57 Or. 454
• Parties: KIERNAN v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

112 P. 402

57 Or. 454

KIERNAN v. CITY OF PORTLAND et al.

Supreme Court of Oregon

December 31, 1910

On petition for rehearing. Rehearing denied.

For former opinion, see 111 P. 379.

KING, J.

The principal point suggested by the petition for rehearing is the contention that the people of Oregon have no power, by constitutional provision or otherwise, to deprive the Legislature of the sovereign power to enact, amend, or repeal any charter or act of incorporation for any city or town, and any attempt so to do is void. The constitutional provisions amending article 11, adopted in June, 1906, known as the "Charter Amendments," are as follows:

"Section 1a. The referendum may be demanded by the people against one or more items, sections, or parts of any act of the legislative assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items sections, or parts of an act shall not delay the remainder of that act from becoming operative. 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. The manner of exercising said powers shall be prescribed by general laws except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten per cent. of the legal voters may be required to order the referendum, nor more than fifteen per cent. to propose any measure, by the initiative, in any city or town.

"Sec 2. 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 Oregon."

It will be observed from the first sentence in section 2 that no restriction is placed upon the Legislature with respect to the enactment of general laws; the exception being that no special laws creating or affecting the municipalities shall be enacted by the Legislature. Under all the rules of construction, this exception reserves to the legislative department the right, whether by the people directly through the initiative, or indirectly through the Legislature, to enact general laws upon the subject, making it clear that the inhibition in the next sentence has reference to special laws.

In Farrell v. Port of Portland, 52 Or. 582, 586, 98 P. 145, it is held that the initiative amendments to the Constitution, bearing upon the creation and government of municipalities, including section 1 of article 11, must be construed together. In considering the effect of section 2, art. 11, it is there said: "But this section and the language used in it should not be construed alone. It is a part of the initiative and referendum scheme first inaugurated by the amendment of 1902, and subsequently enlarged and extended by the amendments of 1906. All these amendments, so far as they refer to the same subject-matter, should be read together, and be so interpreted as to carry out the purpose of the people in adopting them, regardless of the technical construction of some of the language used." Since the above is the rule regarding the various amendments taken as a whole, much stronger must be the reason for reading and construing together all the sentences in the one section, from which it is obvious that the only restriction placed upon the Legislature by section 2 pertains to the passage of special laws affecting municipalities. These agencies of the state are thereby enabled to enact such local measures, to revise existing local laws, and to exercise their powers affecting them, and thus carry out their general scope and purpose, so long as they are not inconsistent with the Constitution of the state, or of the United States, and are in harmony with all the special laws and general laws of the state constitutionally enacted. Straw v. Harris, 54 Or. 424, 443, 103 P. 777. The language following the above excerpt from page 587 of 52 Or., 98 P. 145, of the opinion in Farrell v. Port of Portland, concerning the limitations placed by the amendment upon the Legislature, must be interpreted in the light of the questions there under consideration, from which it is manifest reference was had only to special laws affecting municipalities. The so-termed "general initiative and referendum scheme," there alluded to, and whether it is in violation of this provision of the federal Constitution, is fully considered and determined adversely to petitioner's contention in Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222, and State v. Pacific States Tel. & Tel. Co., 53 Or. 163, 99 P. 427, and there held to be not in conflict or inconsistent therewith. Other cases impliedly if not expressly sustaining this position are: Farrell v. Port of Portland, 52 Or. 582, 98 P. 145; Straw v. Harris, 54 Or. 424, 103 P. 777; Haines v. City of Forest Grove, 54 Or. 443, 103 P. 775; State v. Langworthy, 104 P. 424.

The question, however, as to whether the people may, by constitutional amendment, reserve to themselves the right to enact any law to the exclusion of the Legislature, and, by such method, delegate to municipalities powers not subject to abridgment, change, limitation, or recall by special acts of the legislative assembly, was not directly involved in any of the cases above cited. It would seem, however, that the views and conclusions reached in the decisions named necessarily dispose of this feature, but since counsel for petitioner insists that such disposal has not been made, and presents his contention in good faith, we will, at the possible expense of repetition of views announced in the above cases, consider the points thus presented. To begin, article 4, § 4, Const. U.S., reads: "The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature, or of the executive (when the Legislature cannot be convened), against domestic violence." In Luther v. Borden, 7 How. 1, 48, 12 L.Ed. 581, the court observes: "Moreover, the Constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a state, has treated the subject as political in its nature, and placed the power in the hands of that department. The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the executive (when the Legislature cannot be convened) against domestic violence. Under this article of the Constitution, it rests with Congress to decide what government is the established one in a state. For as the United States guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." See, also, Cooley, Const.Lim. (6th Ed.) pp. 42, 45; Texas v. White, 7 Wall. 700, 730, 19 L.Ed. 227; Taylor v. Beckham, 178 U.S. 548, 20 Sup.Ct. 890, 1009, 44 L.Ed. 1187, and 6 Mich. Law Review, 304, where authorities sustaining the above view are collated. We have an illustration of the principles announced in Luther v. Borden in the admission of Oklahoma as a state. Before its statehood was recognized, Oklahoma had adopted, as a part of its Constitution, the initiative and referendum lawmaking system, patterned after the Oregon plan, regardless of which its senators and representatives were "admitted into the councils of the Union," and "the authority of the government under which they were appointed, as well as its republican character, is recognized by the proper constitutional authority," thus determining that state, with its comparatively new legislative system, to be republican in form. This recent historical precedent should in itself be adequate to set at rest the temporarily mooted question in hand.

This court, however, has heretofore taken jurisdiction of cases of this character ( Kadderly v. Portland, 44 Or. 118 74 P. 710, 75 P. 222; State v. Cochrane, 105 P. 884), and, owing to the importance of the points presented, we will proceed to a consideration thereof. To ascertain whether taking from the Legislature and delegating to the municipalities, or to the localities affected, local self-government, or a right to enact, maintain, and alter their charters as the Legislature formerly did, and whether the taking from the Legislature the right to make special laws upon the subject violates this provision of the national Constitution, makes it important that we first ascertain what is meant by a republican form of government. It is an expression which all assume to understand, yet, judging from the many unsuccessful attempts of eminent statesmen and writers to...