Long v. City of Portland

• Decision Date: 01 December 1908
• Citation: 53 Or. 92,98 P. 149
• Parties: LONG v. CITY OF PORTLAND et al. [d1]
• Court: Oregon Supreme Court

98 P. 149

53 Or. 92

LONG v. CITY OF PORTLAND et al. ^[d1]

Supreme Court of Oregon

December 1, 1908

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Suit by George Long, on his own behalf and on behalf of all other residents, citizens, corporations, and taxpayers and all others similarly situated, against the city of Portland and others. From a decree of dismissal entered after sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Martin Watrous and Frank F. Freeman, for appellant.

J.P Kavanaugh and Frank S. Grant, for respondents.

EAKIN J.

This is a suit to enjoin the enforcement of a city ordinance of the city of Portland pending the submission thereof to a vote of the people by the referendum. On February 26, 1908, an ordinance was enacted by the common council of the city of Portland, numbered 17,414, which exacts a license fee for the operation of vehicles, conveyances, and delivery wagons used in the conduct of certain businesses. Within 30 days after the passage of the ordinance a petition invoking a referendum thereon was filed with the auditor of the city and it is alleged that the city officers are proceeding to enforce the ordinance against the owners of all such vehicles before the same has been approved by the voters of the city. A demurrer to this complaint was sustained by the court, and a decree entered thereon dismissing the suit; and the plaintiff appeals.

These issues involve the effect of the legislative act of February 25, 1907, which provides for carrying into effect the initiative and referendum powers reserved to the people by section 1 and section 1a of article 4 of the Constitution. This necessitates the consideration of several sections of the Constitution and of section 49 of the charter of the city of Portland. Section 2 of article 11 of the Constitution was amended on June 4, 1906, and now provides: "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 1 of article 4 of the Constitution was amended June 2, 1902, being the initiative and referendum amendment, and is a general reservation by the people of the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, and also the power to approve or reject at the polls any act of the legislative assembly. At the general election of 1906, article 4 of the Constitution was again amended by adding thereto section 1a. So far as involved here, it reads in section 1a "*** 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." Section 49 of the charter of the city of Portland (Sp.Laws 1903, p. 20) provides: "Upon the passage of *** any ordinance, an enrolled copy thereof, attested by the auditor shall be submitted to the mayor by the auditor, within five days from the passage of the same by the council, and if the mayor approves the same, he shall write upon it 'Approved,' with the date thereof, sign it with the name of his office, and thereupon, unless otherwise provided therein, such ordinance shall become a law, and be of force and effect. ***" The act of the legislative assembly of February 25, 1907 (Laws 1907, p. 398), above referred to, provides for the exercise of the initiative and referendum of the Constitution and applies to general, local, special, and municipal legislation. Section 10 of the act provides how the initiative and referendum shall be invoked in cities and towns as to the preparation and filing of the petitions and other preliminary proceedings.

Section 11 provides, among other things, that the referendum petition against any ordinance shall be filed with the auditor within 30 days after the passage of such ordinance, that no city ordinance shall take effect and become operative until 30 days after its passage, except measures necessary for the preservation of the peace, health, and safety of the city.

The contention of the defendants is that as section 49 of the charter provides that an ordinance shall take effect immediately upon its approval by the mayor, and section 2, art. 11, Const., provides that the Legislature shall not amend any charter, therefore the act of the legislative assembly of February 25, 1907, in so far as it provides that no ordinance shall take effect until 30 days after its passage, is void, for the reason that it thereby attempts to amend section 49 of the charter. This is the only question involved. Section 1a, art. 4, Const., is not self-executing, for the reason that it makes no provision as to its enforcement. It only declares or reserves the right, without laying down rules, by means of which this right may be given the force of law. Cooley's Con.Lim. (7th Ed.) 121; Reeves v. Anderson, 13 Wash. 17, 42 P. 625. It contains no provisions as to the time and place of filing the petition, nor the time when, or manner in which, the law voted upon shall take effect; and, in view of section 49 of the charter, some provision is required to give time and opportunity to invoke the referendum against an ordinance passed by the council; and many other details may be greatly aided by legislation. This was recognized by the framers of this amendment, as it provides therein that the manner of exercising such power shall be prescribed by general laws or by the city. This right of the referendum is reserved to the people of a city or town, regardless of any provisions of the city charter. It is superior to the charter. Cooley's Con.Lim. 122, in speaking of a self-executing homestead provision of the Constitution and of le...