Long v. City of Portland

• Decision Date: 19 January 1909
• Citation: 98 P. 1111,53 Or. 92
• Parties: LONG v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

98 P. 1111

53 Or. 92

LONG v. CITY OF PORTLAND et al.

Supreme Court of Oregon

January 19, 1909

On petition for rehearing. Denied.

For former opinion, see 98 P. 149.

EAKIN, J.

By this motion counsel for the city urge no question that was not considered in the opinion, but insists that our conclusion is wrong in holding that the legislative act of 1907 is not a violation of section 2, art. 11, of the Constitution, which forbids any amendment of a city charter by legislative enactment. We have again examined the questions involved, and adhere to the former opinion. We think this objection is fully considered in the opinion. It is not there contended that this statute does not affect section 49 of the charter. It does extend the time within which an ordinance may become operative; but this is incident to and necessary for the accomplishment of the purpose of section 1a, art. 4, of the Constitution, and is authorized by, and in compliance with, the terms thereof. The power of the referendum is fully reserved to the people, and is not dependent upon anything, except a provision by general law as to the manner of its exercise. It is not possible to give it effect without some provision similar to the one complained of here, which is within the very terms, as well as intention, of the referendum provision, and is as authoritative under the Constitution as the prohibition of section 2, art. 11. And therefore the legislative enactment contemplated by section 1a cannot be considered as an amendment of the charter within the meaning of the former section.

The effect of the referendum will not, however, affect in any manner ordinances or resolutions of the council that are not "municipal legislation." Section 11 of the legislative act of 1907 (Laws 1907, p. 406) provides, that "no city ordinance, resolution or franchise, shall take effect and become operative until thirty days after its passage by the council and approved by the mayor," and defendant cites this provision as being especially cumbersome to the prompt and expeditious transaction of municipal business, and in proceedings that are in invitum, such as those relating to street improvements; but this legislative act can only apply to such ordinances, resolutions, and franchises as are subject to the referendum. It cannot be broader than the provision it seeks to aid. The only acts of the council that are subject to the referendum by section 1a, art. 4, are such as come within the term "municipal legislation." Legislation as here contemplated must be considered in the sense of general laws namely, rules of civil conduct prescribed by the lawmaking power and of general application. By Opinion of The Justices 66 N.H. 629, 33 A. 1076, the law is said to be a rule--not a transient, sudden order to and concerning a particular person, but something permanent, uniform, and universal....