Monahan v. Funk

• Decision Date: 13 October 1931
• Parties: MONAHAN et al. v. FUNK, City Auditor.
• Court: Oregon Supreme Court

3 P.2d 778

137 Or. 580

MONAHAN et al. v. FUNK, City Auditor.

Supreme Court of Oregon

October 13, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Proceedings for mandamus by T. J. Monahan, for himself and 8,006 persons similarly situated, opposed by George R. Funk, Auditor of City of Portland. Decree for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Frank S. Grant, of Portland (Robert A. Imlay, of Portland, on the brief), for appellant.

Elton Watkins, of Portland, for respondent.

BEAN C.J.

This is a proceeding in mandamus to require the auditor of the city of Portland to submit a certain ordinance to a vote of the people by referendum. The question for determination is whether the ordinance of the city of Portland, Or authorizing the commissioner of public utilities to purchase certain real property for the city of Portland, needed for a crematory site, and authorizing the mayor and auditor to draw and deliver warrants for the purchase price of the tract upon conveyance of good title thereof, is legislative or administrative. If the ordinance is municipal legislation the referendum may be invoked; if administrative, it does not apply.

The city charter, as amended on November 6, 1928, by a vote of the people of the city, designated as section 342, authorized the council of the city to issue and dispose of bonds of the city in an amount not exceeding $300,000, and provided the details pertaining thereto. From the proceeds of the sale of the bonds, the council was authorized to pay the expenses of advertising and issuing said bonds "and to acquire real property, either by direct purchase or by condemnation proceedings, and when so acquired, to construct thereon a new crematory or incinerating plant, with all of the necessary equipment therefor." For the purpose of administering the provisions of section 342, the council, on May 8, 1931, enacted Ordinance No. 60655, entitled: "An Ordinance providing for the purchase of certain property containing in all opproximately 295 acres for a garbage incinerator plant and providing for the drawing and delivery of a warrant." The ordinance authorized the commissioner of public utilities to purchase for the city of Portland, property needed for a garbage crematory site, described in the ordinance, and also authorized the mayor and auditor to draw and deliver a warrant for the purchase of the tract upon the conveyance of good title thereto to the city of Portland.

On June 6, 1931, the plaintiff presented to the appellant for filing, subject to verification as to the number and genuineness of the signatures and voting qualifications of the persons signing the same, the referendum petition, in a form approved by the defendant, and as required by the laws of the state and ordinances of the city. The referendum purports to have been signed by plaintiff and 8,006 other citizens and voters of the city and state, which number of signers, if said signatures are genuine and the signatures of legal voters of the city, is more than 15 per cent. of the votes cast at the last preceding city election, and is sufficient, under the provisions of the ordinance of the city providing for invoking the referendum upon any legislative act of the council. Defendant refused to accept the referendum petition for filing upon the ground that Ordinance No. 60655 is an administrative, and not a legislative, act of the council, and therefore not subject to the referendum.

The defendant, in his answer, asserted that all of the acts leading up to the enactment of the ordinance and the passing of the ordinance itself, were administrative acts of the council, involving the exercise of direct power and discretion lodged in the council by the terms and provisions of section 342 of the charter. The answer further asserts that, in carrying out the terms of the charter amendment, immediately following the enactment thereof by the voters of the city, the council began to look for property for the incinerator, and solicited and received a number of proposals for various tracts at different prices. The city engineer made a survey as to area and fitness of each tract submitted, and reported his findings to the council. The council itself made an investigation of each proposed tract and the prices for which the proposed tracts might be purchased, and before its final determination of these facts the council held numerous public hearings, to which plaintiff and the general public were given ample and full opportunity to be heard, and were heard on numerous occasions. After consideration, the council determined to purchase the property described in Ordinance No. 60655, and directed the city attorney to prepare an ordinance directing the commissioner of public utilities to make the purchase, and prescribed the terms and conditions upon which the purchase was to be made. After the ordinance was prepared, further public hearings were had. Finally, on May 8, 1931, the ordinance was enacted.

The plaintiff demurred to the answer and return to the alternative writ of mandamus. The circuit court sustained the demurrer, and directed the defendant to file as a valid referendum petition the referendum petition of plaintiff and 8,006 persons described in the alternative writ, subject to verification as to number and genuineness of the signatures and voting qualifications of the persons signing the same, as required by the ordinance of the city. The defendant auditor of the city appealed.

Section 1a, art. 4, of the Constitution of Oregon, adopted June 4, 1906, ordains in part 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. ***"

Section 19 of the charter of Portland provides that the referendum shall be exercised within the city of Portland in the same manner as provided by the Constitution and general laws of the state and ordinances of the city of Portland enacted in pursuance thereof. By section 20 of the charter, the power and authority given to the city of Portland is vested in a council consisting of a mayor and four commissioners, subject to the initiative and referendum and other powers reserved to the people by the Constitution.

Formerly the incinerating plants of the city were under the management, control, and supervision of the board of health. Section 238 of the Charter. That board was abolished by virtue of section 16 of the charter, and authority was conferred upon the council.

In determining whether the ordinance in question was legislative or administrative, we notice that the authorities in the books are in accord that actions which relate to subjects of a...