Roy v. Beveridge

• Citation: 266 P. 230,125 Or. 92
• Parties: ROY v. BEVERIDGE, COUNTY CLERK.
• Decision Date: 03 April 1928
• Court: Supreme Court of Oregon

266 P. 230

125 Or. 92

ROY v. BEVERIDGE, COUNTY CLERK.

Supreme Court of Oregon

April 3, 1928

In Banc.

Original application for mandamus by Clara M. Roy against Jos. W Beveridge, County Clerk of Multnomah County. Writ dismissed.

This is a proceeding in mandamus to compel the defendant, Jos. W Beveridge, county clerk of Multnomah county, Or., to permit the plaintiff, Clara M. Roy, to change her registration as a voter in Portland, Multnomah county, Or.

The substance of plaintiff's petition and of the writ is as follows:

"On the 7th day of March, 1928, the city council of the city of Portland, passed an ordinance permitting the consolidation of two electric power companies, having franchises in the city of Portland, which ordinance is set out and marked Exhibit A in the plaintiff's petition. On the same day the council passed an ordinance submitting the ordinance permitting the consolidation to a vote of the people and calling a special election therefor.

"Both of these ordinances contained the emergency clause. The charter of the city of Portland provides, as appears by the record in this case, that every ordinance other than an emergency ordinance shall have three public readings, not more than two of which shall be at the same regular legislative session, and at least one week shall elapse between the introduction and final passage of any ordinance, and further provides that ordinances passed by the council shall go into effect 30 days after their approval by the mayor.

"The charter provides further that an emergency ordinance may be enacted upon the day of its introduction, providing that it shall contain the statement that an emergency exists and specify with distinctness the facts and reasons constituting such an emergency.

"Pursuant to the ordinance calling the special election for the purpose of the people of Portland approving or disapproving the ordinance authorizing the consolidation of the two companies, and notice of such ordinances sent to him by the city authorities, Joseph W. Beveridge, the county clerk of Multnomah county, Or., closed the registration books to the voters residing within the territorial limits of the city of Portland.

"The petitioner herein applied to the county clerk for permission to change her registration, she having married since her prior registration and having changed her address to another precinct. The county clerk refused to allow her to make such change, and she brings this action for a writ of mandamus to compel him to do so."

John C Veatch and Walter B. Gleason, both of Portland, for plaintiff.

Stanley Myers, of Portland, for defendant.

Griffith, Peck & Coke and John A. Laing, all of Portland, amici curiæ.

McBRIDE J. (after stating the facts as above).

In the first place, it seems proper to consider the extent of the power of the city council of Portland to pass an emergency ordinance. Section 28 of article 4 of the Constitution is as follows:

" When Act to Take Effect.--No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency which emergency shall be declared in the preamble or in the body of the law."

This refers only to acts of the Legislature and has no relevancy in respect to the passage of a city ordinance.

In section 1 of article 4 of the Constitution, as amended June 2, 1902, which section deals with the referendum powers of the people with respect to laws passed by the Legislature, it is provided that the referendum may be ordered, "except as to laws necessary for the immediate preservation of the public peace, health, or safety," by petition, et cetera. But, standing alone, this section does not in any way affect the power of cities to pass ordinances or authorize a referendum of such ordinances.

On June 4, 1906, the people by the initiative further amended the Constitution in reference to the exercise of the initiative and referendum power, such amendment being designated as section 1a, art. 4, of the Constitution. That portion of the section relevant to the question here under discussion is as follows:

"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."

By reference to section 1 of article 4, we find that the people have the power to invoke the referendum on all laws passed by the Legislature except those necessary for the immediate preservation of the public peace, health, or safety.

By section 1a of article 4, we find that these same powers are granted to the voters of municipalities, neither greater nor less. There are two methods prescribed by either of which these powers may be exercised by the municipalities. First, by pursuing the method provided by the state law, and second, by a method of their own prescription. The municipalities find themselves subject to certain powers granted the voters by the Constitution with, however, the right to provide the manner in which they shall be exercised. The word "manner" means "method" or "way." In other words, in order for a legislative act, whether passed by the Legislature or a city council, to be effective as an emergency measure, it must appear that, in the judgment of the Legislature, the immediate efficacy of the act or ordinance is necessary for the immediate preservation of the peace, health, or safety of the community, and in Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222, this court in an exhaustive and masterly opinion by Justice Robert S. Bean held that power of determining existence of such an emergency was exclusively with the Legislature, and that the courts had no authority to question that determination. That opinion is supported by the great weight of authority and has been consistently followed by this court since that date. But the charter of the city of Portland contains the following provision:

"An emergency ordinance may be enacted upon the day of its introduction, providing that it shall contain the statement that an emergency exists and specify with distinctness the facts and reasons constituting such emergency."

In Joplin v. Ten Brook, 263 P. 893, we held that a similar provision in the charter of the city of Astoria was valid, and that an ordinance, which not only proposed to call a special election but proposed to submit to the voters an ordinance palpably in violation of the express provisions of the Constitution of the state, clearly disclosed on its face that such ordinance was not necessary for the peace, health or safety of the city and was void. That ordinance not only proposed that a special election should be held, but attempted to repeal various ordinances of the city in regard to the manner of holding election and imposed severe penalties upon persons violating its provisions. We held that the ordinance in question was an attempt at general legislation, and that instead of being a mere administrative act, as in the case of Campbell v. City of Eugene, 116 Or. 264, 240 P. 418, it was an attempt to avoid a referendum of the ordinance, which the council...