Schubel v. Olcott

• Decision Date: 23 January 1912
• Citation: 60 Or. 503,120 P. 375
• Parties: SCHUBEL v. OLCOTT.
• Court: Oregon Supreme Court

120 P. 375

60 Or. 503

SCHUBEL v. OLCOTT.

Supreme Court of Oregon

January 23, 1912

Mandamus by G.A. Schubel against Ben W. Olcott to require defendant to file an initiative petition for a local law for a county. Granted.

Burnett J., dissenting, and McBride, J., dissenting in part.

C.E.S. Wood, W.S. U'Ren, and E.S.J. McAllister (Williams, Wood & Linthicum and Erskine Wood, on the brief) for plaintiff.

A.M. Crawford, Atty. Gen., F.W. Mulkey (I.H. Van Winkle and James W. Crawford, on the brief), for defendant.

BEAN J.

This is a proceeding in mandamus, instituted in this court under the provisions of article 7, § 2, of the Constitution of Oregon adopted November 8, 1910, for the purpose of requiring the defendant, as Secretary of State, to file an initiative petition for a local law for the county of Clackamas to exempt from taxation all trades, labor, professions business, occupations, personal property, and improvements on, in, and under land, and to require that all taxes levied and collected within said Clackamas county shall be levied on and collected from the assessed values of land and other resources, separate from the improvements thereon, and on and from the assessed value of public service corporation franchises and rights of way.

The following facts are alleged: That said petition was prepared and circulated in compliance with an act of the Legislature of 1907, entitled "An act to provide for carrying into effect the initiative and referendum powers reserved by the people in section 1 and section 1a of article 4 of the Constitution of the state of Oregon on general, local, special, and municipal legislation; to regulate elections thereunder. ***" Laws 1907, c. 226. That the petition was signed by 674 legally qualified voters of the county of Clackamas, more than the percentage required for that purpose. That the same was presented to defendant for filing, who, awaiting the opinion of the Attorney General relative to filing, receipted therefor, and thereafter refused to file such petition. That defendant, as Secretary of State, is the legal custodian of all such petitions as the one offered by plaintiff for filing, and is the official with whom the law provides that all initiative and referendum petitions appertaining to the state as a whole, or a district thereof, shall be filed. That, by virtue of said legislative act, plaintiff is entitled to have the petition filed according to the terms thereof. To the alternative writ of mandamus, defendant answered, in effect, that under the laws said petition should not be filed.

It is contended by the Attorney General and counsel for defendant that article 9, § 1a, of the Constitution of Oregon, is not self-executing; that counties are not municipalities, within the meaning of article 4, § 1a, of the Constitution; and that the procedure indicated by section 3470 et seq., L. O.L., does not apply to them.

The theory of plaintiff is that article 4, § 1a, confers upon counties the power to initiate county legislation; that the act of 1907 provides the machinery by which such right may be exercised; that article 9, § 1a, gives to counties the power to regulate taxation within their boundaries.

In order to consider the questions presented, we will refer to the portions of the amendments of the organic law of this state applicable thereto. The first, adopted by the people June 2, 1902, being article 4, § l, relating to legislative authority, style of bill, initiative and referendum, makes, among others, the following provisions: "The legislative authority of the state shall be vested in a Legislative Assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly. The first power reserved by the people is the initiative, and not more than eight per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretry of

State not less than four months before the election at which they are to be voted upon. The second power is the referendum. *** Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor."

Article 4, § 1a, adopted June 4, 1906, relating to the initiative and referendum on local, special, and municipal laws, and parts of laws, 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. 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."

Article 9, § 1a, proposed by initiative petition and adopted by a majority of votes at the election November 8, 1910, provides as follows: "No poll or head tax shall be levied or collected in Oregon. No bill regulating taxation or exemption throughout the state shall become a law until approved by the people of the state at a regular general election. None of the restrictions of the Constitution shall apply to measures approved by the people declaring what shall be subject to taxation or exemption and how it shall be taxed or exempted whether proposed by the Legislative Assembly or by initiative petition; but the people of the several counties are hereby empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted."

Article 4, § 1a, and article 9, § 1a, of the Constitution, are not self-executing in respect to counties, as they make no provisions regarding the manner of their enforcement. By the first of these, the initiative and referendum powers reserved by the people are further reserved to the legal voters of every municipality and district as to all local, special, and municipal legislation of every character in their respective municipalities and districts. By the second, the people of the several counties are empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted. In article 4, § 1a, it is specifically provided that the manner of exercising such powers shall be prescribed by general laws, except as to cities and towns; neither section containing rules by means of which this right may be given the force of law as regards local legislation in counties. Cooley's Constitutional Limitations (7th Ed.) 121; Long v. City of Portland, 53 Or. 92, 96, 98 P. 149, 1111; Reeves v. Anson, 13 Wash. 17, 42 P. 625; Stevens v. Benson, 50 Or. 269, 91 P. 577. Hence we must look at the general laws of this state for the manner of executing these sections of the organic law.

Turning to the legislative enactment of 1907, being section 3470 et seq., L. O.L., it appears that the Legislature intended to and did make all the necessary rules for carrying into effect the initiative and referendum provisions of the Constitution. The following legislative decrees affirm this in directing that, if the Secretary of State shall refuse to accept and file any petition for the initiative or for the referendum, any citizen may apply, within 10 days after such refusal, for a writ of mandamus to compel him to do so (section 3474, L. O.L.); that when a measure shall be filed with the Secretary of State, to be referred to the people of the state, or of any county or district composed of one or more counties, either by the Legislative Assembly or by the referendum petition, and when any measure shall be proposed by initiative petition, the Secretary of State shall forthwith transmit to the Attorney General of the state a copy thereof, and within 10 days thereafter the Attorney General shall provide and return to the Secretary of State a ballot title for such measure. Section 3475, L. O.L. An examination of section 6 (3476, L.O.L.) of the same act reveals that the reason of the legislative rule requiring the filing of an initiative petition with the Secretary of State, when only one county is interested in the measure, is to avoid confusion in the numbering of the initiative measures on the ballot.

It is urged that this act was passed prior to the amendment of the Constitution contained in article 9, § 1a, and is not applicable thereto. Though the machinery for carrying this amendment into effect was created before the birth of the amendment, yet such machinery or provisions of the enabling act fit with almost exact nicety, and we do not think it necessary for the people or the Legislature to re-enact the provisions of this law.

In Acme Dairy Co. v. Astoria, 49 Or. 520, 523, 90 P 153, 155, this court, speaking through Justice Moore, in construing article 4, § 1a, said: "The words 'municipality' and 'district,' as used in the clause of the amendment adverted to, are evidently expressions of...