Spence v. Watson

• Decision Date: 18 November 1947
• Citation: Spence v. Watson, 182 Or. 233, 186 P.2d 785 (Or. 1947)
• Parties: SPENCE <I>v.</I> WATSON, ASSESSOR FOR THE COUNTY OF MULTNOMAH.
• Court: Oregon Supreme Court

182 Or. 233

186 P.2d 785

SPENCE

v. WATSON, ASSESSOR FOR THE COUNTY OF MULTNOMAH.

Supreme Court of Oregon.

Argued October 16, 1947.

Reversed and remanded November 18, 1947.

Constitutional law — Initiative referendum — Municipal legislation — Exclusive powers

1. Constitution art. 4, § 1a, reserving to the electors of a municipality and district initiative referendum powers with respect to all local municipal legislation in or for their jurisdictions must, insofar as relating to the same subject matter, be construed with art. 11, § 2 forbidding the legislature from enacting, amending, or repealing any town act of incorporation, and granting those powers exclusively to the town electors. Const. art. 4, § 1a, art. 11, § 2.

Municipal corporations — Procedure — Contiguous territory — Annexation

2. The statute prescribing the procedure to be followed by a town in annexing contiguous territory is not unconstitutional as amending a town charter, a power reserved to the town electors, since annexation is an extra-mural act not permitted town authorities under the Constitution unless specially granted by legislation or state referendum. O.C.L.A. § 95-901; Const. art. 4, § 1a, art. 11, § 2.

Evidence — Judicial notice — Incorporation

3. Supreme Court took judicial notice that Troutdale was incorporated by majority vote of qualified voters and residents on a certain date under provisions of a statute then applicable, where a certificate reciting those facts had been filed with the Supreme Court librarian by the city recorder. O.C.L.A. § 95-801.

Municipal corporations — Procedure — Annexation

4. Where procedure to be followed precedent to annexation of new territory by an incorporated town was set forth only in Laws of Oregon 1893, p. 119 at pp. 120, 121 under which town had been incorporated, provision of O.C.L.A. § 95-901 that its modified procedure should "be additional and alternative to any provision of the respective charters" of incorporated cities was not applicable to save the procedure existing under the older general law, and superseded it. O.C.L.A. § 95-901.

Municipal corporations — Annexation — Procedure — Extramural

5. The Statute adding to requirements under general laws existing at time of a town's incorporating, the need for a petition by residents and property owners in an area sought to be annexed as a prerequisite, to further proceedings by the annexing town is not invalid as in conflict with constitutional provisions preventing the legislature from modifying town charters, since annexation is an extramural proceeding over which the legislature has authority, and amendment of its prior acts is a corollary of the legislature's sovereign power. O.C.L.A. § 95-901; Const. art. 4, § 1a, art. 11, § 2.

Appeal and error — Facts — Brief — Not in complaint

6. Where facts stated in defendant's briefs do not appear in the complaint, they are not before the Supreme Court considering a proceeding on appeal from a judgment sustaining a demurrer.

Appeal and error — Order — Conclusiveness

7. Where a county court order to effect that an area outside a city sought to be annexed, had been annexed, was not referred to in the complaint, its conclusiveness could not be considered on appeal from a judgment sustaining a demurrer.

Municipal corporations — Order — Not conclusive

8. An order of a county court to the effect that an area sought to be annexed to a town had been so annexed, would not be conclusive on the Supreme Court.

Municipal corporations — Petition — Annexation — Mandatory

9. The provision of a statute calling for the filing of a petition requesting annexation by 15 per cent of affected resident real property owners before a municipality's legislative body could call an election, is mandatory since without a sufficient petition, no jurisdiction is conferred on the tribunal empowered to proceed. O.C.L.A. § 95-901.

Appeal and error — Complaint — Statute — Tax assessment

10. Where complaint did not allege facts necessary to show the applicability of a statute validating otherwise unlawful annexation of territory to cities, the effect of that statute upon a threatened tax assessment resisted by a property owner claiming an unlawful annexation was not before the Supreme Court on appeal from a judgment sustaining a demurrer. Laws 1947, c. 164.

  See 64 A.L.R. 1335
                  37 Am. Jur. 639
                  16 C.J.S., Constitutional Law, § 23
                

Appeal from Circuit Court, Multnomah County.

FRANK J. LONERGAN, Judge.

John J. Coughlin, (with Griffith, Peck, Phillips & Nelson, all of Portland, on brief), for appellant.

Dan M. Dibble, Deputy District Attorney and Arthur Langguth, (with John B. McCourt, District Attorney, and Stanley Jones, Deputy District Attorney, all of Portland, on brief), for respondents.

Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, HAY and WINSLOW, Justices.

Suit by J.R. Spence against Tom C. Watson, Assessor, Martin T. Pratt, Sheriff, and John B. McCourt, District Attorney, all of the County of Multnomah, State of Oregon, to enjoin and restrain the assessment and collection of a tax as a result of alleged annexation of complainant's property to a town. From judgment for defendants, plaintiff appeals.

REVERSED AND REMANDED.

KELLY, J.

This is a suit by plaintiff J.R. Spence, owner of an undivided one-fifth interest in and to certain parts of Tax Lots 7 and 8, Section 25, Township 1, North Range 3 East of the Willamette Meridian in Multnomah County, Oregon, against the assessor, sheriff and district attorney of said county, to enjoin and restrain the said assessor from including said property for tax assessment purposes within the boundaries of the town of Troutdale in said county and state; to enjoin and restrain said sheriff from collecting or attempting to collect from plaintiff taxes based upon any assessment or levy including said real property within the boundaries of said town, and to restrain and enjoin said sheriff from collecting or attempting to collect from plaintiff any real property taxes other than such taxes as plaintiff should be required to pay if said real property is not within the boundaries of said town of Troutdale.

The learned trial court sustained defendants' demurrer to plaintiff's complaint on the ground that, in the opinion of said trial court, said complaint does not state facts sufficient to constitute a cause of suit in that Chapter 388, Oregon Laws 1945, upon which plaintiff relies, was and is unconstitutional.

Plaintiff declined to plead further, and, on the 9th day of April, 1947, a decree of dismissal was made and entered from which plaintiff has prosecuted this appeal.

It appears from plaintiff's complaint that on or about April 5, 1946, a special election was held for the electors of Troutdale, Multnomah County, Oregon, and for the electors of a certain area contiguous and adjacent thereto for the purpose of altering the boundaries of Troutdale, and including therein said contiguous and adjacent territory, which is also described in plaintiff's complaint; and that the property, also specifically described in said complaint of which plaintiff owns an undivided one-fifth interest, is within the boundaries of the proposed annexation.

It also is alleged in plaintiff's complaint that 15 per cent of the resident owners of property on the proposed annexation did not first sign and file with the authorities of the town of Troutdale a petition that such territory be included in said town of Troutdale.

One question, presented by this record, is whether the legislature has the authority to legislate upon the procedure that must be observed by an incorporated town or city in annexing territory outside of its corporate boundaries, or, to state that question differently, whether the provisions of Section 1a of Article IV, of the constitution of Oregon, reserves that right to the electors of such city or town.

To solve that question, we must construe the langage of the third sentence of said section 12, which is as follows:

"* * * The initiative 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. * * *"

1. This court has often held that, so far as they relate to the same subject matter, Article IV, Section 1a and Article XI, section 2 of the Constitution must be read and construed together. State ex rel v. Port of Astoria, 79 Or. 1, 154 P. 399.

The pertinent language of said section 2 of Article XI is as follows:

"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."

2. In State ex rel v. Port of Astoria, supra, this court, speaking through Mr. Justice HARRIS, said:

"* * * Powers exercisable by cities and towns may be placed in two separate classes, which, for the sake of brevity, and the want of better terms, will be designated as: (1) Intramural; and (2) extramural. When the legal voters of a city enact municipal legislation which operates only on themselves and for themselves, and which is confined within and extends no further than the corporate limits, then such voters are exercising intramural authority. When, however, the legal voters attempt to exercise authority beyond the corporate limits of their municipality, they are using extra-mural powers."

"* * * * The right to employ intramural authority finds its source in the language of the Constitution; because the legal voters of cities and towns are by that instrument expressly empowered to enact and amend their own charters; but permission to employ extramural authority must be granted to cities and towns before the...