State ex rel. City of Eugene v. Keeney

• Citation: 262 P. 943,123 Or. 508
• Parties: STATE EX REL. CITY OF EUGENE ET AL. v. KEENEY, ASSESSOR OF LANE COUNTY.
• Decision Date: 10 January 1928
• Court: Supreme Court of Oregon

262 P. 943

123 Or. 508

STATE EX REL. CITY OF EUGENE ET AL. v. KEENEY, ASSESSOR OF LANE COUNTY.

Supreme Court of Oregon

January 10, 1928

In Banc.

Original proceeding in mandamus by the State, on the relation of the City of Eugene and others, against B. F. Keeney, as County Assessor of Lane County. Submitted on demurrer to alternative writ. Peremptory writ granted.

Lawrence T. Harris and S. M. Calkins, both of Eugene (Smith & Bryson, of Eugene, on the brief), for plaintiff.

H. E Slattery, of Eugene, for defendant.

RAND, C.J.

The state of Oregon, on relation of the city of Eugene instituted these proceedings to compel the defendant, as the county assessor of Lane county, Or., to enter upon the tax roll for the year 1928 a tax levy of $2,500, made by the city of Eugene for municipal playgrounds. An alternative writ of mandamus was issued, directed to said defendant, requiring him, as such assessor, to extend the same upon the tax roll or to show cause why he had not done so. To this writ defendant has demurred, and by his demurrer he challenges not only the validity of the levy, but also the validity of the amendment to the charter of the city under the authority of which the levy was made.

It appears from the allegations of the writ that on March 28, 1927, the common council of the city of Eugene adopted a resolution providing for the submission to the electors of an amendment to the charter authorizing the council to make a special levy, in addition to its regular general levy of a tax not to exceed three-tenths of one mill on the dollar valuation of taxable property within the city for the acquisition, maintenance, and supervision of public playgrounds and recreation areas in the city, and filed said resolution with the city recorder; that the common council, on May 9, 1927, passed an ordinance ordering that the proposed amendment be submitted to the legal voters of the city for their adoption or rejection at the special state-wide election to be held on June 28, 1927, pursuant to chapter 437, L. 1927. It also appears that on May 23, 1927, the council adopted a resolution stating that the purpose of submitting said amendment was to secure authority to levy a tax, in addition to, and in excess of, the constitutional limitation, limiting cities to a 6 per cent increase in their levies over those of the preceding year, and directing the city recorder to indicate in the election pamphlet as well as in the notice of election and on the ballot itself that the levy was intended to be in addition to, and in excess of, said constitutional limitation.

It also appears from the writ that an election pamphlet was published and distributed among all of the voters of the city of Eugene, and that notice of such election was duly published, and that it was stated in the election pamphlet and in the notice of election and on the ballot itself that the levy was intended to be in addition to, and in excess of, the constitutional 6 per cent. limitation. It also appears that the proposed amendment was copied verbatim, and published in the election pamphlet so distributed to the voters of said city. It further appears from the writ that the election was duly and regularly held, and that the amendment was adopted by a majority of the votes cast by the legal voters of said city at said election, and that by said amendment, so adopted, the common council thereby became authorized and empowered to include in the tax levies thereafter to be made a special levy or not to exceed three-tenths of one mill upon the dollar valuation for the acquisition, maintenance, and supervision of public playgrounds and recreation areas within the city of Eugene, and also for the appointment of a playground commission. It also appears from the writ that, pursuant to the authority thus conferred by said charter amendment, an ordinance was duly and regularly passed by the common council of the city levying a tax in the sum of $2,500 for municipal playgrounds, and that, as required by section 4303, Or. L., the city of Eugene, through its duly authorized officers, gave notice in writing to the defendant, as assessor of Lane county, of such tax levy in the sum of $2,500 to be raised by taxation for said purpose, and that the defendant as such assessor then and there refused, and still refuses, to extend said levy upon the tax roll for the year 1928.

Defendant's first contention is that the charter amendment in question is void because the notice of the election at which the amendment was adopted did not conform to the requirements of section 30 of chapter 5 of the charter of the city of Eugene, which provides that:

"The recorder shall give ten (10) days' notice by publication in some newspaper in the city of Eugene of each general or special election, if a general election the notice shall contain the officers to be elected thereat, and the measures or other questions, if any, to be submitted; if a special election, the measures, if any, and any other question to be voted upon at such election, and the notice shall also contain the place or places designated for holding a general election or special election."

His contention is that the word "contain," as used in section 30, above quoted, means that a proposed amendment of the charter must be set out in its entirety in the published notice of election, and that merely to describe the proposed amendment, if not copied in full, is...