State ex rel. Heinig v. City of Milwaukie

• Decision Date: 25 July 1962
• Parties: STATE of Oregon ex rel. Richard F. HEINIG and Lulu S. Heinig, husband and wife; Richard F. Heinig and Lulu S. Heinig, husband and wife, Respondents, v. The CITY OF MILWAUKIE, a municipal corporation, and Earl Clay, Theron E. Sedgwick, James M. Howard, Ernest Aebi and Charles Renard, individually and as Mayor and Commissioners respectively of the City of Milwaukie, Appellants.
• Court: Oregon Supreme Court

Page 680

373 P.2d 680

231 Or. 473

STATE of Oregon ex rel. Richard F. HEINIG and Lulu S Heinig, husband and wife; Richard F. Heinig and Lulu S. Heinig, husband and wife, Respondents, v. The CITY OF MILWAUKIE, a municipal corporation, and Earl Clay, Theron E. Sedgwick, James M. Howard, Ernest Aebi and Charles Renard, individually and as Mayor and Commissioners respectively of the City of Milwaukie, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 10, 1962.

Decided July 25, 1962.

John O. Sheldahl, Oregon City, argued the cause and submitted briefs for appellants.

David H. Breuer, Portland, argued the cause and submitted a brief for respondents.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

This is a mandamus proceeding, commenced in the court below, through which plaintiff seeks to compel the city of Milwaukie and the members of the city council to establish a civil service commission in accordance with ORS 242.702 to 242.990 which provides for a civil service system for firemen.

The defendants appeal from a judgment granting a peremptory writ of mandamus commanding the city council to establish a civil service commission as prayed for in plaintiff's petition for the alternative writ of mandamus.

Defendant city operates under a home rule charter. The city has made no provision for the establishment of a civil service system covering the employees of its fire department. Provisions relating to the employment and discharge of city personnel including firemen are, however, found in the city charter. ¹ ORS 242.702 to 242.990 requires the creation of a civil service system for city firemen. ²

The defendants contend that matters relating to the operation of the city fire department, including the employment and discharge of firemen, are matters of purely local municipal concern and, therefore, not subject to regulation or control by the legislative assembly. Defendants, relying upon Article XI, § 2 and Article IV, § 1a as the source of this alleged exclusive municipal authority, ³ contend that ORS 242.702 cannot constitutionally be applied to the defendant city. ⁴

The two principal questions presented in this appeal are: (1) does the legislative assembly have the constitutional authority to enact a general law applicable to all cities when the enactment relates to a matter of local concern and in which there is no need for general regulation outside city boundaries; (2) is the establishment of a civil service system for city firemen a local matter or is it a matter of state wide concern? These precise questions have been presented to this court in previous cases. Unfortunately, not all of these cases are in harmony with each other. ⁵

In some of our cases the position is taken that if the statute applies to all cities (or to cities constitutionally classified) it is valid even though the statute deals with a matter of local concern only. ⁶ The contrary view is expressed in other cases. ⁷ The most recent pronouncement on the question is found in Schmidt v. City of Cornelius, 211 Or. 505, 316 P.2d 511 (1957). In that case a statute purported to empower owners of tracts of land to effect a disconnection of the tracts from the city under prescribed procedure. After reaffirming the rule stated in In Re Application of Boalt, 123 Or. 1, 17, 260 P. 1004, 1009 (1927) that the legislature may enact a general law 'governing the exercise of municipal authority in matters not strictly local or municipal, but pertaining in part to the general welfare of the state, or the exercise of sovereign authority,' the court said:

'Whether the legislature may ever by a general law operate directly upon all city charters in matters which concern alone the inhabitants of the respective cities and which relate to purely local affairs germane to the purposes for which the city was incorporated need not be again decided here. We merely take note of the apparent conflict between the dictum in Burton v. Gibbons, 148 Or. at page 381, 36 P.2d at page 790, and the clear statement supra from City of Portland v. Welch.

'It is sufficient for the disposal of the pending question to hold that since the legislature could not pass a special law amending the charter of the city of Cornelius and excluding territory from its boundaries, 'Hence, what the legislature cannot do directly it cannot do through indirection.' City of Portland v. Welch, 154 Or. at page 295, 59 P.2d at page 232.' Schmidt v. City of Cornelius, 211 Or. at 529, 316 P.2d at 523. ⁸

The court then said that the legislature could not effect an amendment to a city charter by empowering an individual to initiate judicial proceedings which, if successful, would amend the charter, for, it was said, 'To hold otherwise would be to deprive the city of its admitted power to change its own boundaries by its own procedure, and would in practical effect violate the mandate of Constitution Article I, § 21 which provides that no law shall be passed 'the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.'' ⁹

Since the foregoing language may leave some doubt as to the rationale of the Schmidt case we now expressly hold that the legislative assembly does not have the authority to enact a law relating to city government even though it is of general applicability to all cities in the state unless the subject matter of the enactment is of general concern to the state as a whole, that is to say that it is a matter of more than local concern to each of the municipalities purported to be regulated by the enactment. Borrowing the language from Branch v. Albee, 71 Or. 188, 193, 142 P. 598, 599 (1914), we hold that the people of a city are not 'subject to the will of the Legislature in the management of purely local, municipal business in which the state at large is not interested, and which is not of any interest to any outside the local municipality.'

An enactment is not of state-wide interest simply because the legislature decides that each of the cities in the state should be governed by the same law. In the appropriate case the need for uniformity in the operation of the law may be a sufficient basis for legislative preemption. But uniformity in itself is no virtue, and a municipality is entitled to shape its local law as it sees fit if there is no discernible pervading state interest involved.

We recognize that the constitutional provisions referred to above are susceptible to a narrower construction, ¹⁰ but the broader construction adopted in City of Portland v. Welch, 154 Or. 286, 59 P.2d 228, 106 A.L.R. 1188 (1936) apparently endorsed by Schmidt v. City of Cornelius, supra, is supportable, and the matter having finally come to resolution in those cases after a long period of vacillation and confusion in this important area of the law, we believe that it is desirable to reaffirm the position taken in the latter cases.

We next consider the question of whether the statutes relied upon by plaintiffs deal with a matter of local or of more general concern. Here again we are met with confusion and conflict in the cases. As has been observed, 'The courts have, generally speaking, been unable to devise any objective test whereby it can be determined with certainty what matters come within the term 'municipal affairs,' for the term has no fixed quantity, fluctuates with every change in the conditions upon which it operates, and has of necessity been determined by a slow process of judicial inclusion and exclusion.' ¹¹

Purely upon the basis of precedent our own decision in Branch v. Albee, 71 Or. 188, 142 P. 598 (1914) holding that the pensioning of city police is a municipal matter would, in our opinion, be conclusive in the present case. ¹² In relation to the question before us we can see no substantial difference between the establishment of a pension system for city police and the establishment of a civil service system for city firemen. But even if we were to consider the question as res integra we would still hold that the manner of employing and discharging the personnel of a municipal fire department is a matter of local rather than state concern. To be sure, it could be shown that the manner of dealing with personnel of local fire departments may have some relation to the affairs of the state outside of the city boundary--in a sense all events in life are related--but the question requiring our answer is whether the extramural effect is substantial or insignificant. 'The real test is not whether the state or the city has an interest in the matter, for usually they both have, but whether the state's interest or that of the city is paramount.' ¹³

The solution cannot be arrived at by a recitation of the definitions of 'local' or 'municipal' affairs. ¹⁴ The question is, of course, one of degree, and the allocation of power between legislature and municipality must be made by us in accordance with the purpose, as we understand it, of the constitutional amendments which vested in the cities a part and an exclusive part of the power to legislate free from the control of the state legislative assembly.

That purpose, stated broadly, was to make operative the concept that the closer those who make and execute the laws are to the citizens they represent the better are those citizens represented and governed in accordance with democratic ideals. ¹⁵ That objective would not be served if we should decide that the legislative assembly pre-empts the field each time it makes a statute applicable to all cities alike.

The statement of this broad objective of the home rule amendments does not, of course, decide the case before us. It serves only as a basis for emphasis in making the choice between the city and the state in the allocation of sovereignty upon more specific grounds.

The constitutional recognition that the municipality is to have exclusive...