State ex rel. Perkins v. Kellaher

• Decision Date: 14 January 1919
• Parties: STATE EX REL. PERKINS v. KELLAHER.
• Court: Oregon Supreme Court

177 P. 944

90 Or. 538

STATE EX REL. PERKINS v. KELLAHER.

Supreme Court of Oregon

January 14, 1919

In Banc.

Original proceeding in quo warranto by the state, on the relation of T. L. Perkins, against Dan Kellaher. Judgment for relator.

This is an action in quo warranto brought in this court to determine whether the relator or the defendant is the person rightfully entitled to hold the office of commissioner for an unexpired term ending June 30, 1919. At a general municipal election held June 7, 1915, George L. Baker was elected to the office of commissioner of the city of Portland for a term of four years, beginning July 1, 1915, and ending June 30, 1919. Baker resigned June 29, 1917, and on July 2, 1917, defendant Kellaher, was appointed by the city council to fill the vacancy. Sections of the city charter bearing upon the matter here in issue are as follows:

"Sec 21. Elective Officers. There shall be no elective officers of the city of Portland other than the mayor, four commissioners and the auditor. All said officers shall be elected at large by the legal voters of the city of Portland, and for a term of four years, except as provided in sections 30 and 123 of this Charter.

"Sec 22. Qualifications. The mayor and every commissioner shall be a citizen of the United States and of the state of Oregon and shall have been a resident of the city of Portland for a period of not less than three years immediately preceding the beginning of his term. If any mayor or commissioner shall be chosen without such qualifications, or shall cease to have the same, the office shall immediately become vacant."

"Sec 29. Vacancy in Office. A vacancy shall exist when the mayor or a commissioner fails to qualify by taking the oath and filing the bond on or before July 1 following his election, or within ten days after notice of appointment to fill a vacancy dies, resigns, is removed from office, is convicted of a felony, is judicially declared a lunatic, or is judicially convicted of corruption, malfeasance or delinquency in office. A vacancy shall also occur when the mayor or a commissioner absents himself from his duties or from the city of Portland without the consent of the council expressed by ordinance for more than thirty days in any one year. The pay of the mayor or any commissioner shall cease after thirty (30) days' absence from the city, but the council may grant leave of absence without pay for a further reasonable period, upon good cause being shown. No act of the council in which any member participated whose office was vacant at the time, as herein provided, shall be for that reason invalid, unless the vacancy shall have been previously ascertained and declared by act of the council or judgment of a court.

"Sec. 30. Manner of Filling Vacancies. If a vacancy occur in the office of mayor or commissioner the council shall appoint an eligible person to fill such vacancy until the next general municipal election."

"Sec. 123. Municipal Elections. A municipal election shall be held on the first Monday in June, 1913, and on the first Monday in June on each second year thereafter, which shall be known as the general municipal election. All others shall be known as special municipal elections. The first general municipal election under this charter shall be held on the first Monday in June, 1913, for the purpose of electing a mayor, four commissioners and an auditor. The mayor and the two commissioners who receive the highest votes shall hold office until the first day of July, 1917, and the auditor and the other two commissioners shall hold office until the first day of July, 1915. Thereafter every such officer shall hold office for the full term of four years. Such elected officers shall assume office the first day of July after the election."

Section 14a of the Constitution of Oregon, adopted June 4, 1917, provides:

"Incorporated cities and towns shall hold their nominating and regular elections for their several elective officers at the same time that the primary and general biennial elections for state and county officers are held, and the election precincts and officers shall be the same for all elections held at the same time. All provisions of the charters and ordinances of incorporated cities and towns pertaining to the holding of elections shall continue in full force and effect except so far as they relate to the time of holding such elections. Every officer who, at the time of the adoption of this amendment, is the duly qualified incumbent of an elective office of an incorporated city or town shall hold his office for the term for which he was elected and until his successor is elected and qualified. The Legislature, and cities and towns, shall enact such supplementary legislation as may be necessary to carry the provisions of this amendment into effect."

Chapter 422, p. 894, Laws 1917, provides for a special election for a vote on all measures enacted by the legislative assembly and submitted to the people, and also all amendments to the Constitution proposed by the Legislature and submitted to the people, with certain exceptions which do not include the amendment here considered.

Section 1 of article 17 of the Constitution, among other matters, provides:

"Any amendment or amendments to this constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular general election, except when the legislative assembly shall order a special election for that purpose."

After the adoption of section 14a, supra, the city council of Portland passed Ordinance No. 34638, providing that a city election should be held on November 5, 1918, to conform to the provisions of section 14a, and providing the manner in which said election should be conducted. At said election the relator was a candidate for the supposed vacancy from November, 1918, to June 30th following, and, receiving a plurality of the votes cast, a certificate of election was issued to him. Defendant claiming that he was entitled to hold the office until June 30, 1919, relator instituted this action to determine the title to the office.

Defendant defends on these grounds:

(1) That section 14a was not properly submitted and adopted.

(2) That, conceding its adoption, it is not self-executing, but remains in abeyance until the city council shall pass legislation to make it effective.

(3) That there is no authority, granted either by the city charter or ordinances or general laws, whereby unexpired terms can be filled by election by the voters.

Gus C. Moser and W. P. La Roche, City Atty., both of Portland (Walter H. Evans, Dist. Atty., and C. C. Hindman, both of Portland, on the brief), for plaintiff.

Wilson T. Hume, of Portland, for defendant.

A. L. Leavitt and R. C. Groesbeck, both of Klamath Falls, amici curiae.

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

We consider these matters in their order.

The joint resolution proposing the amendment designated as section 14a was signed by the speaker of the House and president of the Senate on February 19, 1917, and on February 20th was filed with the Secretary of State. Subsequent to the passage and signature by the presiding officers of the joint resolution, but upon the same day (February 19, 1917), Senate Bill 318, providing for submission, was passed by the Senate, sent to the House, and there amended and returned to the Senate, which concurred in the amendments, and the act was signed by both presiding officers, and on February 21, 1917, was presented to the Governor for his approval, and by him approved, and became a law on that date. It is the last expression of the legislative will on the question of the submission of this measure, and seems to be in accord with section 1, art. 17, of our Constitution, and we hold that the amendment was properly submitted and passed.

This being settled, the next question that confronts us is as to the effect of the amendment upon that section of the existing charter of the city of Portland, which provides for the time of holding city elections. A constitutional provision may be self-executing as to part of its provisions and require the aid of legislation as to others. So far as it relates to the date upon which elections are to be held the amendment is definite, self-executing, and mandatory. "Incorporated cities and towns shall hold" their elections at the time therein specified. And again: "All provisions of the charter and ordinances of incorporated cities and towns pertaining to the holding of elections, shall continue in full force and effect except so far as they relate to the time of holding such elections;" the implication being that as to the time of holding such elections such charters were repealed. There can be no logical escape from this conclusion. The requirement that cities and towns should enact such supplementary legislation as might be necessary to carry the provisions of the amendment into effect is also mandatory, and was no doubt passed so as to require such corporations to provide the machinery necessary to carry on the election at the date specified. To prevent a vacancy occurring in any elective office between a possible earlier date for city election and the time for holding the general state election, it was provided that elective officers then in office should hold until their successors were elected and qualified; so that if in a city theretofore holding its election, say in June, there were elective...