State v. Poulsen

• Decision Date: 24 October 1932
• Citation: 140 Or. 623,15 P.2d 372
• Parties: STATE ex rel. HUCKENSTEIN v. POULSEN, City Recorder.
• Court: Oregon Supreme Court

15 P.2d 372

140 Or. 623

STATE ex rel. HUCKENSTEIN v. POULSEN, City Recorder.

Supreme Court of Oregon

October 24, 1932

In Banc.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Mandamus proceeding by the State, on the relation of August Huckenstein, against Mark Poulsen, as City Recorder of the City of Salem. From a judgment directing the issuance of a peremptory writ of mandamus to compel the Recorder of the City of Salem to do certain things as such officer, defendant appeals.

Judgment reversed, and writ dismissed.

William H. Trindle, of Salem, for appellant.

Walter E. Keyes, of Salem (Keyes & Page, of Salem, on the brief) for respondent.

BELT J.

This is an appeal from the judgment of the circuit court directing the issuance of a peremptory writ of mandamus to compel the recorder of the city of Salem to do certain things as such officer, relative to the submission to the voters of said city at the general election in November the question of the repeal of section 90 of the charter which authorizes the issuance of bonds for the purpose of constructing or purchasing a water system. Initiative petitions requesting the submission of the proposed charter repeal were filed with the city recorder on October 5, 1932. After the city attorney, on October 8, 1932, had furnished a ballot title as follows:

"Proposed by Initiative Petition:

"Shall Section 90 of the Charter of Salem. Oregon, authorizing acquisition of municipal water system; issuance of bonds not exceeding Two Million Five HUndred Thousand Dollars to pay for and improve same; authorizing appraisal and purchase plant and property of Oregon-Washington Water Service Company or construction of new system and additions and betterments; providing methods for condemning necessary property; creating water commission to operate system acquired or constructed; providing for election of commissioners, prescribing duties of commission and disposition of revenues; removing debt limitation for purpose such amendment, adopted December 15, 1931, be repealed?

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506 YES I vote for repeal

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507 NO I vote against repeal,"

-the city recorder, on the same date, certified the ballot title as thus prepared and forwarded the same to the county clerk to be printed on the official ballot to be used at the general election on the 8th of November. The county clerk refused to file the ballot title or to print the same on the official ballot for the next general election for the reason that it had not been certified to him within the time provided by statute.

Thereupon the plaintiff instituted two mandamus proceedings: (1) To compel the county clerk to print the above initiative measure on the general election ballot; and (2) to compel the city recorder to print a special ballot to be used at the general election whereby this initiative measure alone would be submitted to the voters for their approval or rejection, and to do certain other things necessary for the submission of such measures at a general election. The first action against the county clerk was dismissed. Relative to the second and instant proceeding, the circuit court directed the issuance of a peremptory writ commanding the city recorder: (1) To print ballots for such measure to be used at the next general election to be held in the city of Salem; (2) to print ballots in accordance with the ballot title set out in the mandate, with Number "100 YES I vote for repealing the law," and "101 NO I vote against repealing the law"; (3) to print copies of the proposed charter amendment and mail such copies to each voter in the city of Salem ten days before election; (4) to deliver such ballots when prepared to the judges and clerks of the general election; (5) to provide and furnish ballot boxes for such general election; (6) to deliver such ballot boxes to the judges of the general election; (7) to furnish election supplies to such judges and clerks of the general election; (8) to do anything necessary toward the holding of a general election as Ordinance No. 1464 provides.

It is conceded that Ordinance 1464 is the only ordinance of the city of Salem which provides a method for the exercise of the power of initiating laws by a direct vote of the people of the city, which power is vested in the municipality by virtue of art. 4, § 1a, of the Constitution of Oregon.

Article 4, § 1a, of the Constitution of Oregon provides: "*** 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. ***"

This court, in construing the above constitutional provision, has held that the state law providing for the exercise of the power of initiative has no application to municipalities which have provided their own method of procedure. Colby v. City of Medford, 85 Or. 485, 167 P. 487; Curtis v. Tillamook City, 88 Or. 443, 171 P. 574, 172 P. 122. It follows that, if a city does not provide for a complete procedure, the state law, so far as it does not conflict with the procedure provided by the municipality, controls. It is plain from an inspection of Ordinance 1464 that the city did not undertake to provide a complete procedure for the exercise of the initiative, as section 14 thereof provides:

"The laws of the State of Oregon providing for carrying into effect the initiative and referendum in respect to municipal legislation shall be followed in the city of Salem, Oregon, in every other particular except as in this ordinance provided."

Turning to the ordinance in question, we find no provision therein for the recorder to do some of the things which the writ commands him to do. It is elementary that the extraordinary remedy of mandamus cannot be invoked to compel an officer to do something which the law does not make it his duty to do. If the recorder is to be compelled to do those things specified in the writ, it must be by virtue of the ordinance in question. As stated in Putnam v. Kozer, 119 Or 535, 250 P. 625, 627: "The law must not only authorize the act, but it must require the act to be done." Citing in support thereof, United States v. Lamont, 155 U.S. 303, 15 S.Ct. 97, 39 L.Ed. 160. Also...