Tichner v. City of Portland
| Decision Date | 29 August 1921 |
| Citation | 101 Or. 294,200 P. 466 |
| Parties | TICHNER v. CITY OF PORTLAND ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; John McCourt, Judge.
Action by Abe Tichner against the City of Portland, and others. Judgment for plaintiff, and defendants appeal. Affirmed.
The Legislative Assembly of 1921 passed an act known as the "Local Budget Law" (Laws 1921, p. 228), which was approved February 18th of that year. At the same session it also passed an act known as the "Tax Supervising and Conservation Commission Act" (Laws 1921, p. 410), which was approved February 23d. Both acts contemplate the formation of a budget for the purposes of taxation in municipalities. The former by its terms applies to all counties, cities, towns, ports, school districts, union high school districts, road districts, irrigation districts, water districts, dock commissions, and all other public or quasi public corporations that have power to levy a tax upon property in the state. The latter is adapted only to such institutions in "each county in this state which now has or shall hereafter attain a population of one hundred thousand or more inhabitants." Section 3.
The Local Budget Law contemplates the making and publishing of estimates by each municipal corporation mentioned, together with the original estimate sheets of each officer and department from which the estimates themselves have been compiled. The levying board in each municipality is required to appoint from the qualified electors and freeholders of the municipality individuals equal in number to the personnel of the levying board itself, to act with the board in considering the estimates and compiling the budget. At the hearing upon the budget, all the taxpayers are authorized to be present and discuss it with the board. In the levy of taxes in such cases the board is limited to the estimate plus 10 per cent. thereof, unless a greater levy is authorized by a direct vote of the people of the municipality at a meeting duly and regularly called.
Under the Tax Supervising and Conservation Commission Act, no publication of estimates and other data of that nature is required. The commissioners are appointed by the Governor. To them each municipality in the county, as well as the county itself, is required to submit its estimates. The commission considers the estimates, giving to each municipality or any person interested the right to be heard prior to the actual levy of any tax. While the commission does not itself, in the first instance, levy the tax, it fixes the amount to be levied by each municipality, and directs the levying board thereof to make the levy accordingly, so that the duty of the latter board is merely ministerial. In default of the levy by the municipal board in accordance with the direction of the commission, the commission itself may make the levy.
The present suit is brought by plaintiff as a freeholder and taxpayer within the limits of the city of Portland, to restrain the officers of the city from incurring the expense of publication of the estimates and the detail sheets from which they are to be compiled, claiming that thereby his burden of taxation would be unnecessary and unlawfully increased. He avers that the defendants are proceeding to expend a large amount of money unnecessarily, and are threatening and intending to itemize to the utmost detail all the supplies and expenses required for the ensuing fiscal year, thereby incurring much useless expense. In brief, the substance of this complaint is that the officials of the city of Portland are about to operate under the Local Budget Law so called, in preparing and publishing the estimates for the budget, whereas they are properly governed only by the Tax Supervising and Conservation Commission Act.
The circuit court overruled a general demurrer to the complaint and entered a decree to the effect that all expenditures to be made of money derived wholly or in part by public taxation should be listed and itemized in the budget, but such things as local improvements, to be paid for by assessments of abutting property, and not by general public taxation, should not be included in the estimate. The defendants appeal from substantially the entire decree. The plaintiff also appealed from part of the decree, contending that the court erred in holding that the water bureau of the city, and other self-sustaining bureaus and special tax levies and street and sewer improvements, are excluded from the operation of the act, except where the cost of such improvements is to be paid in whole or in part from the funds raised by taxation.
Frank S. Grant and Lyman E. Latourette, both of Portland, for appellants.
Walter H. Evans and Wm. H. Hallam, both of Portland (Fred W. Mulkey of Portland, of counsel), for respondent.
BURNETT C.J. (after stating the facts as above).
The question presented for decision is to be determined by ascertaining whether or not the Tax Supervising and Conservation Commission Act is a general law, or a special or local law, applying, as it purports, to "each county in this state which now has or shall hereafter attain a population of one hundred thousand or more inhabitants." The defendants contend that the act in question is prohibited by subdivision 10 of section 23 in article 4 of the Oregon Constitution which reads thus:
It is to be observed at the outset that the act is made to apply to each county in the state which now has or shall hereafter attain the prescribed population. It is admitted in argument that Multnomah county is the only county in the state at present containing the required number of inhabitants to make it amenable to the act. That fact alone does not determine the issue. In Wheeler v Philadelphia, 77 Pa. 338, the court held directly that a classification of cities according to their population is constitutional, under an organic law that prohibited special or local legislation, and this, too, although the city of Philadelphia was then the only city in the first class. Kilgore v. Magee, 85 Pa. 401, has a syllabus which reads thus:
"The Legislature has power to classify cities according to the number of their population, and the fact that some of these classes contain each but one city does not make such classification invalid, or bring it within the constitutional provision of section 7, art. 3, of the Constitution, which forbids local or special legislation."
In Denman v. Broderick, 111 Cal. 96, 43 P. 516, after condemning the classification involved in that case, the court held that, if in other respects it had complied with the Constitution, the fact that a certain class contained only one or two municipalities would not invalidate the scheme. In this state that point is settled by the case of Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am. St Rep. 457, where it was decided that a primary election law applicable to cities having a population of 10,000 or more was not local or special merely because the city of Portland was at that time the only one in the state having the required population.
The case of State ex rel. v. Swigert, 59 Or. 132, 116 P. 440, is to be distinguished on this point. There an attempt was made by the Legislative Assembly to provide for the appointment of the commissioners of any port which contained within its boundaries a population of more than 100,000 as shown by the last federal census. In substance, the court there ruled that this language was restrictive, and applied only to such cities as at that time contained that number of inhabitants, and excluded all others that might thereafter attain that population. In other words, the effect of the language was to describe only the port of Portland, without reference to any other city either then or thereafter existing which possessed the same characteristics. The clear inference to be drawn from the language of the opinion, however, is that, if its legislation had provided for the admission of other cities to that class as they became qualified, the act in that respect would have been valid.
The most important question to be considered is whether the classification is based upon any real difference between Multnomah county and other counties of the state, so as to justify peculiar procedure in...
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...decisions of this court to the same effect.17 See Branch v. Albee, 71 Or. 188, 197-98, 142 P. 598, 600 (1914).18 See Tichner v. Portland, 101 Or. 294, 301, 200 P. 466 (1921), citing Rose v. Port of Portland, supra n. 11.19 See Constitution of Rhode Island, Amendment 28, § 4 (1951); Constitu......
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... ... Common Council of City of North Bend, 171 Or. 329, 337, 137 P.2d 607; Burton v. Gibbons, 148 Or. 370, 374, 36 P.2d 786; Rose v. Port of Portland, 82 Or. 541, 548, 162 P. 498; State ex rel. v. Port of Astoria, 79 Or. 1, 10, 154 P. 399. The problem before us is peculiar to the state of Oregon ... The validity of the act had been upheld in Tichner v. City of Portland, 101 Or. 294, 200 P. 466. Thereafter the city again challenged the constitutionality of the act as being in violation of Article ... ...
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...before the effective date of the act. They rely on State ex rel v. Swigert, 59 Or. 132, 116 P. 440 (1911), and Tichner v. Portland et al., 101 Or. 294, 200 P. 466 (1921). In both, legislation based on population was challenged. In Swigert, the legislation provided for the appointment of com......
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