Unlimited Progress v. City of Portland

• Decision Date: 16 April 1958
• Citation: 213 Or. 193,324 P.2d 239
• Parties: UNLIMITED PROGRESS, an Oregon Non-Profit Corporation, Everett Mitchell, Edwin L. Mays, Robert W. Hocks, and Robert F. Atwood, Appellants, v. CITY OF PORTLAND, Will E. Gibson, City Auditor, Terry D. Schrunk, Mayor, Ormand R. Bean, Commissioner, William A. Bowes, Commissioner, Stanley Earl, Commissioner, and Nathan A. Boody, Commissioner, Respondents.
• Court: Oregon Supreme Court

Page 239

324 P.2d 239

213 Or. 193

UNLIMITED PROGRESS, an Oregon Non-Profit Corporation Everett Mitchell, Edwin L. Mays, Robert W. Hocks and Robert F. Atwood, Appellants, v. CITY OF PORTLAND, Will E. Gibson, City Auditor, Terry D Schrunk, Mayor, Ormand R. Bean, Commissioner, William A Bowes, Commissioner, Stanley Earl, Commissioner, and Nathan A. Boody, Commissioner, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 9, 1958.

Decided April 16, 1958.

E. J. Burrows, Portland, argued the cause for appellants. With him on the brief were Mark Hathaway and Ben G. Fleischman, Portland.

Alexander G. Brown, City Attorney, and Marian C. Rushing, Deputy City Attorney, Portland, argued the cause and filed a brief for respondents.

PERRY, Chief Justice.

The plaintiffs commenced this suit in the circuit court of Multnomah county to enjoin the defendant, Will E. Gibson, and other city officials from placing on the ballot for submission to the voters at the election on May 16, 1958, an initiative measure ¹ relating to the exposition-recreation center now in the process of development in the city of Portland.

The plaintiffs in their complaint, after alleging the initiative petition is in proper form, properly verified and all statutory requirements have been met permitting it to be filed, allege the subject matter of the proposed measure is administrative in nature since the site for the center has already been selected and, therefore, is not subject to review; that there has been expended more than two million dollars at a present site previously selected by the commission, and any change in location will now result in a great loss of these moneys already expended; and generally the proposed act is unconstitutional.

The defendants demurred to the complaint and, the demurrer having been sustained by the trial court, the plaintiffs appeal.

It is not necessary for us to consider the constitutional validity of the proposed measure as attacked in plaintiffs' complaint. It may be that should this measure receive the approval of a majority of the voters in the city of Portland the reasons for invalidity of the measure set forth in plaintiffs' complaint would void its enforcement. However, if a proposed measure is legally sufficient in that all the provisions of the law relating to initiative measures have been formally complied with so that the measure, regardless of the legality of the subject matter and substance contained therein, will require an administrative official to place it upon the ballot for consideration of the voters, the courts will not interfere with the attempt to enact the measure. It is only after the proposed measure is enacted that the courts have power to declare the measure ineffectual in law. Such is the established law of this state governing initiative measures proposed by the people of the state when acting in full compliance with the legal requirements of the initiative provisions of the constitution and laws of the state. State ex rel. Stadter v. Newbry, 189 Or. 691, 222 P.2d 737; State ex rel. Carson v. Kozer, 126 Or. 641, 270 P. 513.

We are of the opinion this rule of law applies with equal propriety and force to municipal measures.

The judgment of the circuit...