Warren v. Marion County

• Decision Date: 02 June 1960
• Citation: 353 P.2d 257,222 Or. 307
• Parties: Dewitt WARREN, Appellant, v. MARION COUNTY, a political subdivision of the State of Oregon, Rex Hartley, Roy J. Rice, Ed Rogers, W. K. Graber, and Robert Y. Thornton, Respondents.
• Court: Oregon Supreme Court

Page 257

353 P.2d 257

222 Or. 307

Dewitt WARREN, Appellant, v. MARION COUNTY, a political subdivision of the State of Oregon, Rex Hartley, Roy J. Rice, Ed Rogers, W. K Graber, and Robert Y. Thornton, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 21, 1960.

Decided June 2, 1960.

Thomas B. Brand, Salem, for appellant.

Catherine Zorn, Asst. Atty. Gen., and C. L. Marsters, Asst. Dist. Atty., Salem, for respondents. With them on the briefs were Robert Y. Thornton, Atty. Gen., and Hattie J. Bratzel, Dist. Atty., Salem.

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

O'CONNELL, Justice.

This is a suit brought under the Uniform Declaratory Judgments Act (ORS ch. 28) seeking a judgment declaring that the building code ordinance of Marion county is unconstitutional and void and that plaintiff, a building contractor, is not required to comply with its terms.

The complaint alleges that the defendant county's insistence that plaintiff comply with the purported ordinance subjects plaintiff to irreparable loss, and that plaintiff has no adequate remedy at law. The complaint then sets forth the various grounds upon which plaintiff relies in attacking the ordinance. There being no issues of fact that matter was heard on briefs and argument only. The trial court held that the ordinance was constitutional and ordered the plaintiff to comply with its provisions.

The ordinance in question was enacted pursuant to an enabling act, Oregon Laws 1955, ch. 439, § 5, which is now compiled as ORS 215.108. The enabling act itself is attacked by plaintiff on three grounds: (1) that it delegates the authority to promulgate regulations without providing for any definite standards and thus attempts to delegate legislative power in violation of Article II, § 1 and Article IV, § 1 of the Oregon Constitution; and (2) that § 5 of chapter 439 embraces more than one subject and is, therefore, in violation of Article IV, § 20 of the Oregon Constitution; and (3) that the establishment of a building code, dealt with in § 5 is a subject not expressed in the title to the act and is, therefore, in violation of Article IV, § 20 of the Oregon Constitution.

We shall address our attention first to the contention that the act constitutes an invalid delegation of legislative power. The section subject to attack on this score is ORS 215.108, which provides as follows:

'215.108 Building code ordinance. (1) The governing body of a county may adopt ordinances establishing building codes for the county, or any portion thereof, in conformity with the standards set forth in ORS 215.104. Such ordinances may adopt by reference published building codes, or any portions thereof, which conform to such standards, and a certified copy of such code or codes shall be filed with the county clerk of said county.

'(2) Any governing body of a county which adopts ordinances establishing building codes shall by ordinance provide procedures for appeals from decisions made under the authority of the ordinances establishing building codes.'

ORS 215.104 referred to in ORS 215.108 contains no standards which would have any application in the enactment of a building code ordinance. However, ORS 215.055 does contain such standards. ORS 215.055 reads as follows:

'215.055 Standards for development pattern. The development pattern and regulations and ordinances adopted by the commission or the governing body of the county under ORS 215.010 to 215.190 shall be designed to promote the public health, safety and general welfare. The commission and the governing body of the county shall give reasonable consideration, among other things, to the character of the areas involved, the buildings, structures and uses presently in the areas, the peculiar suitability or adaptability of the areas for particular uses, the needs of agriculture, industry and business in the future growth of the areas, the need for healthful surroundings and conditions, the conservation of property values and the direction and trend of building development in the areas. Provisions relating to height, bulk and construction of buildings and the areas of yards, courts and other open spaces shall be uniform for each class of buildings throughout each zoning area included in the development pattern. Provisions relating to the construction, location and use of buildings or structures shall be designed to secure safety from fire and other dangers and to insure sanitary conditions and adequate light, air and access.'

An examination of the history of this legislation reveals that a clerical error was made in the course of amending the bill which eventually became Oregon Laws 1955, ch. 439. In that process one of the sections of the bill was omitted and the sections were then renumbered. However, the reference in that part of the bill which is now ORS 215.108, to the section relating to standards was not changed when the latter section was renumbered. The error is patent in the legislative record. This being so, we are free to make the revision necessary to express the real legislative purpose. State v. Lermeny, 1958, 213 Or. 574, 326 P.2d 768; Kempien v. Board of Com'rs. of Ramsey County, 1924, 160 Minn. 69, 199 N.W. 442; 2 Sutherland, Statutory Construction (3rd ed.), § 4925. We hold, therefore, that ORS 215.108 must be read to make reference to ORS 215.055 for the applicable standards.

Plaintiff contends that even though ORS 215.108 is judicially revised so as to make reference to ORS 215.055, the statutes still do not contain adequate standards. It is argued that ORS 215.055 relates to standards for a development pattern of land use and contains no guideposts which would have any relevancy in delineating a building code. It must be admitted that the objectives set forth in ORS 215.055 are those which relate principally to land use development rather than to the structural characteristics of the buildings in the regulated area. It must also be admitted that the standards contained in ORS 215.055 are stated in general terms. The question is: Must the legislature be more specific if it is to keep the delegation within constitutional bounds. We think not.

There is no constitutional requirement that all delegation of legislative power must be accompanied by a statement of standards circumscribing its exercise. It is true that a contrary view has frequently been expressed in the adjudicated cases, particularly the earlier ones, but the position taken in such cases is not defensible. It is now apparent that the requirement of expressed standards has, in most instances, been little more than a judicial fetish for legislative language, the recitation of which provides no additional safeguards to persons affected by the exercise of the delegated authority. 1 Davis, Administrative Law Treatise, §§ 2.04, 2.05; Forkosch, Administrative Law, § 84. Thus, we have learned that it is of little or no significance in the administration of a delegated power that the statute which generated it stated the permissible limits of its exercise in terms of such abstractions as 'public convenience, interest or necessity' or 'unjust or unreasonable,' or 'for the public health, safety, and morals' and similar phrases accepted as satisfying the standards requirement. 1 Davis, Administrative Law Treatise, §§ 2.03-2.05; Forkosch, Administrative Law, §§ 83, 84.

As pointed out in Davis on Administrative Law, the important consideration is not whether the statute delegating the power expresses standards, but whether the procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the administrative action. 1 Davis, Administrative Law Treatise, §§ 2.10, 2.15, 7.20. See also Peninsula Corporation of Seaford, Del. v. United States, D.C.1945, 60 F.Supp. 174; Heath v. Mayor and City Council of Baltimore, 1946, 187 Md. 296, 49 A.2d 799.

In testing the statute for the adequacy of such safeguards it is important to consider the character of administrative action which the statute authorizes. The statute here authorizes the establishment of building codes, including the adoption by reference of published codes such as the Uniform Building Code which the defendant adopted in modified form. Such codes are in themselves a statement of specific standards for the construction of buildings. The administrative official charged with the duty of enforcing a building code ordinance is called upon to decide whether the specifications set out in the code have been met in the construction of a particular building. His action can, therefore, be tested against the specific description of adequate construction set out in the building code. The statute then requires that the county set up appeal procedures so that persons dissatisfied with the building inspector's action in ruling upon the suitability of materials or construction may have that action reviewed by a separate administrative body. What further safeguards are needed to protect persons subjected to regulation under such a code?

We believe that the appeals procedure required by ORS 215.108(2) provided a sufficient safeguard to persons wishing to contest administrative action in the enforcement of the code. Plaintiff has not mentioned the standards which he thinks would satisfy the requirement for an adequate statute. We doubt that any standards which he could suggest for inclusion in the statute would make any clearer the scope of the delegated power or contribute materially to the protection of a citizen against unwarranted administrative action. We hold that ORS 215.108 constitutes a valid delegation of legislative power.

Plaintiff next attacks the building code on the ground that it fails to provide any procedure for appeals as required by the enabling act. ORS 215.108(2) provides as follows:

'215.108 Building code ordinance. (1) The governing body of a county may adopt ordinances...