Wieder v. Hoss

• Citation: 21 P.2d 227,143 Or. 57
• Parties: WIEDER et al. v. HOSS, Secretary of State (GILL et al., Interveners).
• Decision Date: 26 April 1933
• Court: Supreme Court of Oregon

21 P.2d 227

143 Or. 57

WIEDER et al. v. HOSS, Secretary of State (GILL et al., Interveners).

Supreme Court of Oregon

April 26, 1933

In Banc.

Original proceeding in mandamus by Charles H. Wieder and another, for themselves and all other legal voters of Oregon similarly interested, against Hal E. Hoss, to compel defendant, as Secretary of State, to file a certain referendum petition wherein defendant and also Ray W. Gill and another interveners, demurred to the alternative writ.

Demurrers overruled, and peremptory writ issued.

W. S. U'Ren, of Portland (Leslie E. Crouch, of Portland, on the brief), for plaintiffs.

I. H Van Winkle, Atty. Gen., for defendant.

Roy R Hewitt, of Salem, for interveners.

KELLY Justice.

It is alleged in the alternative writ that on April 15, 1933, plaintiffs, as sponsors of the referendum petition thereinafter set forth and as president and vice president of the Security Owners' Association, as the organization prosecuting said referendum petition, did present and offer to defendant in his official capacity as secretary of state for filing in his office at the capitol in Salem, Or., their referendum petition demanding that Senate Bill No. 244, which was passed by the Thirty-seventh Legislative Assembly of the State of Oregon at its regular session and approved by the Governor of Oregon, should be referred to the people of the state for their approval or rejection at the regular general election to be held throughout the state of Oregon on the first Tuesday after the first Monday in November, 1934, or at the special general election to be held throughout the state of Oregon on the 21st day of July, 1933, and plaintiffs then and there requested defendant, as secretary of state, and within 90 days after the final adjournment of the session of the Legislative Assembly, which passed said Senate Bill No. 244, that defendant present the said petition to the Attorney General of Oregon for a ballot title and instruct the plaintiffs as to the form and size and quality of paper upon which said petition should be printed for circulation for signatures of legal voters.

It is also alleged that defendant, as secretary of state, refused to file said referendum petition, refused to submit the same to the Attorney General for a ballot title, and refused to instruct plaintiffs as requested or at all.

The act referred to provides for the election of a state power commission to consist of three members to be chosen by the electorate.

Among other things, the commission is empowered to withdraw for power development any unappropriated waters of the state from appropriation, as the commission deems wise; to use the waters and lands of the state, not otherwise appropriated, and any material therein or thereon, as the commission shall deem necessary for the purposes of the act; to develop any water power within the state or any water power in any interstate stream, and to acquire, construct, maintain, and operate hydroelectric power plants, transmission and distribution lines in connection therewith; to contract with the United States, with any state or states, or political subdivision thereof or with any political subdivision of water, water power, or electrical energy; to acquire by purchase, lease, or other legal means, lands, water, water rights, easements, water power, electric energy, materials, supplies, and any other thing deemed necessary or convenient by the commission, and to hold such real property and other property for the purposes of the act, provided that the commission may sell, lease, or otherwise dispose of any such property; to exercise the power of eminent domain, to fix rates and charges for the use of water in the development of water power, for the sale and disposal of water power; to control, transmit, distribute, use, sell, and dispose of electrical energy and to fix the rates and charges therefor.

It is argued by defendant and interveners that the act in question is within the exception declared by section 1 of article 4 of the Constitution of the state. That section of the Constitution, inter alia, provides: "The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent. of the legal voters, or by the legislative assembly, as other bills are enacted."

Section 35 of the act in question is as follows: "Section 35. It hereby is adjudged and declared that existing conditions are such that this act is necessary for the immediate preservation of the public peace, health and safety; and an emergency hereby is declared to exist, and ...