Woodward v. Barbur

• Citation: 59 Or. 70,116 P. 101
• Parties: WOODWARD v. BARBUR, Auditor.
• Decision Date: 06 June 1911
• Court: Supreme Court of Oregon

116 P. 101

59 Or. 70

WOODWARD v. BARBUR, Auditor.

Supreme Court of Oregon

June 6, 1911

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Suit by Tyler Woodward against A.L. Barbur, Auditor of the City of Portland. From a decree granting the relief prayed for on the overruling of a demurrer to the complaint, defendant appeals. Reversed.

This is a suit to enjoin placing on official ballots, to be used at an election to be held in Portland, the title of a proposed amendment to its charter, recommended by initiative petitions. It is alleged in the complaint that plaintiff Tyler Woodward, is a resident and taxpayer of Portland, which city is a municipal corporation, and the defendant, A.L Barbur, is its auditor; that a city ordinance makes it incumbent upon that officer to receive for filing initiative petitions, subject to verification as to the genuineness of the signatures of the petitioners, and as to their respective qualifications as electors, to be determined from an inspection of the registration books of Multnomah county and, unless such petition is signed by legal voters equal to 15 per cent. of the votes cast at the last preceding city election, the application is ineffectual; that on April 6 1911, a pretended petition was presented to defendant, containing signatures purporting to be names of legal voters who demanded that a proposed charter amendment be submitted to the qualified electors of the city for their approval or rejection at an ensuing election, setting forth a copy of the measure; that defendant, complying with requirements of such ordinance, found that the feigned petition did not contain the required percentage of names of voters of the city who were registered, nor more than 1,876 thereof, or about 800 less than were necessary to enable the proposed alteration of the charter to be referred to the electors; that notwithstanding such deficiency defendant threatens to place on the official ballots the proposed amendment which, if adopted, will authorize an issue of bonds in the sum of $1,000,000 to secure a municipal paving plant, thereby imposing excessive taxation on plaintiff's property and causing a multiplicity of suits. A demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit. The issue was tried upon the question as to whether or not from a verification of the signatures of the petitioners it was incumbent upon the defendant to reject such names as were not upon the registration books of Multnomah county. The court, concluding that such duty was enjoined, overruled the demurrer, and, the defendant declining further to plead or answer, the relief prayed for in the complaint was granted, and he appeals.

Frank S. Grant and L.E. Latourette, for appellant.

L.A. McNary and W.D. Fenton, for respondent.

MOORE J. (after stating the facts as above).

This court, upon consideration of the cause after it was argued and submitted, reversed the decree without giving a written opinion, in order that the mandate might go down in time to be obeyed prior to the election, and the reasons which induced the conclusions will now be stated.

The question to be examined is, Who are qualified to sign petitions initiating measures to be voted upon at municipal elections? The parts of the organic act deemed to be involved herein and which relate to an employment of the initiative and referendum powers reserved to the people are as follows "The legal voters of every city and town are hereby granted power to enact and amend their municipal charter." Const. Or. art. 11, § 2. "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. Not more than 10 per cent. of the legal voters may be required to order the referendum nor more than 15 per cent. to propose any measure, by the initiative, in any city or town." Id. art. 4, § 7a. Pursuant to the authority thus granted, Ordinance No. 16,311 was duly enacted by the city of Portland, prescribing the forms of initiative and referendum petitions, wherein each petitioner is required to subscribe to the following statement: "I have personally signed this petition. I am a legal voter of the city of Portland. My residence and street number are correctly written after my name." The municipal enactment referred to demands that a petition must consist of sheets to which not more than 20 names can be signed, and the person who circulated the petition is required to make and subscribe to an oath on the back of each sheet to the effect that every one of the petitioners signed his name in the presence of the affiant who believes that the several clauses of the statement last quoted apply, and are true with respect to each petitioner. "The auditor of the city of Portland shall accept for filing any petition for the initiative or for the referendum, subject to the verification of the number and genuineness of the signatures and voting qualifications of the persons signing the same by reference to the registration books in the office of the county clerk of Multnomah county, and if a sufficient number of qualified voters be found to have signed said petition, he shall file the same within ten days after presentation thereof to him." Id. §...