Yamhill County v. Dauenhauer
| Decision Date | 12 August 1971 |
| Citation | 487 P.2d 1167,6 Or.App. 422 |
| Parties | YAMHILL COUNTY, a political subdivision of the State of Oregon, and Marion County, a political subdivision of The State of Oregon, and Jack Beeler, Yamhill County Clerk, Respondents, v. Carl J. DAUENHAUER, Richard Bodeen, Waldron A. Johnson, Marvin DeRaeve, Fred O. Bowyer, John Michael, Jr., Norval Goffena, John DeJong, Donald R. Massey, Glen W. Dickey, Jr., Kenneth N. Knutson, Eldon Fendall, Harold L. Mendenhall, Franklin Dale Schmitz, George M. DeRaeve, Andrew C. Van Otten, Irving S. Hanger, Melvin Bernards, Lois Bernards, Viola Sitton, Elmer Bernards, Noble Oberg, Appellants. |
| Court | Oregon Court of Appeals |
Edward N. Fadeley, Eugene, argued the cause and filed the brief for appellants.
Donald R. Blensly, McMinnville, argued the cause for respondents Yamhill County and Jack Beeler, Yamhill County Clerk. With him on the brief was Duane Ertsgaard, Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
The defendants appeal from a declaratory judgment decree of the circuit court which held that an initiative measure proposed in Yamhill County 'is not a proper and authorized exercise of the initiative procedure * * *.'
In September 1968, the Board of Yamhill County Commissioners placed a bond measure on the general election ballot. It proposed financing the construction of a bridge across the Willamette River to Marion County. The measure passed, as did a similar one in Marion County. Each county was to pay one-fourth of the cost of construction, the balance being borne by a federal grant which had already been approved.
Well over a year later the proposal for bids on the bonds was let. It was at this time that the defendants began initiative proceedings which would put before the voters of Yamhill County a measure preventing the county from participating in construction of any bridge across the Willamette River. This effectually stopped the sale of bonds, since a revocation of the county's authority to build the bridge would necessarily vitiate the bonds. The County Clerk of Yamhill County brought this declaratory judgment proceeding after the initiative petitions, with the requisite number of signatures, had been filed.
If the initiative were simply one designed to revoke a favorable vote on a bond issue, the resolution of the question against the defendants would be simple. Tillamook Peoples' Utility District v. Coates, 174 Or. 476, 149 P.2d 558 (1944). In 15 McQuillin, Municipal Corporations 287, § 40.18 (1970), the general rule is stated:
'If the vote is in favor of the proposition submitted as incurring an indebtedness it is final and conclusive * * *.'
However, the measure submitted in the case at bar has a broader effect than just the vitiating of the bond issue. The initiative proposal states:
'Notwithstanding any contrary previous decision made by a majority vote of the Yamhill County Commissioners, Yamhill County shall in no manner undertake the construction of, or participate in any manner in the construction of, any bridge or bridges, crossing the Willamette River.'
The initiators contend that this is county legislation aimed at the decision of the commissioners to build the bridge, not at the bonding procedures; therefore, it is a proper subject for the initiative. Art. IV, § 1(5) of the Oregon Constitution provides in part:
'The initiative and referendum powers reserved to the people * * * are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district * * *.'
Plaintiffs, on the other hand, assert that the initiative here is administrative in nature and its sole purpose is to get a second election on the already approved bond issue. The difference between an administrative matter, which cannot be the subject on an initiative or referendum, and a legislative matter, which can be, is treated in detail in Monahan v. Funk, 137 Or. 580, 3 P.2d 778 (1931). The crucial test, according to that case, is whether the measure is one making a law or one executing a law already in existence.
Although the initiative measure in the case at bar Appears to be legislative in character, according to most of the tests set up in Monahan, this does not determine the matter. In 5 McQuillin, Municipal Corporations 212--213, § 16.55 (1969), it is said:
'* * * (I)f the subject is one of statewide concern in which the legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for local implementation of state policy, the action receives an 'administrative' characterization, hence is outside the scope of the initiative and referendum.'
Counties are municipal corporations--creatures of the state. ORS 203.010. Their authority in non-Home Rule counties like Yamhill extends only to what is provided by state law. ORS 203.120.
Just as a city has no authority to divest one of its officers of authority conferred upon him by a valid state law, it follows that a county has no authority to divest itself of authority conferred upon it by a general law of the state applicable to counties. This is particularly true where the authority is conferred in order to accomplish a purpose beneficial to the state at large. See Grayson; Heer v. State, 249 Or. 92, 97--100, 436 P.2d 261 (1968); In re Application of Boalt, 123 Or. 1, 260 P.2d 1004 (1927).
ORS 203.120 provides:
'The county court has the authority and powers pertaining to county commissioners to transact county business, as follows:
'* * *
'(4) To provide for...
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