Roy v. Beveridge

McBRIDE, J. In tbe first place it seems proper to consider tbe extent of tbe power of tbe city council of Portland to pass an emergency ordinance. Section 28 of Article IV of tbe Constitution is as follows: “When Act to Take Effect. No act shall take effect until ninety days from tbe end of tbe session at wbicb tbe same shall have been passed, except in case of emergency; wbicb emergency shall be declared in tbe preamble or in tbe body of tbe law.” This refers only to acts of tbe legislature and has no relevancy in respect to tbe passage of a city ordinance. In Section 1 of Article IV of tbe Constitution as amended June 2, 1902, wbicb section deals with tbe referendum powers of tbe people with respect to laws passed by tbe legislature, it is provided that tbe referendum may be ordered “except as to laws necessary for tbe immediate preservation of tbe public peace, health or safety” by petition, et cetera. But standing alone this section does not in any way affect tbe power of cities to pass ordinances or authorize a referendum of such ordinances. On June 4, 1906, tbe people by tbe initiative further amended tbe Constitution in reference to tbe exercise of tbe initiative and referendum power, such amendment being designated as Section la, Article IV, of tbe Constitution. That portion of tbe section relevant to tbe question here under discussion is as follows: “Tbe initiative and referendum powers reserved to tbe people by this constitution are hereby further reserved to tbe legal voters of every municipality and district, as to all local, special and municipal legisla *96 tion, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall he 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.” By reference to Section 1 of Article IV, we find that the people have the power to invoke the referendum on all laws passed by the legislature except those necessary for the immediate preservation of the public peace, health or safety. By Section la of Article IV, we find that these same powers are granted to the voters of municipalities, neither greater nor less. There are two methods prescribed by either of which these powers may be exercised by the municipalities. First, by pursuing the method provided by the state law, and second, by a method of their own prescription. The municipalities find themselves subject to certain powers granted the voters by the Constitution with, however, the right to provide the manner in which they shall be exercised. The word “manner” means “method” or “way.” In other words, in order for a legislative act, whether passed by the legislature or a city council, to be effective as an.emergency measure, it must appear that in the judgment of the legislature, the immediate efficacy of the act or ordinance is necessary for the immediate preservation of the peace, health or safety of the community, and in Kadderly v. Portland, 44 Or. 118 (74 Pac. 710, 75 Pac. 222), this court in an exhaustive and masterly opinion by Mr. Justice Robert S. Bean held that power of determining existence of such an emergency was exclusively with the legislature and that the courts had no authority to question that determina *97 tion. That opinion is supported by the great weight of authority and has been consistently followed by this court since that date. But the charter of the City of Portland contains the following provision: “An emergency ordinance may be enacted upon the day of its introduction, providing that it shall contain the statement that an emergency exists and specify with distinctness the facts and reasons constituting such emergency.” In Joplin v. Tenbrook, 124 Or. 36 (263 Pac. 893), we held that a similar provision in the charter of the City of Astoria was valid and that an ordinance, which not only proposed to call a special election but proposed to submit to the voters an ordinance palpably in violation of the express provisions of the Constitution of the state, clearly disclosed on its face that such ordinance was not necessary for the peace, health or safety of the city and was void. That ordinance not only proposed that a special election should be held but attempted to repeal various ordinances of the city in regard to the manner of holding election and imposed severe penalties upon persons violating its provisions. We held that the ordinance in question was an attempt at general legislation and that instead of being a mere administrative act, as in the case of Campbell v. City of Eugene, 116 Or. 264 (240 Pac. 418), it was an attempt to avoid a referendum of the ordinance, which the council proposed to submit to the voters, and therefore void. The distinction between the case of Joplin v. Tenbrook, supra, and the case of Campbell v. City of Eugene, supra, is clear. In Campbell v. City of Eugene, supra, the council attempted no general legislation, but simply called a special election as it had a *98 right to do, and we held that an ordinance passed under such circumstances was not municipal legislation, but a mere administrative act. We quote from the opinion of Mr. Justice Bean as follows: “Whatever may be the requirement as to the form of the enactment, the action of a municipal council relating to subjects of a permanent or general character is municipal legislation, while those which are temporary in their operation and effect or administrative are not municipal legislation: 2 Abbott’s Municipal Corp., §§ 514, 516; 1 Beach on Public Corp., §§ 483, 484, 486, 21 Am. & Eng. Ency. of Law (2d ed.), 948; 28 Cyc. 347; City of Alma v. Guaranty Sav. Bank, 60 Fed. 203 (8 C. C. A. 564); City of Lincoln v. Sun Vapor Street Light Co., 59 Fed. 756 (8 C. C. A. 253); City of Central v. Sears, 2 Colo. 589. The distinction between acts that are legislative and those that are administrative is not destroyed by reason of the fact that the charter of the city may require the latter to be accomplished by an ordinance: Long v. City of Portland, 53 Or. 92 (98 Pac. 149, 1111), supra; Shaub v. Lancaster City, 156 Pa. 362, 366 (26 Atl. 1067, 1068, 21 L. R. A. 691). The fact that an order for a special election must be effected by an ordinance and not by a resolution will not bring the act within the classification of municipal legislation: 1 Beach on Public Corp., § 484. * * “The legislature of this state enacted a law, which was in force in the city of Eugene, providing for ordering special elections to be held to vote upon municipal measures, and the common council of the city in calling or ordering this special election was making no general law, enacting no legislation, but was simply and purely carrying out or executing a law already made by the legislature. An accurate test of the question as to whether an action of the common council is legislative or administrative is the determination of the question whether the act of the *99 council was making a law or executing one already in existence.” The opinion in the Campbell v. City of Eugene case clearly states the law and absolutely fits and settles the case at bar. To refer a call for a referendum would institute a series of referenda and would lead nowhere. The court is not here concerned with the emergency clause on Ordinance No. 54190, which proposed to grant permission to the Northwestern Electric Company to sell its properties to the Portland Electric Power Company. It is conceded that it is a valid ordinance except as to the emergency clause. Even if the emergency clause were invalid, it would still be a valid ordinance and would take effect from the date of its approval by the people. Ordinance No. 54191 and Resolution No. 18212, being mere administrative acts of the council, are not subject to referendum: Campbell v. City of Eugene, supra. Holding as we do, that the proceedings for the submission of Ordinance No. 54190 are valid, we come to the effect of the calling of this special election has upon the right of plaintiff to change her registration. This is governed by Section 4057, Or. L., which was originally Section 4, Chapter 225, Laws 1915, the title of which is as follows: “An Act to provide for the registration of voters, providing the manner of such registration, the time of such registration, the duties of the county clerk in respect to such registration, for the appointment of official registrars, defining their duties, providing for penalties for violation of this act, providing that this act shall apply to certain municipal corporations, and repealing sections 3447, 3448, 3449, 3450, 3451, 3452, 3453, 3455, 3456, 3457, 3458, 3459, 3460, 3461, 3462, 3463, 3464, 3465, and 3466 of Lord’s Oregon Laws, *100 and Chapter 323 of the General Laws of Oregon for 1913.” The particular section above referred to is as follows: “Section 4. The county clerk shall register any qualified elector who may request to be registered at any time after the first Monday in January, 1916, except that he shall refuse to register any elector during 30 days next preceding any general or primary election, or 15 days next preceding any special election, held throughout the county. In case such special election is not held throughout the county, he shall not register any electors residing in any precinct in which a special election is to be held during the 15 days next preceding such special election. If the county clerk wrongfully refuses to register any qualified elector, such elector may proceed by mandamus to compel him to do so. This law shall not operate to prevent any additional registration required by the charter or ordinance of any incorporated city or town.” It seems clear both from the title of the act and the section above quoted that the County Clerk acted entirely within his duty in closing the registration books up to the date of the proposed election and that the plaintiff will lose the privilege of voting on the question of merger of power companies. However, if she exercises the same zeal to have her registration changed after the special election as she has under existing circumstances, she will have the inestimable privilege of voting at the May primaries and at the November election. The writ is dismissed. Writ Dismissed. Band, C. J., did not participate in this case.