Priest v. James

BROWN, J. It is a familar principle of law that the authority to hold an election of officers of the government is legislative and political, and that equity cannot enjoin the exercise of such power: 2 Joyce on Injunctions, § 1386-a. This rule has been upheld time after time. It does not apply, however, to void elections such as the proposed election involved herein. If the County Court in this case had no jurisdiction to order an election to be held for the creation of a port district already within the boundaries of a lawfully existing port district, the case is properly before us. The cause is here. It presents an important public question, and should be determined *76 upon the merits rather than sent back upon some finely drawn technical distinction. Besides, it appears to the writer to be for the mutual welfare of all the interested parties to have the matter determined now. If this court had no jurisdiction of the subject matter of this suit, we should consider no other question. But, being possessed of jurisdiction, we shall proceed to the question raised as to the validity of the organization of the Port of Siletz Bay. As to the authority of a court of equity in the premises, see Carman v. Woodruff, 10 Or. 133; Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328, 120 Am. St. Rep. 786); McKinney v. Watson, 74 Or. 220 (145 Pac. 266); Ward v. Klamath County, 108 Or. 574 (218 Pac. 927); Hamilton v. Rudeen, County Commissioner, 112 Or. 268 (224 Pac. 92). The original Port of Newport was organized under the provisions of Chapter 39, General Laws of Oregon, 1909, which act was entitled: “An act to provide for incorporation under general law of ports in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea, and to provide for the manner of incorporating such ports, and defining the powers of ports so incorporated, and declaring an emergency." The legislative assembly of 1911 enacted Chapter 115, General Laws of Oregon, 1911, being an act, “To provide for the changing of the boundaries of ports, and providing the manner for proceeding for annexing new territory thereto.” In 1917, Chapter 177, General Laws of Oregon, 1917, was passed. Its title reads: “An Act to provide for the changing of the boundaries of municipal corporations known as ports by *77 the annexation of territory thereto lying within a county other than that county in which said ports are now located, and providing the manner for proceeding for annexing new territory lying within a county other than that county in which said ports are now located.” The same legislative assembly enacted Chapter 103, General Laws of Oregon, 1917, the same being an act, “To amend Section 7 of Chapter 115 of the General Laws of Oregon of 1911 * * *” As amended, Section 7 reads: “The territory annexed to any port under the provisions of this act must be contiguous to the port and in one continuous tract, and may be annexed regardless of whether or not all such territory lies in the same watershed * ® .” The several acts above referred to provide for the annexing of territory to the original port, but it will be noted that they make no provision for the withdrawal of territory from a duly organized port. These acts, constituting the law relating to the organization of municipal corporations designated as ports, are codified as Sections 7156-7229, Or. L. Chapter 325, General Laws of Oregon, 1921, amends Sections 7166, 7206 and 7210, Or. L., relating to boards of commissioners of ports and the changing of boundaries and names of such ports. The record in this case discloses that the Port of Newport was lawfully organized and lawfully extended its limits over the territory comprising the proposed Port of Siletz Bay, and that no part of the realty within the boundaries of Newport has ever been withdrawn. The Port of Newport was organized under a general law of this state, by the lawful voters *78 residing within the boundaries of the port district. The port is governed by five commissioners, with full power to do all things necessary for carrying out the purposes of the organization. It is stipulated that the election involved herein was held under the general law of this state for the purpose of incorporating the proposed port. The election was not for the purpose of enacting law to divide the territory of the Port of Newport. It was an election to vote under a local option law, to determine the question as to whether the territory embraced in the initiative petitions should constitute another municipality situate wholly within the municipality of the Port of Newport. It has frequently been decided in the various jurisdictions of this country that two lawfully organized municipal corporations cannot, at the same time, exercise their functions over the same population and territory. On this subject, we take the following from 1 McQuillin, Municipal Corporations, Section 264: “It is a self-evident proposition that two public corporations of the same kind cannot exercise like or similar powers in the same boundaries.” To the same effect is 7 McQuillin, Municipal Corporations (Supp.), Section 264. Also see 1 Dillon, Municipal Corporations (5 ed.), Section 354, where it is written: “There cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdictions, and privileges In support of the foregoing proposition, the case of Taylor v. City of Fort Wayne, 47 Ind. 274, is fre *79 quently cited. In that case the court, in a strong and well-reasoned opinion, wrote: “That is so glaring and manifest that an enumeration and comparison of the powers and duties of the two sets of officers are unnecessary. ‘There cannot be two corporations for the same purposes with coextensive powers of government extending over the same district,' Grant, Corp., 18. ‘There cannot be two such effective corporations in the same place; for, instead of good order, that would only be productive of anarchy.’ The King v. Pasmore, 3 Term Rep. 243. ‘There cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction, and privileges.’ Dillon, Munic. Corp., §125. The proposition that two independent governments cannot exercise the same powers, within the same district, at the same time, is a self-evident one.” The doctrine announced by the Indiana court in that case is sound, and we adopt it as our own. See, also, State v. Port of Astoria, 79 Or. 1 (154 Pac. 399) ; State ex rel. School Dist. No. 8 v. Goff, 110 Or. 349 (218 Pac. 556, 221 Pac. 1057). Many additional authorities might be cited in support of the proposition hereinabove set out. By the great weight of authority, we are compelled to affirm this cause. Affirmed. Rand, C. J., and Bean and Belt, JJ., concur.