ACME Dairy Co. v. Astoria

Opinion by Mr. Justice Moore. The question to be considered is whether or not the Common Council of Astoria possessed power to prescribe the manner of amending the city charter. Article IV of the state constitution was amended June 4, 1906, by inserting therein Section la as follows: “The referendum may be demanded by the people against one or more items, sections or parts of an act of the legislative assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections or parts of an act shall not delay the remainder of that act from becoming operative. The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their -respective immicipalities and districts. 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. No more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure, by the initiative, in any city or town.” It is argued by plaintiff’s counsel that the right so retained by the legal voters of an incorporated city or town to provide for the manner of exercising the initiative and referendum powers is -expressly limited by the amendment to the enacting or repealing of ordinances, etc.; that an amendment of a charter can now be secured only by the legal voters, whose acts in these [523] respects are not within the class designated as municipal legislation; that the right reserved by the constitutional amendment is not self-executing,, and cannot be carried into effect in the absence of a general statute prescribing the mode of its exercise, and hence errors were committed in sustaining the demurrer and in dismissing the suit. 1. In construing a provision of a written constitution, the primary inquiry is to ascertain the intent of the framers and of the people who adopted the clause under consideration, to determine which, effect should be given to all the words used (Rugh v. Ottenheimer, 6 Or. 231: 25 Am. Rep. 513), disregarding technical rules and adopting a mean between a strict and a liberal construction: 8 Cyc. 730; 5 Cur. Law, 622; 6 Am. & Eng. Enc. Law (2 ed.), 921. A section of the fundamental law is self-executing when it prescribes a rule, the application of which puts into operation the constitutional provision: Cooley, Const. Lim. (5 ed.) 100; 6 Am. & Eng. Ene. Law (2 ed.), 912. The amendment quoted having expressly authorized cities and towns to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation, the provision is therefore self-executing in respect to the class of enactments specified. 2. This being so, the decision herein much hinge on the meaning of the phrase “municipal legislation” as understood by the persons mentioned. To understand the signification of these words requires an interpretation of the term “local and special legislation,” the right to formulate rules in relation to which is impdiedly denied to cities and towns, on the ¡irineiple that the expression of one thing is the exclusion of another. 3. The qualifying words “local” and “special” are synonymous (Smith v. Grayson County, 18 Tex. Civ. App. 153: 44 S. W. 921), and, in the sense in which they are used, mean any enactment that is plainly intended to affect a particular person or thing or to be in effect in some specified locality only: Ladd v. Holmes, 40 Or. 167 (66 Pac. 714: 91 Am. St. Rep. 457). 4. The words “municipality” and “district” as used in the clause of the amendment adverted to are evidently expressions of [524] equivalent import, for a district legally created from a designated part of the state and organized to promote the convenience of the public at large is a municipal corporation: Cook v. Port of Portland, 20 Or. 580 (27 Pac. 263: 13 L. R. A. 533). The authority of such a corporation has been heretofore derived from an act of the legislative assembly creating it, and, as such statute is applicable to and enforceable in a part of the state only, it is a local or special law: Maxwell v. Tillamook County, 20 Or. 495 (26 Pac. 803); Ellis v. Frazier, 38 Or. 462 (63 Pac. 642: 53 L. R. A. 454); Baker County v. Benson, 40 Or. 207 (66 Pac. 815). Prior to June 4, 1906, when the amendment referred to was adopted, the legal voters of a corporation of the kind last mentioned could exercise no legislative functions and the local and special laws operative in the district embraced in its territory were enacted by the legislative assembly. As some of these organized districts were in existence when the amendment was adopted, we believe a fair construction of the words “local” and “special,” as used by the framers of this clause of the organic law, limit their application to such municipal corporations as are described in the case of Cook v. Port of Portland, 20 Or. 580 (13 L. R. A. 533: 27 Pac. 263). 5. Section 2 of Article XI of the fundamental law of the state originally contained the following clause: “Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes.” This provision was amended June 4, 1906, so as to read as follows: “Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon.” It will thus be seen that this change in the organic law deprives the legislative assembly of all authority to enact, amend or repeal any charter of a city or town, the legal voters of which [525] reserve to themselves the exercise of all such power, except the right of repeal. 6. The amendment last referred to having been adopted at the same time as the section first hereinbefore quoted, the parts of their provisions that relate to the same subject-matter ought to be construed together, and, so considering them, we believe it was the intention of the framers of Section la of Article IY of the constitution, and also of the people who ratified it, to vest an incorporated city or town with authority to provide the manner of exercising the initiative and referendum powers as to amendments of a charter, which change is reasonably within the generic term of “municipal legislation.” It is true that cities were originally incorporated by special laws, but, as other municipal corporations were created in the same manner, and were in existence when the organic law was amended, we do not think the terms “local” and “special,” as used in Section la of Article IY of the constitution to qualify the word “legislation,? limit the authority of a city or town to prescribing the manner of exercising the initiative and referendum powers as to the enactment or repeal of ordinances only; for, if such restriction had been intended, it would not have been difficult so to have framed the amendment. The legislative assembly of this state on February 25, 1907, passed an act prescribing the manner of invoking the initiative and referendum powers by the legal voters of an incorporated city or town, Section 10 of which makes the statute effective only when the municipality has not made and does not make any conflicting provisions: Gen. Laws 1907. p. 398. It would thus appear that a majority of the members of the legislative assembly evidently thought an incorporated city or town could provide for the manner of exercising the powers reserved to the legal voters of a municipality; and, though such determination is not binding upon a court, it is at least a persuasive argument and tends to confirm the conclusion we have reached. Believing that the Common Council of Astoria were empowered to provide by ordinance for the manner of amending the city charter, it follows that the decree should be affirmed, and it is so ordered. Affirmed.