Kalich v. Knapp

Mr. Justice McNary delivered the opinion of the court. As the result of colliding with an automobile driven by defendant, plaintiff brings this action to recover $35,000 damages for a personal injury. The accident occurred shortly after midnight .on November 19, 1911, at the intersection of Williams Avenue and Russell Street, in Portland. During the trial of the case, plaintiff offered in evidence certified copies of certain ordinances purposed to regulate the speed of motor vehicles within the limits of the municipality, but upon' the objection of counsel for defendant, the court refused to allow the ordinances to be introduced into the case, upon the ground that the ordinances had been superseded by an-act of the legislative assembly of the State of Oregon, known as the “Oregon Motor Vehicle Law,” General Laws of 1911, pages 265-278. The result of the trial was a verdict in favor of defendant, whereupon plaintiff prosecutes this appeal. — 561 — The ordinances, being three in number, were adopted by the city during the years 1904 and 1906, and, considered as one specie of legislation, forbid any person to drive or operate an automobile at any point on the streets of the city at a greater speed than 15 miles per hour, or at a speed of more than 10 miles per hour within the fire limits, or at a speed greater than a walk upon any street where street-cars turn. This local municipal legislation was enacted agreeably to the powers vested in the city by a charter granted by the state legislature in 1903: Laws 1903, pp, 3-172. The portion of the charter appropriate to the subject under consideration follows: “Sec. 72. The council shall have and exercise exclusively all legislative powers and authority of the City of Portland, and no legislative powers or authority, either expressed or implied, shall be exercised by any other person or persons, board or boards, other than the council. The council shall have full power and authority, except as herein otherwise provided, to exercise all powers conferred upon the city by this charter and the Constitution and laws of the State of Oregon. ’ ’ “Sec. 73. The council has power and authority, subject to the provisions, limitations and restrictions in this charter contained— “(1) To exercise within the limits of the City of Portland all the powers, commonly known as the police powers, to the same extent as the State of Oregon has or could exercise said power within said limits; * * “ (60) Except as otherwise provided in this charter, or in the Constitution or laws of the State of Oregon, to regulate and control, for any and every purpose, the use of the streets, highways, alleys, sidewalks, public thoroughfares, public places, and parks of the city; to regulate the use of streets, roads, highways, and public places for foot passengers, animals, bicycles, automobiles and vehicles of all descriptions; # * — 562 — “(63) To control and limit traffic on the streets, avenues and elsewhere.” So far as is necessary to an understanding of the matter here involved, the Oregon motor vehicle law, provides: “An act providing for regulating the use, registration, license, identification, conduct and operation of vehicles operated upon the public roads, streets and highways of the State of Oregon; to regulate and license the persons who drive the same; to prescribe penalties for violations hereof and to prohibit the unauthorized possession or use of a vehicle and to provide penalty therefor; to license and identify all motor vehicles; to limit the authority of cities and towns on like subjects concerned with said vehicles, and to repeal all acts and parts of acts either in conformity or in conflict herewith. * * ” Sec. 2,'subdivision 17: “The rate of speed on all streets, roads and highways of this state shall be a reasonable speed, up to and not exceeding twenty-five miles an hour, but any speed in excess of twenty-five miles an hour upon any road or highway of this state shall be an unreasonable speed and is prohibited by this act; provided, however, that no motor vehicle shall be driven at a rate faster than eight miles an hour upon the country roads or highways of this state when within one hundred yards of any vehicle drawn by horse or horses.” Sec. 25: “Local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation (1) requiring of any owner or operator of a vehicle any license fee or permit to use the public highways, or excluding or prohibiting any vehicle whose owner has complied with this act from the free use of streets, roads or highways of this state, except such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or except as herein provided; (2) affecting the registration or numbering of vehicles or — 563 — prescribing a slower rate of speed than herein specified at which snch vehicle may be operated, or the nse of the streets, roads and highways of this state, contrary or inconsistent with the provisions of this act; and all such ordinances, rules of regulations now in force are hereby declared to be of no validity or effect; provided, however, that the local authorities may limit by ordinance, rule or regulation hereafter adopted, the speed of vehicles on the streets within their respective corporate limits, on condition that such ordinance, rule or regulation shall also fix the same speed limitation for all vehicles, not to be in any case less than one mile in six minutes and on further condition that local authorities shall also have placed conspicuously on each main street, road and highway of this state where the boundary of such local authority crosses the same and on every main street where the rate of speed changes, signs of sufficient size to be easily readable by persons using the same, bearing the words ‘Slow down to -miles’ (the rate being inserted) and with an arrow pointing in the direction where the speed is to be reduced or changed; and provided further, that said ordinance, rule or regulation shall fix the penalties for violation thereof similar to and no greater than those prescribed by this act for violation of speed limitation by any vehicles; and provided further, that nothing in this act contained shall be construed as limiting the power of local authorities to make, enforce and maintain further ordinances, rules or regulations affecting vehicles which are used to carry the public for hire.” Admitted by all, is the proposition, that but a single problem is here involved, namely, since the amendment of Article XI, Section 2, of the state Constitution, effective December 3, 1910, can the legislature enact a statute, general in its application, calculated to repeal certain ordinances of the City of Portland theretofore enacted pursuant to the powers granted to the city in its charter? A consideration of this question impels a brief review of the organic and — 564 — statutory laws applicable thereto. Article XI, Section 2, of the Constitution reads: “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. ’ ’ 1. The legislative assembly of 1893, Section 3206 et seq., L. O. L., passed a general law providing for the organization of cities and towns, establishing the procedure therefor, and investing enumerated civil and criminal powers in such municipalities. An amendment of this act was had at the session of the legislature for 1913, page 541, This course of general legislative enactment is impotent in its bearing so far as it affects the subject under consideration, for the City of Portland was, at the time of this particular legislation, clothed in a charter granted by the law-making body, and therefore cannot arrogate unto itself any supplementary power by virtue of the legislation in question. In Riggs v. City of Grants Pass, 66 Or. 266 (134 Pac. 776), this court, speaking‘through Mr. Justice Eakin with reference to the general law pertaining to the formation of cities, said: “It does not operate as an amendment of city charters ; but charters may be amended to take advantage of powers granted.” 2. To appreciate understandingly the real inspiration productive of Article XI, Section 2, of the Constitution, as well as its expected corrective force, is but to recall the ills accompanying legislative creation of — 565 — and interference with municipal charters which naturally provoked a deep-seated resentment among the chartered communities. Tinkering with municipal charters became a most enjoyable pastime of the legislators and a favorite ground for the employment of their activities. To eradicate the abuses too often arising from legislative interference with matters wholly municipal in character, the people of the state by initiative action ingrafted this provision upon the organic law of the state. In the light of this condition, the Constitution must be considered and interpreted. Therefore, we believe the people of the state meant literally what they said when they used the expression that: “The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town.” This language admits of no other interpretation than that the people purposed to curtail the power of the legislature in all matters of legislation pertaining to the creation of a municipal charter, its amendment or nullification. To yield to the thought that the constitutional enactment must be construed to inhibit the legislature from committing a direct assault upon the charter of a particular city, yet, permitting that very object to be obtained by making the law apply generally to all municipalities in the state, is to close the eyes to a full reading of the provision, and to license the legislature to do that by indirection which it is expressly forbidden to do directly. The argument that the constitutional provision means that the legislature may, by general enactment, regulate the internal affairs of the cities and towns of the state, but are prohibited from passing a similar law having refer — 566 — ence to a particular municipality, is giving life to the character of the act rather than to the substance of the Constitution, and is equivalent to saying that the legislature may do with the Constitution as it pleases so long as it selects a general conveyance rather than a particular vehicle. In adding this constitutional mandate, there was no design to emancipate any city from general legislation by the legislative assembly affecting the body of the people of the state in those matters wholly involving state-wide policies and activities, or to prevent appropriate action by the lawmakers upon any of the topics regarding which the Constitution sanctions legislation, but only in respect to those phases of purely municipal government properly regulated by charters and embracing matters of internal municipal regulation. The wisdom of the body politic in conceiving and adopting this addition to the fundamental law of the state is grounded on the proposition that each municipality is best suited to govern its own affairs. What might be the proper height of a building in one city, the distance the dwellings should be located from the street line in some populous district as a protection from the ravages of fire, and the speed automobiles should travel on the congested thoroughfares of a metropolis, are considerations properly of a municipal concern, differing as widely as the cities differ from the hamlets and wholly beyond the domain of legislative understanding. Eeturning to the constitutional provision, this language will be observed: “Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws.” — 567 — The formation of incorporations by general laws alone is permitted. The next sentence contains this inhibition: “The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town.” The formation of corporations by general laws, that is, providing through general legislation, the implements by which a community may initiate its existence and form and mold its shape is permitted, but from the legislature the people of the state have withdrawn its former prerogative to enact, amend or repeal any municipal charter by such a specie of legislation. Had the electors of the state desired municipal legislation by general laws, the first sentence of the Constitution would have read: “Corporations may be formed and the charters of municipal corporations enacted, amended or repealed under general laws. ’ ’ By the force of Article XI, Section 2, of the Constitution, the electors of municipalities are, subject to the Constitution and criminal laws and such general laws as may be enacted by the legislature affecting the relation of the state to the locality, made the legislative assembly to enact the laws germane to the general purpose and object of the municipality, free from legislative molestation, which autonomy in a sense constitutes a sovereign city, subject at all times, however, to the supreme will of the state, reserved by the people of the state through the initiative and referendum provision of the fundamental law. Counsel for respondent finds much comfort in the case of Straw v. Harris, 54 Or. 424 (103 Pac. 777), and offers the conclusion of that opinion as decisive of the — 568 — case under consideration. The legislature in its biennial session in 1909 passed an act designed to provide a method for the incorporation, under general laws, of ports in communities bordering upon bays or rivers navigable from the sea. Several cities of Southwestern Oregon found this act a suitable conveyance for their amalgamation as a port. Litigation resulted, and in consequence thereof, this court, in a well-considered opinion written by Mr. Justice King, said, among other things: “The act under consideration by permitting the incorporation of ports does not thereby directly attempt to amend the charter of any city or town within the boundaries thereof. Under any view, it may only affect the charters and ordinances of such cities and towns to the extent that they may be in conflict or inconsistent with the general object and purpose for which the port may be organized. This the Constitution clearly intended to permit; that is to say, a general law thereunder is provided whereby the people within the municipality created-under it may take such steps in support thereof as may be necessary, even though its success may require, on the part of the included municipalities, a surrender of some of the rights or privileges previously granted to or acquired by them. Incorporated cities and towns may change or amend their charters at any time in the manner provided by the Constitution. The power to do so, however, is derived from the people of the state, and is necessarily limited to the exercise of such powers, rights and privileges as may not be inconsistent with the maintenance and perpetuity of the state, of which public corporations are but the mere instrumentalities of government. In other words, the powers thus acquired do not rise higher than their source.” The act of the law-making body receiving the thoughtful consideration of the court was one sanctioned by the constitutional provision in its first sen — 569 — tence, which reads, “Corporations may be formed under general laws.” This enactment had solely for its purpose a plan of procedure for the formation of ports, and therefore did not purport to amend or annul the charter1 of any city, and, further, such legislation was general in its application, and outside of the province of charter regulation. It is true that the court in that decision said, in substance, “that the state cannot surrender its sovereignty to the municipalities.” This the state has not done by circumscribing the power of the legislature over municipal charters, as the sovereignty in this state resides in the people. They have retained unto themselves, under the initiative and referendum provision of the Constitution, power to create, amend, or annul a municipal charter, though denying that privilege to their representatives through which they commonly speak. While there may be certain statements contained in Straw v. Harris indicative of a different conclusion than here announced they fall in the category of gratuitous observations unnecessary of consideration in a decision of the points involved. Nor do we flunk the decisions of this court subsequent, yet following in the wake of Straw v. Harris, conflict with the doctrine of this case. Prom these principles we conclude the lower court erred in refusing to admit the ordinances in evidence, and that the Oregon motor vehicle law (Laws 1911, pp. 265-278) is unconstitutional so far as it attempts to regulate the speed of automobiles in the City of Portland. Reversed. Rehearing Granted. Mr. Justice Moore and Mr. Justice Ramsey concur. Mr. Chief Justice McBride dissents.