Thielke v. Albee

Mr. Justice McBride delivered the opinion of the court. 1. From the allegations of the complaint it appears that the original ordinance passed by the council was repealed, and that the same ordinance, after being repealed, and therefore dead for any purpose, was submitted to the people by the council as an initiative measure. For the purposes of the demurrer said allegations must be taken as true. Conceding that the council had a right to repeal the ■ ordinance after it had been referred, and that it had the right to pass an [452] other ordinance identical in terms with the one repealed and to submit it to a vote at the election next ensuing, we are of the opinion that it went beyond its powers in submitting to a vote of the electorate an ordinance not passed by it. Article IV of the Constitution, as amended in 1902, provides that the people reserve unto themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independently of the legislative assembly, and prescribes the procedure by which these powers may be exercised, but nowhere does it grant to the legislature any power to initiate laws, except constitutional amendments, and submit such laws to the vote of the people, without itself first enacting them in the form of laws. Constitutional amendment of Section la of Article IV, adopted in 1906, extends this, right to municipalities in the following lang’uage: “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 municipalities 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. Not more than 10 per cent of the legal .voters may be required to order the referendum nor more than 15 per cent to propose any measure, by the initiative, in any city or town. ’ ’ Article XI, Section 2, of the Constitution, as amended in 1906, provides: “The legal voters of every city and town are hereby granted power to enact and amend their municipal [453] Charter, subject to the Constitution and criminal laws of the State of Oregon.” In none of these provisions is there conferred power upon the legislature to initiate a law, or upon the city council to initiate an ordinance; and we are cited to no provision of the state statute or charter of Portland which confers this right. The ordinance, with one or two exceptions which could well be eliminated, without holding the whole void, seems to be fair and reasonable, and the need of such regulation is, no doubt, imperative; but upon the showing made in the complaint there was no authority in the council to submit it as an initiative measure. “ The order of the Circuit Court is therefore reversed and the cause remanded, with directions to the Circuit Court to permit an answer to be filed within such time as it may deem reasonable. Reversed.