Pearce v. Roseburg

Mr. Justice McBride delivered the opinion of the court. 1,2. Upon the case made by the pleadings the election at which the charter amendment was adopted appears to have been conducted substantially in conformity with the law. There is not in the charter of Boseburg as it appears in the Special Laws of 1905, page 3.3, any provision for holding special elections upon initiative — 205 — measures, but Section la, Article TV, of our Constitution provides: “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.” This constitutional provision we consider ample to authorize the city by ordinance to prescribe the manner in which the election shall be held, and this it has done by Section 8 of Ordinance 208, which requires the recorder, at least 30 days prior to the time when the election is to be held, to cause to be printed 50 notices announcing the filing of the petition with a statement of its tenor and effect, etc., and to cause one or more of such notices to be posted in each ward of the city for a period of 10 days before the election and a notice stating the time and place of the election, with a brief statement of the measure to be voted on, to be published in some newspaper of general circulation in the city for two weeks preceding the election. All this was done, and more, as it appears that the notices were printed in two city papers of general circulation instead of one, and it is safe to assume that every voter in the city knew just when and where and for what purpose the election would be held. Section 10 of said ordinance requires the council to appoint judges and clerks of election and to designate the polling places, but further provides that in case of a failure on its part to perform these duties, the clerk shall designate the polling places, and that the electors present at the time for opening the polls shall elect the judges and clerks. The council did not comply with either of these requirements, and, as before noted, — 206 — the clerk in the notice of election designated the polling places and inserted in the notice the following: “The council having failed to appoint judges and clerks for said election within the time provided by law, or at all, the qualified electors present at the polling places in each ward at the time for the opening the polls will elect, by vive voce vote, judges and clerks for said election.” Thus it appears that every provision of the ordinance requisite to constitute a valid election was complied with. Section 14 of the charter of Roseburg (Sp. Laws 1905, p. 36) provides, among other qualifications of a voter: “He shall be the owner of real or personal property in his own right and name, situated within the corporate limits of the City of Roseburg, and shall have paid a tax thereon, or shall be subject to pay a tax thereon, as shown by the last assessment-roll of the county of Douglas.” And it is stated in the complaint that the judges of election were instructed to permit none but taxpayers to vote. A similar provision in the charter of the City of Salem was held void in Livesley v. Litchfield, 47 Or. 248 (83 Pac. 142, 114 Am. St. Rep. 920), which was a case arising out of the refusal of the election officers to accept the vote of a nontaxpayer at an election held for the purpose of choosing city officers. Whether the same rule would obtain in an election held purely for the purpose of determining whether the city would adopt or reject a measure involving solely a question of taxation has not been determined by any decision involving that exact question, although in Oregon-Wisconsin Timber Co. v. Coos County, 71 Or. 462 (142 Pac. 575), it was held that Section 6391, L. O. L., — 207 — prescribing the qualifications of voters at district road meetings, and ■which limited the right to vote at such meetings to taxpayers, was not violative of Section 2, Article II, of the Constitution. But it is unnecessary to decide this question here, as there is nothing to indicate that any vote was refused by reason of the person offering to vote being a nontaxpayer, and it is a matter of common notoriety that the nontaxpaying vote usually preponderates in favor of any measure involving public expenditures. It is easy to be generous with other people’s money, but the man who has to foot the bill by an increase in his taxes is generally cautious about enlarging them. Neither is there anything unusual in the fact that out of an electorate of over 2,000 only 721 votes were cast at the election. At general elections in this state, where party spirit runs high, not more than 80 per cent of the actual number of electors attend the polls, while at special elections of this character the number is small compared with the actual registered vote. Thus in State ex rel. v. Portland, 65 Or. 273 (133 Pac. 62), it appeared that on the question of the adoption of the commission form of government, a matter of extraordinary moment to the citizens of Portland, only 46 per cent of the total vote was polled, and in Kiernan v. Portland, 57 Or. 454 (111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339), upon a measure involving an expenditure of $2,000,000, about 25 per cent only of the total vote was cast, while in the case of Thielke v. Albee, 76 Or. 449 (150 Pac. 854), recently decided here, wherein the regulation of “jitneys” had been thoroughly discussed by the press and public, only about 30 per cent of the vote was cast. In the case at bar there were 721 votes cast, 643 being in favor of the amendment and 78 against it. It is only reasonable — 208 — to conclude that if every voter had gone to the polls, the vote would have maintained about the same proportion. 4. In our opinion so much of Chapter 159, Laws of 1915, as attempts to restrict the power of cities and towns to levy taxes is antagonistic to Section 2, Article XI, of our present Constitution, which gives to cities and towns the power to enact and amend their charters, subject only to the Constitution and criminal laws of the state. The evident purpose of this amendment was to prevent legislative interference with purely local and municipal matters, and to extend to the voters of such municipalities full power to regulate these subjects as they might see fit. City taxation is entirely a local matter with which the people of the state at large have no concern. The writer, while still adhering to the dissenting opinions expressed in Kalich v. Knapp, 73 Or. 558 (145 Pac. 22); and Branch v. Albee, 71 Or. 188 (142 Pac. 598), considers it is settled in this state that as to matters purely municipal the state legislature cannot inter-meddle by either general or special legislation, although as to matters affecting the people generally the power of the legislature is still unlimited, • and the latter proposition cannot be maintained unless this court shall materially modify its holding in Kalich v. Knapp. 5. It is suggested that the designation of the terminus of the road is indefinite, but we find no such uncertainty as would render the description void. 6. Objections are also suggested as to the validity of the contract with the railroad company for the construction and leasing of the road, but these we deem to be sufficiently met and settled in Churchill v. Grants — 209 — Pass, 70 Or. 283 (141 Pac. 164), and will not be further considered. Many objections might be raised to the contract considered as a business proposition, but with this we have nothing to do. The writer ventures the prophecy that in the end the citizens of Roseburg will regret ever having gone into the business of railroad building, but that is their affair exclusively. 7. The attorney for several dissenting taxpayers has appeared amicus curiae and attempted to show by affidavit that this is a fictitious suit, in which there is no real controversy between the parties, but is begun and carried on with the intent to have this controversy decided against the plaintiff, insisting that the suit should be dismissed. Our right to do this is un-. doubted, but it is conceived that such a drastic course should not be pursued except where the fictitious character of the alleged controversy appears either from the pleadings or from satisfactory evidence. More especially is this true where the persons so appearing had an opportunity to have been heard in the court below and neglected, as in this case, to avail themselves of it. 8. The plaintiff is a taxpayer of the city, and is not shown to have any financial interest in the proposed contract or in the bond issue outside of the fact that he will be called upon to pay taxes to meet the principal and interest upon the bonds as they mature. Under these circumstances it was his right, and even his duty, to contest the proceedings and have it judicially determined whether or not he might be called upon to pay an illegal tax upon a project that months or years afterward might be thwarted by judicial proceedings. In his complaint, which is brought not only on his own account, but on behalf of all others simi — 210 — larly situated, he has pleaded everything necessary to have enabled the parties now appearing amici curiae to present the whole case. It was not necessary for him to have pleaded the city charter, because the court will take judicial notice of that; neither was it necessary for him to have pleaded the unconstitutionality of the law of 1915, because the court takes judicial notice of all acts of the legislature. While this is a friendly suit, that is, one pursued without rancor and with the understanding that no unnecessary delays will he permitted, the controversy is none the less real, and we are not disposed to assume that the parties who failed to take advantage of presenting their case in the court below are exercising any greater degree of good faith than plaintiff. The decree of the Circuit Court is affirmed. Affirmed, Mr. Justice Burnett dissenting.