Barber v. Johnson

Mr. Justice McCamant delivered the opinion of the court. In 1903 the legislature 'passed an act providing the manner in which the inhabitants of a county might change their county seat. This act, incorporated in the Code as Sections 2877-2885, provides that a petition signed by qualified electors, equal in number to three fifths of the votes cast at the last general election, shall be necessary to initiate the proceeding. Plaintiff contends that this statute provides the only method by which a county seat may be changed without an act of the legislature or of the people under the initiative, providing for the change. It is admitted that the act of 1903 was not complied with' and plaintiff’s chief insistence is that the proceeding's taken were for this reason nugatory. 1. It is true, as contended by plaintiff, that an election held without authority of law is ineffectual for any purpose: Andrews v. Neil, 61 Or. 471, 478 (120 Pac. 383, 123 Pac. 32); Equi v. Olcott, 66 Or. 213, 215, 216 (133 Pac. 775). The'defendant contends that the election in question was authorized by the amendments to the Constitution providing for the initiative and refer- * endum and the legislation enacted for carrying these constitutional provisions into effect. The first of these amendments was adopted by the people in 1902. It provided that on petition of not to exceed eight per cent of the legal voters of the state, — 393 — any proposed law or amendment to the Constitution should he put on the ballot to be voted on by the people at the next general election; also that a majority vote of those voting on the measure should be sufficient for its adoption. In 1906 the Constitution was further amended by the addition of Section la to Article IV. This section is in part as follows: “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.” In 1907 the legislature passed an act providing a procedure for the enforcement of this constitutional provision. This act is found in the Code as Sections 3470-3485. ' The constitutional provision has frequently been before this court for construction. It is held in Schubel v. Olcott, 60 Or. 503 (120 Pac. 375), that the amendment to the Constitution adopted in 1906, as applied to districts other than cities and towns, is not self-executing, but that Sections 3470-3485 of the Code provide an appropriate procedure for putting it into effect. It is squarely held by this decision that a county is a municipality or district within the purview of this constitutional amendment. Further light has been thrown on the question by two of the recent decisions of this court: State ex rel. v. Port of Astoria, 79 Or. 1 (154 Pac. 399), and Rose v. Port of Portland, 82 Or. 541, 557, 558 (162 Pac. 498), These two opinions — 394 — contain so thorough an analysis of the constitutional provision in question that it would be superfluous to restate the reasoning or even the conclusions reached. It will suffice for present purposes to quote briefly from these opinions. In the first of these cases, at pages 22, 23, of the report, Mr. Justice Harris' says: “By the terms of Article IV, Section la, every municipality, whether it be a city or town, or whether it be a port, has the right to employ the initiative and referendum powers ‘as to all local, special, and municipal legislation,’ and this means that such municipality may apply the initiative and referendum powers when enacting municipal legislation to carry out and make effective an authority previously granted. * * It seems clear then that municipal legislation, within the meaning of Section la of Article IV, when applied to municipalities, other than cities and towns, refers to legislation which is permitted and made necessary for carrying into effect a lawful power previously granted. * * A port has no right to legislate unless that right is first created by law; but, when the right to legislate is conferred, then Section la of Article IV immediately operates, and the initiative and referendum are at once made available, and the exercise of such power to legislate is municipal legislation.” In Rose v. Port of Portland, 82 Or. 541, 557, 558 (162 Pac. 498), it is said: “No subdivision of government like a port or district can exercise power unless that power is first granted by some lawmakers authorized to legislate that power to the municipality or district.” A county, like a port, is a municipal corporation other than a city or town: Cook v. Port of Portland, 20 Or. 580, 584 (27 Pac. 263, 13 L. R. A. 533). The language quoted from the above opinions is as applicable to a county as to a port. It is settled law, therefore, that the amendment of 1906 is applicable to counties; — 395 — that the amendment is not self-executing; that the powers granted to the people of the respective counties under the initiative are not unlimited; that he who would uphold the action of the people of a county under the initiative must point to some grant of power to act on the subject in question; that when the power is shown to exist Sections 3470-3485, L. O. L., provide a procedure adequate for its exercise. 2. It remains to apply these principles to the facts of this case. Jefferson County was created under the authority of a general enabling act, adopted by the legislature in 1913 and found in the session laws of that year at pages 21-29. The necessary action to create the county was taken by the people interested at the general election in 1914. Immediately after that election the County Court named Culver as the temporary county seat. The authority so to do is found in Section 6 of the act of 1913. That section is as follows: “The County Court of such new county shall have power to temporarily fix the county seat, and such location shall remain the county seat until the first general election thereafter, when the qualified voters of such new county are empowered to vote for and select the place of county seat in the manner provided by law. Immediately after the selection of such county seat either by the County Court or by the canvass of the returns of votes cast at the election for that purpose, the County Court shall issue its proclamation and publish the same in a newspaper published in such new county, if there be one, and if not by posting a copy of such proclamation in each election precinct in such county announcing the selection and location of such county seat.” It will be noted that by this statute the legislature gave the people of the new county the express power to — 396 — determine where their county seat should be and that this power was to be exercised at the first general election following the organization of the county. The legislature must have referred to the general election held November 7,1916, at which time the question was actually determined by the people. We have no difficulty in holding that the people of Jefferson County were empowered to determine this matter at the time when they passed on it. The stipulation of the parties admits that the requirements of Sections 3470-3485, L. O. L., were complied with. 3. Plaintiff contends that the fixing of this county seat was not “legislation” within the purview of Section la of Article IY of the Constitution, and cites Fouts v. Hood River, 46 Or. 492 (81 Pac. 370, 7 Ann. Cas. 1160, 1 L. R. A. (N. S.) 483). This case merely holds that the local option law adopted by the people in 1904 is not obnoxious to constitutional objection on the ground that the expediency of prohibiting the sale of liquor in each county or precinct is referred to the electors of such county or precinct for determination. The language of the constitutional provision in question is: “The initiative and referendum powers * * 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 and for their respective municipalities and districts. ’ ’ The words “of every character” must mean something and were inserted for a purpose. They forbid a narrow technical construction of the word “legislation.” “Legislation” is defined by March’s Thesaurus as the “enactment of laws.” Bouvier, Words and Phrases, 18 Am. & Eng. Enc. Law (2 ed.), 822, and 25 Cyc. 181, unite in the definition, “The act of giving or — 397 — enacting laws.” A county seat is ordinarily fixed by act of the legislature. The lawful act of the people of a county changing their county seat is local legislation within the purview of Section la of Article IY of our Constitution. 4. The final contention of plaintiff is that these proceedings are void for the reason that the notice of election failed to notify the electors that this question would be submitted to them for their determination. Our attention is directed to a number of authorities holding elections void for want of notice to the electors, but they were all eases wherein the statute required the notice which was omitted. Sections 3470-3485, L. O. L., make no provision for posting or publishing a notice of the initiative measures to be voted on at a general election. Section 3478 provides that the Secretary of State shall incorporate in a pamphlet the text of all such measures with arguments for and against their adoption, if such arguments are tendered, and it is provided that this pamphlet shall be mailed to every voter. The legislature evidently regards this notice as sufficient. If we were to read into the statute a requirement for further notice which the legislature has not put there, we would legislate judicially. We think the county seat of Jefferson County has been lawfully changed and the decree is affirmed. Affirmed. Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.