This is a suit to enjoin the issuance and sale of municipal bonds aggregating the sum of $500,000 which the defendant city proposes to negotiate for the purpose of constructing and maintaining a municipal public auditorium on or adjacent to the campus of the University of Oregon and within the corporate limits of the City of Eugene. The case hinges on the validity of a special election called for the purpose of submitting to a vote of the people a proposed charter amendment authorizing such bond issue. A resolution declaring the intention of the common council to propose such charter amendment was passed on May 1, 1924, and the date of the special election to be called was designated July 2, 1924. However, the ordinance, calling the election on the above date, was not passed and approved *Page 301 by the mayor until June 11, 1924. Pursuant to the same a special election was held and the people by majority vote approved the proposed charter amendment. It is the contention of respondent that the election was invalid and all proceedings subsequent thereto null and void, for the reason that the ordinance calling it did not become effective until thirty days after its passage and approval by the mayor: It will be observed that the election was held twenty-one days after the date of the ordinance. It is conceded that the emergency clause to the ordinance was of no force or effect in that a two-thirds affirmative vote of the members of the council was not obtained. Appellants contend the ordinance did not pertain to municipal legislation, and therefore became effective on the date of its passage and approval, viz., June 11, 1924. We are confronted, then, with the question as to whether an ordinance calling a special election for the purpose of submitting such proposed charter amendment is a legislative or an administrative act, and the answer thereto is decisive of the case.
The complaint alleges, and it is admitted in the answer, that:
"Neither the city of Eugene, Oregon, nor its common council ever has enacted any ordinances regulating the time or manner of holding elections upon either initiative or referendum measures or regulating the time and manner of holding special elections; and that neither the said city nor its common council ever has enacted any ordinance regulating the time or manner of holding elections upon proposals submitted to the electors of said city by the said common council except as within this complaint specified; that the election hereinafter specified as having been attempted to be held on July 2, 1924, was a special election, and that the city has no ordinance governing *Page 302 the holding of special elections upon proposals submitted by the common council except the ordinance described within paragraph 10 hereof."
Section 2, page 97, of the Charter of Eugene provides, in part, as follows:
"Elections upon initiative and referendum measures, except as is herein otherwise provided, shall be governed by the constitution and laws of the State of Oregon; provided, however, that the time and manner of holding said elections shall be governed by such general laws and constitution of said stateuntil the Common Council shall regulate the same by ordinance."
Reference to Section 4109, Or. L., discloses that "the city council may by ordinance order special elections to vote on municipal measures."
In view of the pleadings and the above charter and statutory provisions we need not be concerned with the resolution as authorizing such election, but must look to the ordinance. It is fundamental that a special election cannot be called without authority of law. "A resolution is not a law," as stated in C. N.P.R.R. Co. v. City of Chicago, 174 Ill. 439 (51 N.E. 596), "but merely the form in which the legislative body expresses an opinion." A resolution, or order as it is sometimes called, is an informal enactment of a temporary nature, providing for the disposition of a particular piece of the administrative business of a municipal corporation: 19 R.C.L. 895. The distinction between resolutions and ordinances is well considered in Long v. City of Portland, 53 Or. 92 (98 P. 324, 1111), wherein the court said:
"The action of a municipal council may relate to questions or subjects of a permanent or general character, or to those which are temporary and restrictive *Page 303 in their operation and effect; and ordinarily an ordinance relates to the former, while the latter may be adopted by resolution. The former must be enacted with all the formality required by the charter, while the latter may be adopted with less formality, and its legal effect determined less strictly, unless the charter otherwise provides. 2 Abbott's Municipal Corp., §§ 514-516; 1 Beach, Public Corp., §§ 483, 484, 486; 21 Am. Eng. Ency. Law (2 ed.), 948; 28 Cyc. 347; City of Alma v.Guaranty Sav. Bank, 60 Fed. 203 (8 C.C.A. 564); City ofLincoln v. Sun Vapor Street Light Co., 59 Fed. 756 (8 C.C.A. 253); City of Central v. Sears, 2 Colo. 589.
"Whatever may be the requirement as to the form of enactment, the former is municipal legislation, while the latter is not. InShaub v. Lancaster City, 156 Pa. 362, 366 (26 A. 1067,1068, 21 L.R.A. 691), it is said: `But there is a well-marked distinction between acts that are legislative and that lay down a rule of action for the citizens of the city, and acts that relate to the daily administration of municipal affairs. The latter may well be described as "business" to be transacted by councils, and may be properly left to them to dispose of by "order or resolution."'"
At any event, the council invoked the power of ordinance to call the election, and it is unnecessary to say what might have been done by resolution.
Section 1a, Article IV, of the Constitution, in part, provides:
"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 *Page 304 for the manner of exercising the initiative and referendum powers, as to their municipal legislation."
The charter of the City of Eugene, Section 1, page 62, reads:
"No city ordinance enacting municipal legislation shall take effect and become operative until thirty days after its passage by the common council and approval by the mayor. * *"
Section 4106, Or. L., provides:
"No city ordinance, resolution, or franchise shall take effect and become operative until thirty days after its passage by the council and approval by the mayor, unless the same shall be passed over his veto, and in that case it shall not take effect and become operative until thirty days after such final passage, except measures necessary for the immediate preservation of the peace, health, or safety of the city; and no such emergency measure shall become immediately operative unless it shall state in a separate section the reasons why it is necessary that it should become immediately operative, and shall be approved by the affirmative vote of three-fourths of all the members elected to the city council, taken by ayes and noes, and also approved by the mayor."
This court in Long v. City of Portland, supra, construing the above section of the statute, held that such act applied only to ordinances, resolutions and franchises as are subject to the referendum, and, by virtue of Section 1a, Article IV, come within the term "municipal legislation."
It is to be borne in mind that "all local, special, and municipal legislation, of every character," is subject to referendum; hence the provision in the charter, no "ordinance enacting municipal legislation *Page 305 shall take effect and become operative until thirty days after its passage. * *" What was the intention of the common council of Eugene? Was the municipal legislative body undertaking to legislate or merely to perform an administrative act? What was the purpose of the emergency clause? If the ordinance did not pertain to a matter of "municipal legislation," there was no need of the emergency clause, as the referendum could not be invoked as to administrative matters. While it is true, as held on rehearing in Curtis v. Tillamook City, 88 Or. 453 (172 P. 122), that Section 1a, Article IV, of the Constitution authorizes municipalities to provide for the manner of exercising the initiative and referendum powers as to municipal legislation, and that such constitutional provision is written into and is a component part of every city charter, yet the City of Eugene did not see fit to provide for the exercise of such power in any way other than by ordinance. Where the law provides, as in this case, that a special election may be called by ordinance, it will not permit the calling of such by resolution: Thornton v. PortlandRy., L. P. Co., 63 Or. 478 (128 P. 850).
In the very recent case of State ex rel. v. Kozer — Mr. Justice BROWN speaking for the court — the question as to whether the Governor of the State of Oregon had authority to veto a bill of the legislature calling a special election was involved. That case, as this, hinged on the question of whether the calling of a special election was an administrative or a legislative act. It was held, in effect, that a bill calling a special election was a matter of legislation that must be submitted to the Governor for his rejection or approval, and his veto power was sustained. If the *Page 306 calling of a special election in the case cited is "legislation," why is it not so in the instant case? What is the distinction?
While the Constitution and charter vests the city with power to call a special election, the exercise of such power must be initiated by a legislative act. The time and place of general elections are fixed by law, but not so with special elections. The time and place of the latter depend upon statutory enactment: 20 C.J. 97. As stated in McQuillin on Municipal Corporations (Supplement), Section 694:
"A municipality cannot submit an ordinance to a vote of the electors without legal authorization." City of Alma v.Guaranty Sav. Bank, 60 Fed. 206 (8 C.C.A. 564).
Municipal laws are enacted, not by resolutions, but by ordinances: McDowell v. People, 204 Ill. 499 (68 N.E. 379);City of Mound v. Mason, 262 Ill. 392 (104 N.E. 685).
In National Bank of Commerce v. Town of Granada, 54 Fed. 100 (4 C.C.A. 212), was involved the validity of a special election called by ordinance to authorize the funding of the city's indebtedness. The court said:
"A measure requiring an expression of opinion from the voters of the town, at the ballot box, and involving such large values, and of so much interest to the taxpayers of the town and the holders of its securities, through so many years, ought not to be carried into effect except by the most solemn and deliberate mode of proceeding known to the law for giving expression to the corporate will. That mode is by ordinance. * * It is obvious to our minds that the ordinance in this case was of a `general or permanent nature,' and as such could `not take effect and be in *Page 307 force until the expiration of five days after its publication. It provided for an election, and therefore concerned every legal voter of the town. It affected every taxpayer, whether a voter or not. It affected the creditors of the town, present and future. It involved the making and execution of contracts, and various other matters relating to funding the floating indebtedness of the town. If such an ordinance is not of a `general or permanent nature,' it would be extremely difficult to suggest one that is."
McQuillin on Municipal Corporations (Supplement), Section 634, says:
"In construing particular charter and statutory provisions ordinances have been adjudged essential to accomplish the following legislative purposes: To levy a tax; to abate a nuisance; * * to call an election" — citing Reed v. Wing,168 Cal. 706 (144 P. 964), in which jurisdiction the initiative and referendum apply.
An ordinance authorizing an election to adopt or reject a street railway franchise was held to be law within the meaning of a statute which renders illegal voting a crime: In re Siegel,263 Mo. 375 (173 S.W. 1, Ann. Cas. 1917C, 684).
In Long v. City of Portland, supra, upon which appellants put much reliance, the court held that an ordinance exacting a license fee for the operation of vehicles was a legislative act and therefore subject to referendum. It would seem that an ordinance calling a special election to submit to the voters of a municipality a question of incurring such a large indebtedness is likewise a legislative act in that it is of general application and affects all within the jurisdiction of the city.
Our attention is called to the peculiar situation that would result if the referendum were invoked on an ordinance calling a special election. It must be *Page 308 conceded that under the operation of the referendum the will of the common council can thus be defeated as to the time of holding an election, and the question of amending the city charter would by operation of law be held in abeyance until the general election, unless enough affirmative votes were obtained to authorize an emergency clause to the ordinance. It would be unreasonable to vote at the general election in November on the question of calling a special election at a date prior thereto. It is true that a small percentage of people by invoking the referendum can thus defeat the will of the council, but it is not the mission of courts to cure defective legislation by construction.
In Curtis v. Tillamook City, 88 Or. 443 (171 P. 574, 172 P. 122), the council, on April 2, 1921, passed an ordinance calling a special election to be held on the twelfth day of the same month, but there was an emergency clause attached to the ordinance which made it effective from the date of its passage and approval by the mayor. The case last cited is therefore not controlling here.
Ehrhardt v. City of Seattle, 33 Wash. 664 (74 P. 827), holds that an election to amend the charter of the defendant municipality may be called by resolution, but this decision is based in part on the following charter provisions (Section 1, Article XX of the Charter of Seattle):
"Any amendment or amendments to this charter may be proposed in the city council, and if the same shall be agreed to by a majority of all the members elected, such proposed amendment or amendments shall be entered upon the journal with the yeas and nays of the members voting thereon. Upon the passage of any such amendment or amendments the same shall be submitted to the electors of the city. * *" *Page 309
The court said:
"No formality is provided for proposing such amendments. The provision is that the amendment shall be proposed in the city council. There are no specific directions for such proposal, and no requirement that the proposal shall be in the form of an ordinance, or that any formality shall be observed. Since a proposal of this kind is not legislative in the sense that it is a permanent law regulating the affairs of the city over which the council has control, we conclude it is, and was intended by section 1, art. 20, supra, to be, a ministerial or quasi legislative act, and, therefore, under the authorities cited, may be passed by resolution without the formalities required of an ordinance."
It is noteworthy that the court added:
"Of course, if any other mode is prescribed, it must be closely adhered to."
In other words, as this court has often said, the "mode of power is the measure of power."
It is granted that the act of ordering a clerk to advertise for bids in the construction of a certain bridge, as in Brazell etal. v. Zeigler, 26 Okla. 826 (110 P. 1052), is purely administrative and arises from the "business" incidental to the operation of municipal government. The same may be said byYarbrough, Mayor, v. Donaldson, 67 Okla. 318 (170 P. 1165), in which the common council of a city proposed by resolution to sell and dispose of its electric light plant. We see no analogy between those cases and the one at bar.
The calling of a special election for the purposes involved herein is municipal legislation and therefore subject to referendum. The ordinance in question did not become operative until thirty days after its passage *Page 310 and approval by the mayor. It follows that the election held pursuant to the same was null and void. The decree of the trial court enjoining the issuance and sale of the bonds described in the proposed charter amendment should be affirmed.
BURNETT and BROWN, JJ., concur.