It is conceded by all parties concerned that no election can be held in this state without authority of law. This principle was recently announced by this court in State ex rel. v. Kozer, decided October 6, 1925.
It is conceded that the City of Eugene has made no provision either in its charter or by ordinance for calling special elections to submit to the voters of that city legislative matters under the initiative or referendum. It necessarily follows that the city is governed by the general law of the state on that subject. *Page 285
Indeed its charter expressly so provides. Section 2 of the amendment to the city charter adopted at the general city election held April 6, 1924, and found in page 97 of the typewritten copy of the charter filed in Supreme Court Library, August 16, 1917, prescribes:
"Elections upon initiative measures shall be governed by the general laws and constitution of the state. * * 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 state until the common council shall regulate the same by ordinance."
The general law on that matter is found in Sections 4105-4109, and in so far as material in this appeal is as follows:
"4106. * * 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, * * 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."
"4109. * * Amendments to any city charter may be proposed and submitted to the people by the city council, with or without an initiative petition, but the same shall be filed with the city clerk for submission not less than sixty days before the election at which they are to be voted upon, and no amendment *Page 286 of city charter shall be effective until it is approved by a majority of the votes cast thereon by the people of the city or town to which it applies. The city council may by ordinance order special elections to vote on municipal measures."
It is conceded that the ordinance involved did not have the affirmative vote of three fourths — or of two thirds as required by the charter — of all members of the council. The emergency section of the ordinance is therefore ineffective. That does not invalidate the ordinance: Barton v. Recorder's Court of Vale,60 Or. 273 (19 P. 349). For that reason no further attention will be given to the emergency section.
The last sentence in Section 4109, Or. L., authorizes the city council to order special elections to vote on municipal measures. Special elections must be called by ordinance. There is then a general law authorizing special elections on municipal measures proposed by the initiative. The crucial point in this controversy is whether or not the special election held in the City of Eugene, July 2, 1924, within less than thirty days, was called pursuant to that general law. The solution of that problem must be found in determining the construction of the word "ordinance" as used in the last sentence of said Section 4109. If the act of ordering an election is legislative, then it may be conceded for the purpose of this opinion that the election is invalid because held in less than thirty days after the ordinance was passed, that is, before the ordinance was in effect. In such event it may be deemed there was no authority for holding the election on that date.
Whether or not the ordinance calling the special election was legislative must be determined from what *Page 287 the council did, not by the form of the action taken, nor by the name given the performance by the legislature. "Often executive powers are vested in the council or legislative body and exercised by * * ordinance. * * The form or name does not change the essential nature of the real step taken. The mode ofeffecting the action is not important."
The ordinance assailed was designed to accomplish three things, namely: First. A special election to be conducted on July 2, 1924. Second. Provide poll-books, ballots and other supplies for conducting the election. Third. Name the polling places and officers necessary to conduct the election.
The calling of a special election is an executive act: 9 R.C.L. 1000, 1001, §§ 20, 21. Our Constitution, Article II, Section 18, providing for special elections on recall commits the duty of calling the election to the "officer with whom a petition for nomination to such office should be filed, and the same officer shall order the special election when it is required." This officer is the Secretary of State, county or city clerk. None of these officers has any legislative authority. The act of ordering a special election on a certain date, when such an election is authorized by law, is, therefore, a ministerial act. The ordinance is not the source of authority for holding the special election except as to the date; it merely ordered a special election by authority of the general law: Or. L., § 4109.
Providing the supplies for conducting the election is a ministerial act enjoined upon the city clerk by general law: Section 4105, Or. L. In county elections this duty is performed by the county clerk, and in the state by the Secretary of State. That provision in the ordinance assailed was entirely unnecessary *Page 288 and added no force to said ordinance. It added nothing to the duties of city recorder, because that duty is fully provided for in the general law under which the election was ordered: Or. L., § 4105.
The same is true of the polling places. This duty is placed upon the sheriff in general elections under the direction of the County Court, which is not a legislative body. Indeed, the steps taken by the council in passing the ordinance assailed is very similar to the duties customarily and generally performed by our County Courts by an order.
But it is strenuously contended that since the law requires a special election to be called by ordinance, and that no ordinance goes into effect until thirty days after its passage, that the ordinance assailed did not take effect until after the election was held. The authorities do not support this contention: 7 McQuillin on Mun. Corp. 6621, § 351c; Long v. City ofPortland, 53 Or. 92, 100 (98 P. 324, 98 P. 1111); State v.Port of Astoria, 79 Or. 23 (154 P. 399), and other authorities cited in the very able opinion of Mr. Justice BEAN in the instant case.
It will be noted that the provision postponing the operation of an ordinance for thirty days after its passage is found in the section providing for the referendum. This indicates the intention of the legislature to be in harmony with the authorities to the effect that the referendum applies to legislative matters only: 7 McQuillin, Mun. Corp. 6621, § 351c;Long v. City of Portland, 53 Or. 92, 100 (98 P. 324, 98 P. 1111). The only legislative enactment disclosed in the record was conducted by the people at the polls. All the council did was to submit to the people a proposed amendment to the charter, and the opportunity *Page 289 for the voters to express their will. The acts of the council and the special election was done under authority of the general law.
The charter of the City of Eugene provides:
"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 its Mayor, except emergencies, etc."
Article IV, Section 1a of the state Constitution, reads:
"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, andmunicipal legislation of every character, in or for their respective municipalities and districts."
The charter of the City of Eugene is in harmony with our state Constitution. So even if the word "ordinance" as used in Section 4106 of Or. L. is broad enough to include every ordinance regardless of its content and intent as subject to the referendum, it must yield to the Constitution and charter, for it is provided in Section 4105, Or. L.:
"The provisions of this act shall apply in every city and town in all matters concerning the operation of the initiative and referendum in its municipal legislation, on which such city ortown has not made or does not make conflicting provision."
This provision clearly implies that municipalities may make local laws in conflict with the general law regulating the initiative and referendum in the cities of this state.
The learned Circuit Court considered the case of National Bankof Commerce v. Town of Granada, 41 Fed. 87, 44 Fed. 262, 48 Fed. 278, 54 Fed. 100 *Page 290 (4 C.C.A. 212), as authority for his decision. In page 104 of 54 Fed., CALDWELL, Circuit Judge for the Circuit Court of Appeal, says:
"It is admitted that the ordinance in question was not `recorded in a book kept for that purpose,' and was not `authenticated by the signature of the presiding officer of the * * board of trustees and the clerk,' and `was never published in any paper,' or in any form or manner whatever."
The statute of Colorado applicable prescribed:
"All ordinances shall, as soon as may be after their passage, be recorded in a book kept for that purpose, and be authenticated by the signature of the presiding officer of the council or board of trustees and the clerk; and all by-laws of a general or permanent nature, * * shall be published in some newspaper published within the limits of the corporation, or, if there be none such, then in some newspaper of general circulation in the municipal corporation; * * and such by-laws and ordinances shall not take effect and be in force until the expiration of five days after they have been so published * *."
The referendum was not involved in the Granada case. The learned judge who wrote the opinion does not directly hold the ordinance there involved to be legislation — what he held is succinctly stated in 54 Fed. 104, thus:
"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 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 and floating indebtedness of the town. If such an ordinance is not of a `general *Page 291 or permanent nature,' it would be extremely difficult to suggest one that is.
"The provision of the act that such ordinances shall not take effect or be in force until they are published in the mode provided by the act is mandatory. This ordinance, never having been published, never went into effect."
The ordinance assailed in the instant case may be conceded to be of a general and permanent nature, but that does not make it legislative. An order calling a recall election would have the same nature. A recall election is called by a ministerial officer having no legislative authority. A record of the order calling an election must be recorded so as to preserve the evidence of the call. This must be done whether the order be made by a body having legislative powers or by a ministerial officer. In the Granada case this record was required to be made in a certain way, and doubtless applied to both legislative and ministerial ordinances. Every ordinance passed by the council of the City of Eugene takes effect immediately upon its passage unless subject to the referendum, and, therefore, the ordinance here involved went into effect immediately after its passage. It must not be overlooked that the ordinance in the Granada case covered other matters then calling a special election. In that case the steps necessary to pass an ordinance were the issues. Here it is conceded that the ordinance was legally passed, and the only question is, was the ordinance subject to be referred under our Constitution and the city charter? The questions involved in the two cases differ widely.
The intention of the legislature in authorizing a special election to be called by ordinance may have been due to the importance of the matter. It was so prescribed in order to secure the attention demanded *Page 292 by the importance of the step. The legislature could have enjoined that duty upon the city recorder or clerk as has been done in the recall and the general law.
As has been clearly pointed out by Mr. Justice BEAN, to hold that an ordinance calling a special election under plaintiff's theory would itself be subject to the referendum. This result could reduce the referendum to an absurdity. Courts should not construe a law so as to make its provisions absurd: 36 Cyc., 1108, 1109, § c, notes 47, 52 and 53; 36 Cyc. 1111, § e; 2 Lewis' Sutherland on Statutory Construction (2 ed.), 913, § 489.
The conclusion herein reached is strictly in harmony withState ex rel. v. Kozer, above. In that case there was no law for holding the proposed election excepting the act vetoed by the Governor. The election called by the council of the City of Eugene and involved in this litigation is authorized by the general law of the state: Or. L., §§ 4105-4109.
The general law regarding elections under the initiative and referendum makes every provision for holding elections in cities which have not ordained ordinances for that purpose. Eugene is in that class. There was a law in effect in Eugene at the time the special election was ordered, so that the election was held by authority of law. The ordinance assailed herein was administering that law. It was an executive, not a legislative, order.
It is true that the word "ordinance" generally imports legislation. It is equally true that the word "order" does not, but indicates an executive or judicial act. It was thus expressed in Bennett Trust Co. v. Sengstacken, 58 Or. 333, 348, 349 (113 P. 863): *Page 293
"Like the act in question here, the local option law requires a petition signed by a certain percentage of the legal voters, and upon the petition being presented in proepr form the county court issues an order for the holding of an election. * * Under the law providing for the incorporation of ports, the county court makes the order for the election."
The act has the same nature whether done by the County Court or the city council. In the last case above cited the election ordered by the County Court was valid because held by authority of law. For the same reason the election assailed in this proceeding must be held valid.
On May 1, 1924, a resolution proposing an amendment of the municipal charter of that city and providing that a special election should be held on July 2, 1924, for the submission of the proposed amendment to the legal voters of the city for their adoption or rejection was adopted by the common council of the City of Eugene. Attached to and made a part of said resolution was the proposed amendment itself, and this proposed amendment was filed on May 1, 1924, with the city clerk for submission to the legal voters of that city at said election for their approval or rejection. The proposed amendment was, therefore, filed with the city clerk more than sixty days before the day on which said election was to be held, and hence, if the method provided for submitting said proposed amendment failed to conform to the requirements of the statute, it was because the method by which it was adopted by the council was by resolution and not by ordinance. Subsequently, and on June 11, 1924, the council passed an ordinance which also directed that a special election should be held on said second day of July, 1924, for the purpose of voting on *Page 294 said proposed amendment. The election was held on said date and the proposed amendment was adopted by a majority of the legal votes cast at said election.
Plaintiff contends that said special election was invalid because the amendment was not proposed and submitted to the people by the council by ordinance more than thirty days before the date on which said election was held. This contention is based upon a provision contained in Section 4106, Or. L., which, in part, reads as follows:
"No city ordinance, resolution or franchise shall take effect and become operative until after its passage by the council and approval by the mayor," etc., and because the charter of the city also contains a provision that
"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," etc.,
while the defendants contend that the ordering of a special election for the submission of a proposed amendment of the charter is not municipal legislation and therefore is not within the prohibition of the statute or the charter.
In some respects the amendment of a charter is similar to the amendment of the Constitution. As to the latter:
"In submitting propositions for the amendment of the constitution, the legislature is not in the exercise of its legislative power, or of any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people, and which might with equal propriety have been conferred upon either house, or upon the governor, or upon a special commission, or any other body or tribunal. The extent of this power is limited *Page 295 to the object for which it is given, and is measured by the terms in which it has been conferred, and it cannot be extended by the legislature to any other object, or enlarged beyond these terms. * *" 6 R.C.L., p. 29.
"In proposing a constitutional amendment, the legislature does not exercise its legislative power, but performs a special function delegated to it by the constitutional provision by which the proposal of amendments is sanctioned. * *" 25 R.C.L., p. 839.
There is this distinction, however, between the holding of a special election to vote upon the amendment of a charter and a special election called by the legislature. The holding of a special election to vote upon state measures can only be called by an act of the legislature. There is no provision of the Constitution or law which authorized any state official to call a special state election, except in the exercise of the recall, and hence the power resides exclusively in the legislature. This power, excepting the recall, can constitutionally be exercised only by an act passed by the legislature. This act, of course, may be vetoed by the Governor like any other act which the legislature passes: State v. Kozer, recently decided. But there is no such constitutional limitation governing the amendments of a city charter, and hence there is no analogy between the two, except that in submitting a proposed amendment to the charter the council of the city is performing a special function delegated to it by the Constitution and statutes of the state or by the Constitution and charters of the city, as the case may be, and hence, while the submission is not municipal legislation, it is made by statute a municipal measure and is governed by the statute unless the manner and method of submission is provided for by the charter. *Page 296
Looking to the charter of the City of Eugene, Section 25 thereof provides:
"The Common Council shall have authority to provide the manner of conducting elections and canvassing the votes cast thereat and to fill vacancies in office except as hereinbefore provided and to prescribe the qualifications of voters at municipal elections."
Section 30 thereof provides:
"The Recorder shall give ten (10) days' notice by publication in some newspaper in the City of Eugene of each general or special election, if a general election the notice shall contain the officers to be elected thereat, and the measures or other questions, if any, to be submitted; if a special election, the measures, if any, and any other question to be voted upon at such election, and the notice shall also contain the place or places designated for holding a general election or special election."
Section 2, Charter, page 97, above, is authority for the council to regulate city elections. Under the holding of Curtis v. Tillamook City, above, the regulation by ordinance supersedes the statutory regulations, since, under the Constitution, the regulation by the council would supersede and take the place of the statute so far as the manner and method of holding such elections are concerned. Section 15 of the Charter prescribes:
"Upon the passage of any ordinance the enrolled copy thereof, attested by the Recorder, shall be submitted to the Mayor by the Recorder, and if the Mayor approves the same he shall write thereon `Approved,' with the date of such approval, and sign the same officially, and thereupon, unless otherwise provided therein, such ordinance shall become a law and be in force andeffect." *Page 297
But whether or not the submission of this amendment of the charter of the city was municipal legislation, it is clear that it was not subject to the referendum powers of the city. It called for an election to vote upon a municipal measure which could only go into effect upon a majority of the votes cast supporting such measure, and as such, it was not subject to a referendum. Hence, without considering the effect of the ordinance passed on June 11, 1924, further than that it did regulate the time and manner of holding the special election, it is only necessary to say that this is not a direct proceeding brought for the purpose of enjoining the holding of the election itself, but is a special proceeding attacking the validity of an election which has been held, at which the proposed amendment was adopted. The statute, therefore, is not mandatory but directory, since the result of the election was not in any way affected by the election being called by resolution and not by ordinance.
The law upon this subject is well settled and the reason for the rule is plain: Bennett Trust Co. v. Sengstacken, 58 Or. 333,349-352 (113 P. 863).
"In the construction of statutes, this word (mandatory) is applied to such as require to be obeyed, under penalty of having proceedings under them declared void. Directory statutes must be obeyed, but, if not, do not invalidate the act." 2 Bouvier's L. Dict., p. 305.
"As to mandatory and directory statutes, it is said that when the provision of a statute is the essence of the thing required to be done, it is mandatory; otherwise, when it relates to form and manner; and where an act is incident, or if jurisdiction acquired, it is directory merely." 2 Bouvier's L. Dict., p. 1032.
Section 223, 20 C.J., page 181, provides: *Page 298
"Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result. If the statute simply provides that certain acts or things shall be done in a particular time or in a particular manner without declaring that their performance is essential to the validity of the election, they will be regarded as mandatory if they affect the actual merits of the election, and directory if they do not. Where the terms of the statute are absolute, explicit, and peremptory, no discretion is given; and when penalties are imposed against the violation of its respective terms they have the same effect as negative words and render its observance imperative. But this rule must be considered in connection with another rule that a statute prescribing the duties of election officers may be held either mandatory or directory according to the time and manner in which it is questioned. Before election it is mandatory if direct proceedings for its enforcement are brought, but after election it should be held directory, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission will render it void."
The language of the statute is, "the city council may by ordinance order special elections to vote on municipal measures." The language of the statute is not "may by ordinance only" order special elections to vote on municipal measures, and for that reason there is nothing in the statute showing that if the election has been held, the statute should be construed as mandatory. It cannot be construed as mandatory without overthrowing the majority rule of *Page 299 the voters of Eugene expressed at an election of which they had due notice and at which they participated and settled the question of whether the amendment should be adopted or rejected. Nor is there anything in principle in the assertion that there is a distinction between an ordinance and a resolution so far as the validity of this election is concerned.
"A resolution of a council is but another name for an ordinance and if it is a legislative act it is immaterial whether it is called a resolution or an ordinance so long as the requirements essential to the validity of an ordinance be observed." 2 Bouvier's L. Dict, p. 556.
"Where the powers conferred on a town are to be exercised by ordinances to be passed by the town council, an order or resolution adopted by the council and entered on its records is held in point of form a valid exercise of the power." Town ofTipton v. Norman, 72 Mo. 380, 383-386; Words and Phrases, (1 ed.), p. 5026.
It is clear that the ordering of a special election by the council and the fixing of the date on which the same was to be held was not prescribing a rule of civil conduct, but was merely one of the steps necessary for carrying into effect the initiative powers of the people of Eugene to amend their charter. There is no reason why the powers of the council in that respect could not be exercised as well by resolution as by ordinance. Hence the election having been held, the result having been determined, unless the statute was mandatory, the election is not void, since the result would not have been different if the resolution which was adopted on May 1st had been in the form of an ordinance and not in the form of a resolution. The election was not invalidated, although a part of *Page 300 the proceedings were irregular and did not strictly conform to the requirements of the statute.
"Statutes are not mandatory where they merely give directions as to method in the formal steps preparatory to an election at which there is the right and opportunity to accept or reject what such formalities present for action." 20 C.J., p. 95.
"The time for holding an election must be fixed in advance either by law or by the officers empowered by law to appoint the time." 20 C.J., p. 101.
There being nothing in the statute to indicate an intention that the election should be invalid if it was called and held pursuant to a resolution, and the statute not being mandatory, the result of the election is not subject to an indirect attack, and for these reasons I concur with the majority decision written by Mr. Justice BEAN.
Mr. Justice RAND concurs with this opinion.