Cooke v. Portland

Mr. Justice Burnett

delivered the opinion of the court.

The proceedings in question are said to have been carried on under the act of the legislative assembly approved January 23,1903, entitled “An act to incorporate the City of Portland, Multnomah County,- State of Oregon, and to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith.”

Section 12 of that statute defines the domain of the City of Portland by metes and bounds, with reference to legal subdivisions of the public surveys. Article IY of the act establishes a procedure for the annexation of territory. The initial step of that process is a petition filed in the office of the city auditor, signed by 15 per cent of the qualified voters of the outlying territory, describing it, defining its boundaries, and praying for the addition of the same to the city. After consideration, the council by a two-thirds vote may pass a resolution 30 days before the next general election providing for the submission of the question to the qualified voters residing in the territory to be annexed. When the proposed addition includes a part, but not the whole, of any voting precinct, the County Clerk of Multnomah County is required to “furnish a sufficient number of ballots to supply the voters of such precinct who reside within the territory so to be annexed, upon which shall be printed the question of the annexation of such territory, and shall supply for the voters of such precinct who do not reside within said territory ballots upon which such question shall not appear.” The city auditor must furnish to the judges of the election a plat and description of the territory to be annexed showing the portion thereof included within the limits of each election precinct. The judges of the election are to ascertain the residence of each voter applying for a ballot and furnish only to electors residing within the proposed annexation the ballot containing that question.

In part, Section 3 6 of the act says:

“In case a majority of the qualified voters residing in such territory and voting on said question vote in favor of such annexation such territory shall on the first day of July next following said election be and become a part of the City of Portland.”

Section 17 reads thus:

“The council shall thereupon by resolution so alter and amend Section 12 of this charter and the boundaries of said city as therein described, and set out as to include such annexed territory within the boundaries of said city, and said Section 12 as so amended shall be a part of this charter and be in full force and effect.”

In 1906, Article XI, Section 2, of the state Constitution was amended to read thus:

“Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city, or town. The’ legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon.”

This section was further amended by the plebiscite of November 8, 1910, but not in any manner affecting the question here involved.

1. That a change in the boundaries of the city involves an amendment to its charter is taught in the very language of the act itself. The council is empowered by Section 17, supra, to amend Section 12 of the charter. This is a legislative construction of the act involved. It is manifest that a description of the boundaries of a city is an essential element of its fundamental law.' It is impossible to conceive of a city charter which would not contain provisions of that kind limiting its territorial jurisdiction. We hold, theref ore, that an enlargement of the territory of a city is in its true nature an amendment of its charter.

2. Before the amendment of Article XI, Section 2, the legislative assembly had the authority to amend particular charters. It could not, however, delegate to anyone this legislative power. The amendment referred to inaugurated a new system whereby the authority of the legislative assembly was taken away and a new régime substituted. With the ademption of the power of the legislature over charters by special legislation fell the procedure having for its source the authority of the legislative assembly: McKeon v. City of Portland, 61 Or. 385, 390 (122 Pac. 291).

3. Ten years prior to the enactment of the charter of 1903, the legislative assembly by general law, found in Chapter 1, Title 26, L. O. L., established a procedure for the incorporation of cities and towns for the amalgamation of independent municipalities and for the addition of new territory to such corporations. Section 3209, L.- O. L., part of that act, prescribes how the boundaries of a city may be enlarged. In general terms it requires that notice shall be given of the election by publication in a newspaper of general circulation, both in the corporation and in the proposed addition for four weeks prior to the election, and also by posting notices thereof in four public places both in the city and in the new territory. Conceding the authority of the charter act of 1903, on this point, it did not operate to repeal the general municipal corporation statute in the part relating to notices of election. Repeals by implication are not favored; and, construing both acts to stand even on the hypothesis that the charter was not affected by the constitutional provision mentioned, it is plain that notice must be given in the manner provided by the general statutes as a jurisdictional prerequisite to the holding- of an election on the question involved. Looking at Section 15 of the city charter, we find that the council may “pass a resolution providing for the submission of the question of the annexation of such territory.” For a definition of the term “submission” we must advert to the general law on that question. It was proposed by the procedure involved to impose additional burdens of government upon the inhabitants of the new territory. Just powers for such a government depend upon the consent of the governed, to he ascertained in the manner provided hy law. The procedure already described, and which was adopted on the occasion mentioned, does not square with the general law upon that subject in that no notice was given of the proposed election. The opportunity to be heard, which in its very nature involves previous notice, is essentially jurisdictional in its character where it is proposed to take the property of an individual or to visit upon it additional burdens. Without this, the action of the city council was analogous to taking the property involved without due process of law.

4. It was contended at the argument by the counsel for the defendants, in effect that the action of the city council prescribed in Section 17 of the charter was purely ministerial, and in substance a mere declaration of the result of the election. In our judgment, however, Sections 15, 16, and 17 of the charter must be read together, with the result that the vote of the rural electors and the action of the council, if otherwise valid, are both integral and necessary ingredients of the process of annexing new territory. The inevitable consequence of defendants ’ argument would be to hold that the vote of people residing wholly without the territorial limits of the city could amend the charter of the municipality, for all the electoral action taken was that of the rural voters. At any time in the history of our state government this would have been a delegation of legislative authority to the voters mentioned. Since the amendment of Article XI, Section 2, it would be a usurpation of the prerogative of the legal voters of the municipality, and in either event would be a nullity. In pursuance of its general legislative authority, the law-making body of 1893 had prescribed a procedure for the constitution of new municipalities for the amalgamation of existing cities and towns, and for the assimilation of new territory involving in all cases the separate independent action of both parties to the new civic aggregation. Viewed in connection with the new Article XI, Section 2, of the Constitution, the rights of those within and those without the city are both thus subserved. Neither can be forced upon the other. As said by Mr. Justice McBride in Thurber v. McMinnville, 63 Or. 410, 416 (128 Pac. 43, 45):

“The legislature, by Section 3209, L. O. L., * # provided a plain, easy method by which an incorporated city could acquire new territory. By virtue of this act, which has not been repealed, and which does not conflict with the sections of the Constitution thereafter adopted, it was provided that the question of acquiring such territory might, by the action of the city council of the municipality, be submitted to the voters within and without the municipality, voting separately; and, if a majority of each locality voted in favor of annexation, the change in boundary should be made. ’ ’

In brief, as against the plaintiff and others in like situation, the election was void because no notice of the same was given. On the part of the city it was void because the legal voters thereof had no opportunity to express their wishes on the subject. As to both parties it was void because, worked out to its final analysis, it amounted to an amendment of the charter of the City of Portland by those living entirely without-its boundaries. The other questions suggested thus become unimportant.

The decree of the Circuit Court is reversed, and one entered here in accordance with the prayer of the complaint. Reversed: Decree Rendered.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.