Kalich v. Knapp

*570Former opinion sustained December 21, 1914.

On Behearing.

(145 Pae. 22.)

In Banc. Mr. Justice McNary delivered the opinion of the court.

In the original opinion of this case, reported in 142 Pac. 594, the majority of the court composing department No. 1 decided that Article XI, Section 2 of the Constitution withheld the legislature from amending or repealing the charter of any city, or the ordinances enacted pursuant thereto in respect to those matters peculiar to municipal regulation, though reserving that power to the sovereignty through the initiative and referendum provision of the fundamental law. At a rehearing of the case, counsel for defendant presented argument for a reversal, which is clearly embodied in the scholarly dissenting opinions of Mr. Chief Justice McBride and Mr. Justice Burnett, to which our attention will now be briefly given. Owing to the importance of the questions suggested and their grave bearing upon future legislation, we think it not amiss succinctly to state our position anew. Looking backward over the path of our state legislation, we observe that the organic law primarily contained the following clause:

“Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes. All laws passed pursuant to this section may be altered, amended, or repealed, but not so as to impair or destroy any vested corporate rights”: Article XI, Section 2, of the Constitution.

3. With pleasing fidelity to this provision of the Constitution, the recurring legislative assemblies *571created municipal corporations, and lavishly bestowed their time upon the amendment of particular charters until a remedy was sought and obtained by the people in the adoption of the constitutional provision under consideration.

“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”: Article XI, Section 2, as amended.

A comparison of the two provisions of the fundamental law will at once reveal the intention of the voters and the evil they purposed to correct. The original section of the Constitution permitted the legislature to create municipal life by special law, and to clothe it with a charter which could be altered or repealed at any legislative session, when either the municipal welfare or political exigencies required.

Over the municipality the legislature had exclusive and unrestrained control, and, having the power to create, so it had the power to modify or destroy. In fact, the ultimate sovereign power of the state over its cities and towns was unquestioned. To remedy the many ills flowing from the absolute dependency of cities upon the autocratic will of the legislature and its oft-repeated interference in matters of local concern, the people conceived the idea of city sovereignty as a separate attribute of state sovereignty; consequently • we have, by the adoption of the constitutional provision under consideration, vested our cities with more political power than they heretofore possessed since the formation of our state government. The electors *572now are, subject to the Constitution and the criminal laws not affecting local regulation, made the legisla- ' tive assembly to enact and amend the local laws which should regulate their municipal affairs. In the former opinion, this court said:

“By the force of Article XI, Section 2, of the Constitution, the electors of municipalities are, subject to the Constitution and criminal laws and such general laws as may be enacted by the legislature affecting the relation of the state to the locality, made the legislative assembly to enact the laws germane to the general purpose and object of the municipality, free from legislative molestation, which autonomy in a sense constitutes a sovereign city, subject at all times, however, to the supreme will of the state, reserved by the people of the state through the initiative and referendum provision of the fundamental law.”

In the studiously considered case of Branch v. Albee, 71 Or. 188 (142 Pac. 598), a majority of this court reaffirmed the same construction, saying through Mr. Justice Ramsey.

“Said section, as amended, first withdraws from the legislative assembly all power that it previously had to enact, amend and repeal charters, and then confers upon the legal voters of every city and town power to enact and amend their charters, and this power, thus conferred upon cities and towns, is made subject to the Constitution and the criminal laws of the state. It is not made subject to the civil laws of the state. The conclusion seems to be irresistible that the people, by the adoption of said amendment, intended to withdraw from the legislative assembly all power that it previously possessed to enact, amend or repeal charters or acts incorporating cities or towns, and to confer upon the legal voters of cities and towns all of said power, except the power to repeal charters. If effect is given to the language of this amendment, no other conclusion appears to be tenable”: 71 Or. 188 (142 Pac. 600).

*573'Referring to the same provision of the Constitution in the case of Thurber v. McMinnville, 63 Or. 410 (128 Pac. 43), Mr. Chief Justice McBride said:

“We are of the opinion that the true intent of the amendment above quoted was to give to cities and towns the authority to enact and amend charters affecting property and other rights within the boundaries of such cities and towns, and that, so far as legislation outside of these boundaries is concerned, they must find it elsewhere than in this amendment. Inside their boundaries, and in relation to matters purely local, they are, as regards regulation by the state legislature, supreme; beyond these boundaries they are invested with no power except that which the legislature may see fit to grant them in common with all other cities, and under like circumstances.”

At this juncture, we deem it prudent carefully to consider the case of City of Portland v. Nottingham, 58 Or. 1“ (113 Pac. 28), on account of its similitude to the one in hand. The point we desire to develop is that this ease is an authority for the doctrine enunciated in the original opinion in Kalich v. Knapp, ante, p. 558 (142 Pac. 594), namely, that the legislature is inhibited by the Constitution from amending the charter of the municipality either by special or general legislation in those matters of local and municipal concern. In January, 1903, the charter of the City of Portland provided, • among other things, that a property owner who was displeased at the assessment levied upon his property for a street improvement could appeal to the Circuit Court, but that the verdict of the jury should be a conclusive determination of the questions giving birth to his grievance. A dispute having arisen between the city and Mr. Nottingham regarding the reassessment of the property of the latter, the remedy provided by the charter provision *574was invoked, resulting in a verdict for the city, which was set aside by the court and a new trial granted. The city prosecuted an appeal to this court upon the assumption that the legislature did, at its biennial session in 1907 (Laws 1907, c. 162, p. 311), adopt an act whereby an appeal was allowable. Considering the vital question whether the legislature could, by general enactment, amend a charter provision, this court, in a forceful opinion written by Mr. Justice Burnett, said:

“This provision of the Constitution (Article XI, Section 2), was adopted by the people at the June election of 1906, and went into effect upon the proclamation of the Governor, June 25th of that year. Its effect is to take from the legislative assembly the right to amend the charter of the City of Portland, although enacted by the legislative assembly itself in January, 1903.”

Further, Article IV, Section 1 (a), of the Constitution, provides that:

“ ‘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.’ These constitutional provisions confer ample and exclusive power upon the people of every municipal corporation to regulate their own affairs respecting municipal legislation and procedure. The legislative assembly cannot pass laws to repeal or amend municipal charters, even by implication, respecting such matters.”

After extracting from the Motor Act the criminal element therein contained, we cannot discern any appreciable difference in the principle propounded in these two cases, viz., that the Constitution as it is now built withholds the legislature from amending any *575municipal charter by legislation, be it direct or indirect, general or special, which is properly and purely the subject of municipal concern and regulation.

As additional evidence of their political intention to preserve the ancient right of local self-government of municipalities, the people of the state in June, 1906, ingrafted on the Constitution (Article IV, Section 1(a), which 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.”

This provision of the Constitution like Article XI, Section 2, was designed to insnre to each incorporated community a full measure of home rule and to place beyond the capacity of the legislature the power to make any .change in the system of government of any municipality by legislation other than that authority reserved to the legislature in Article XI, Section 2. Since the adoption of these constitutional provisions this court has given thought to their intendments and limitations, and has, we think, generally, arrived at the conclusions reached in this case: Farrell v. Port of Portland, 52 Or. 582 (98 Pac. 145); Haines v. City of Forest Grove, 54 Or. 443 (103 Pac. 775); City of McMinnville v. Howenstien, 56 Or. 451 (109 Pac. 81); City of Portland v. Nottingham, 58 Or. 1 (113 Pac. 28); State v. Schluer, 59 Or. 18 (115 Pac. 1057); State v. Hearn, 59 Or. 227 (115 Pac. 1066, 117 Pac. 412); McKeon v. City of Portland, 61 Or. 385 (122 Pac. 291); State v. Port of Tillamook, 62 Or. 332 (124 Pac. 637, Ann. Cas. 1914C, 483) ; Thurber v. McMinnville, 63 Or. 410 (128 Pac. 43); Riggs v. Grants Pass, *57666 Or. 266 (134 Pac. 776); Kalich v. Knapp, ante, p. 558 (142 Pac. 594); Branch v. Albee, 71 Or. 188 (142 Pac. 598). True, in such cases as Straw v. Harris, 54 Or. 424 (103 Pac. 777), Kiernan v. Portland, 57 Or. 454 (111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339), and Churchill v. Grants Pass, 70 Or. 283 (141 Pac. 164), the court seems to have announced the rule that the amendments adverted to are competent to restrain the legislature in the enactment of special but not general laws affecting the municipalities.

With vigor the argument is pressed upon us that on account of the Motor Act (Laws 1911, p. 275), containing a clause providing a penalty for its violation, that the act is a criminal law, and therefore without the competency of municipal legislation, citing Baxter v. State, 49 Or. 353 (88 Pac. 677, 89 Pac. 369), and State v. Schluer, 59 Or. 18 (115 Pac. 1057). In these cases the question arose as to whether a city could amend its charter under Article XI, Section 2, of the Organic Act so as to be legal proof against the operation of the local option law: Laws 1905, p. 47. After a careful review of the provision of the Constitution, this court held that the local option law was general 'in its scope and criminal in its character, and therefore within the power of legislative expression. Without doubt these cases were correctly decided, for the subject matter of the local option law involves either the sale or prohibition of intoxicating liquors, and for that reason was the proper subject for legislative action. Treated as either a moral or an economic question, the state has, in the interest of better citizenship, abundant authority to regulate the sale of alcoholic liquors and to provide a punishment for disobedience to the law, whether we consider the prohibitory legislation from the standpoint of a criminal law or an enactment in*577volving the state in its sovereign capacity. Problems of this kind lie too deep for municipal solution and far beyond the limits of purely municipal concern.

The concept that the Motor Act is a criminal law finds its mainspring in the last sentence of Article XI, Section 2, of the Constitution:

“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.”

Recurring to Section 23 of the Motor Act, it will be observed that a punishment is provided for the infractors of the law which it is argued brings the act within the power of the legislature to adopt. Considered by itself, the constitutional provision last quoted might supply the legislature with sufficient excuse for this legislation, even though it had the legal effect of amending or superseding a city charter or ordinance. But this section cannot be construed alone, as at the same election an amendment to Article IV was adopted, but inserted after Section 1, designated as Section 1(a), supra. Particularly do we desire to accentuate this sentence:

“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 and for their respective municipalities and districts.”

These two amendments, referring as they do to the same subject matter, must be considered together, and be so interpreted as to carry out the intent of the framers and the people who have adopted them. In reading the excerpt from Article IV, Section 1(a), it will be noticed that the powers created by Article XI, *578Section 2, were enlarged and made applicable “to all local, special and municipal legislation of every character.”

In considering the two sections of the Constitution for the purpose of welding an harmonious construction, we think it was the clear intention of the electors of the state to restrain the legislature from legislating in criminal matters affecting those subjects that are purely local and municipal in character. But in those public matters which concern the people of the state at large, in common with the inhabitants of the chartered communities, the legislature has undoubted power to define those acts which shall constitute a crime and provide a penalty for their infraction. This must be so, else we shall have dissipated the greatest power for the preservation of order, and without which the government of the state would be incomplete, and utterly fail to attain one of its great ends, the protection and security of person and property in organized cities, as well as throughout its entire territory. Certainly the necessity of enlarging municipal powers in both civil and criminal matters, wholly local is thoroughly appreciated, even by the casual observer of the conditions in thé crowded modern centers of population, yet, even so, the constitutional amendments only grant unto the cities the exclusive right to exercise such powers, civil or criminal, as legitimately belong to their local and internal affairs, and beyond this the legislative assembly and the people of the state, speaking through the initiative, occupy a field of action exclusively their own.

The City of Portland received its charter from the hands of the legislature at the session of 1903: Sp. Laws of 1903, pp. 3-172. By that franchise it was ordained that the common council should have full *579power and authority to exercise all powers conferred by the charter and the Constitution and laws of the state. To the council was given, coextensive with the state, the right to exercise within the limits of the city, all the powers commonly known as the police power, and to regulate and control the use of its streets and the traffic thereon, except as otherwise provided in the Constitution and laws of the State of Oregon: Sections 72 and 73. By these provisions of the charter, the legislature vested the city with the same authority over its streets as the state itself possessed. As an expression of this potentiality, the ordinances were enacted in 1904 and 1906; hence at the time of their enactment the City of Portland had, within its corporate limits, concurrent power with the state to pass laws relative to the regulation and control of traffic over the streets of the city. The constitutional provisions forming the meat of this discussion were adopted by the people of the state in 1906, and had for their effect the removal of legislative authority over the subject of municipal traffic; consequently, at the time of the passage of the Motor Act through the legislature in 1911, that department of government was impotent to nullify or amend the charter or ordinances of the City of Portland in a matter of acknowledged local concern such as the regulation of traffic over the streets of the metropolis.

Prom what has been said it must follow “as night the day” that the Motor Act, if valid expressly amends every charter of every municipality in the state by divesting such cities of the power to pass or enforce ordinances in conflict with the statute. To assert that the adoption of the act is not an amendment but a suppression by paramount authority is but a hollow statement that must fall for the want of a distinguish*580ing prop. The desideratum is to discover the intended effect of the legislation rather than the particular choice of words that may be used to express that effect. If the statute nullifies the charter or ordinances of the incorporated communities, it supersedes them either by suppression by paramount authority or by amendment. The resultant effect is the same. And from what has been said this cannot be done. In the title of the Motor Act we are confronted with this declaration: “To limit the authority of cities and towns on like subjects concerned with * * vehicles.” In Section 25 of the act, we find an express statement that local authorities shall have no power to prescribe a lower rate of speed than in the enactment provided. Without doubt, the legislative act embraces the same subject matter as the ordinances and is in direct conflict therewith, and if the statute is constitutional, then it expressly repeals the ordinances. In aid of our deductions that this language works an amendment of the charter, we adduce State v. Wright, 14 Or. 365 (12 Pac. 708); Warren v. Crosby, 24 Or. 558 (34 Pac. 661).

4. Associated with the other questions is this one: Does the supreme law of the state prohibit the people from diminishing the power of the legislature in the exercise of any of its original prerogatives of legislation? The primary draft of the Constitution, ratified by the electors of the territory in 1857 and approved later by the Congress of the United States, specified that:

“The legislative authority of the state shall be vested in the legislative assembly, which shall consist of a Senate and House of Representatives”: Article IV, Section 1, Constitution.

Thus did the people of the state so hew and shape the body of their fundamental law as to constitute *581the legislature the only instrument through which the people could express their choice on legislative matters. As a result of political expansion, the people amended this section of the Constitution by imposing an indirect limitation on the legislature compelling that institution to share its powers of legislation with that of the people publicly expressed through the initiative. For we read that:

“The legislative authority of the state shall be vested in a legislative assembly, consisting of a Senate and House of Eepresentatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly”: Article IV, Section 1, as amended in June, 1902.

Here, it will be seen that the people did not shorten the powers of the legislature in matters of legislation only, they did declare that the legislature was no longer to be their exclusive agency of expression. Experimentation of this character having proved popular, the electorate set about further to curtail the legislature as an organ of legislative expression. This they succeeded in accomplishing in the adoption of Article XI, Section 1, and Article IV, Section 1(a), of the Constitution, when they forbade the legislature from voicing their sentiments in matters of purely municipal concern.

We are liable to confuse the discussion of the subject if we fail to discern between sovereignty itself and that force which stands as the representative of sovereign power. The source — the abiding place of sovereignty —is in the people. Government is merely an agency by which it is exercised. The legislative body is but a *582component of that agency — a contrivance'by which the people crystallize their ideas into the form of legislation. Therefore, in the enactment of organic legislation having for its function the abridgment of legislative power, the people of the state are not parting with any of their sovereignty, rather they are exercising their right to express this sovereign power directly. In time the people may strip the legislature of every power it once enjoyed, leaving it but a place in memory, and themselves exercise directly within the state all of the powers formerly committed to the legislature. No further need we seek to disclose the authority of this statement than to quote Article I, Section 1, of the Constitution:

“We declare that all men, when they form a social compact, are equal in right; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. ’ ’

Surely, then, in checking the legislature from further interference in municipal affairs does not constitute the surrender of any sovereignty. Nor does the city on that account become a miniature state, for at all times and under all forms of government sovereignty remains in the people of the state who, speaking through the initiative, may legislate on all matters unless restrained by the federal or the state Constitutions.

5. Finally, we cannot yield to the plaint that the conclusions reached are not justifiable, because judicial minds may differ with respect to the station where municipal power ends and state authority begins. The difficulty of locating the boundary between legisla*583tion that is purely municipal, and therefore within the administrative competency of cities and legislation that lies without its fold and consequently within the embrace of legislative enactment is more apparent than actual. Though it must be admitted that the differentiation is not and never can be totally free from perplexity, however, this unfortunate situation is the handmaid of many legal rules that either entwine or shade into each other without regard to the layman’s dislike for complexity in legal jurisprudence. Discussing municipal affairs as distinguished from state functions, ’ Mr. McQuillin, in his excellent treatise on Municipal Corporations, Volume 1, Section 173, says:

“All of those public matters which concern the people of the state at large in common with the people of the particular locality, as the administration of justice, and the authority of the state generally,-through and by legislative enactments administered by state officers or by virtue of the power of the central government, in the preservation of the public peace and affairs of like general character, although some of which may be in the hands of the local or municipal authorities, are matters of state or central jurisdiction. On the other hand, all of those public affairs which concern the inhabitants of the locality as an organized community, apart from the people of the state at large, as supplying purely local needs, conveniences, and comforts like water, light, and gas, the establishment of sewers, fire protection, and the enforcement of by-laws or ordinances touching the interests of the local corporation alone are essential matters of local concern.”

From the general principles of law herein discussed, we conclude that the judgment of the trial court is erroneous and therefore must be reversed.

Beversed. Former Opinion Sustained on Behearing.

*584Mr. Justice Moore, Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice Ramsey concur.