Argued March 3, affirmed April 25, 1916.
On Rehearing.
(156 Pac. 1070.)
A demurrer to the complaint was sustained, and, the plaintiff having elected to stand upon its complaint, the court granted the defendant a judgment for its costs and disbursements. The city prosecuted an appeal from the judgment, and after holding that the complaint was sufficient (City of Portland v, Portland Cas & Colee Co., ante, p. 194 (150 Pac. 273), we granted a petition for a rehearing. Since the rendition of the first opinion we have not only heard a reargument of this cause, but we have also heard the oral arguments and examined the briefs in Portland v. Portland By., L. S P. Co., which involves every question presented here. Fourteen printed briefs, filed in the two cases, not only display an exhaustive research of the authorities, but they also record the last word which the industry and ingenuity of counsel can suggest in support of their respective contentions. Affirmed on Rehearing. For appellant there was a brief over the names of Mr. Henry A. Davie and Mr. Walter P. La Broche, City Attorney, with an oral argument by Mr. Davie. On rehearing there was a brief submitted for the respondent over the names of Mr. William W. Cotton, Mr. James G. Wilson, Mr. H. W. Strong and Mr. John A. Laing, with an oral argument by-Mr. Cotton. Mr. Justice Harrisdelivered the opinion of the court.
6,7. The opinion which was delivered to-day in Portland v. Portland Ry., L. & P. Co., 156 Pac. 1058, is de*207cisive of the instant case. The two ordinances were adopted by the same voters at the same election, and they are identical in terms, except that one applies to the sale of gas and the other to the sale of electricity. Applying the principles announced in Portland v. Portland Ry., L. & P. Co., the ordinance concerning the sale of gas is void. It cannot be sustained as a tax on property, because the city cannot levy a property tax for general purposes, except on the property and in the manner pointed out by general laws. The ordinance cannot be upheld as a license, or as a tax on business, because it is not an exercise of the power conferred by subdivision 21 of Section 73 of the charter. It is not necessary to indulge in any extended discussion of the instant case, for the reason that every issue raised here is examined at some length in the opinion relating to the tax on receipts derived from the sale of electricity; and since all that is said there concerning the power of the city to levy a property tax, as well as all that is stated about the right of the city to impose a tax or license on a business, applies here, the principles announced there will not be elaborated upon.
8. Supplementing, however, the discussion concerning the cotention of the city that Sections 3 and 74 endow the city with authority to pass the ordinance, attention is now called to Section 5 of Article XI of the State Constitution:
“Acts of legislative assembly incorporating towns and cities shall restrict their powers of taxation. * * ’ ’
The ordinance in question was submitted to the legal voters at a time when the legislative charter of 1903 was still in force. The charter of 1903 was enacted by the legislature prior to the adoption of the constitutional amendments known as Section 2 of Article XI *208and Section la of Article IV. "When it is remembered that the language of Section 5 of Article XI imperatively commanded the legislature not to confer upon municipalities unrestricted powers of taxation, by no fair rule of construction can it be said that the lawmaking body by Sections 3 and 74, when read in the light of' the rest of the charter, intended to set the power of taxation at large, so that the municipality might reach out and assume unto itself the power to tax without limitation or restriction; and, moreover, Section 3 expressly provides that it is “subject to the limitations prescribed by the Constitution and laws of the state.”
9. The contention, persistently made by the city, that it is not necessary to trace its right to legislate to some provision of its charter, is set at rest by Robertson v. Portland, 77 Or. 121 (149 Pac. 546). A charter is requisite now to the same extent as it was before the adoption of Section 2 of Article XI and Section la of Article IV, as those sections now appear in our Constitution. The power of a city to enact or amend its charter is conferred by Section 2 of Article XI, and the very language of that section implies the necessity of a charter. Section la of Article IV does not empower a city or other municipality to take unto itself any municipal authority; the words “local, special and municipal legislation,” found in this section of the Constitution, do not mean that a municipality can legislate unto itself a power to legislate: State ex rel. v. Port of Astoria, 79 Or. 1 (154 Pac. 399, 407). None but a city or town can legislate unto itself a power to legislate, and that privilege exists because of Section 2 of Article XI.
*209The judgment entered by the Circuit Court is affirmed. Affirmed on Rehearing.
Mr. Justice Eakin absent.