Barber v. Johnson

*398Rehearing denied November 20, 1917.

On Petition for Rehearing.

(167 Pac. 1183.)

On petition for rehearing. Denied.

Messrs. Huston & Huston and Mr. W. P. Myers, for the petition.

Mr. William 8. XJ’Ben, contra.

Department 2.

Mr. Justice McCamant

delivered the opinion of the court.

It is earnestly insisted in plaintiff’s petition for a rehearing that we have erred in the construction placed upon Section 6 of Chapter 10 of the Session Laws of 1913. This section authorizes the qualified voters of a new county “to vote for and select the place of county seat in the manner provided by law.” It is contended that the only provision of law which the legislature had in mind and to which the above statute can be referred is Chapter 3 of Title XXV, comprising Sections 2877 to 2885, L. O. L. These sections of the Code are an act passed in 1903 empowering the inhabitants of any county to remove their county seat. The act provides that on petition of three fifths of the electors of any county it shall be the duty of the County Court to submit at the nest general election the question of removing the county seat. The people of the several counties required no grant from the legislative assembly of 1913 in order to make this remedy available to them. They had enjoyed for ten years the powers conferred by Sections 2877-2885, L. O. L. Section 6 of the Act of 1913 pur*399ports to grant to the electors of a new connty the power to select their county seat at the first general election following the organization of the county. If the power granted by Section 6 of the Act of 1913 is the power given ten years before by Sections 2877-2885, so much of the later act as authorizes an election to determine the county seat is surplusage and has no legal effect. The clear reference in Section 6 of the Act of 1913 is to a law providing a manner for exercising the power granted.

We are accustomed to the exercise of popular power by majorities. When the legislature empowers the qualified electors of the new county to vote for and select the place of county seat, the language, construed in harmony with the ordinary use and meaniiig of the words used, imports a grant to the majority to act in the premises, not a grant conditioned on preliminary action by three fifths of the electorate.

Section la of Article IV was incorporated in the Constitution in 1906. In 1907 the legislature enacted a statute to make it effective. The case of Schubel v. Olcott, 60 Or. 503 (120 Pac. 375), was decided in 1912. . In his opinion in this case Mr. Justice Bean says:

“Article IV, Section la, and Article IX, Section la, of the Constitution, are not self-executing in respect to counties, as they make no provisions regarding the manner of their enforcement. By the first of these, the initiative and referendum powers reserved by the people are further reserved to the legal voters of every municipality and district as to all local, special and municipal legislation of every character in their respective municipalities and districts. By the second, the people of the several counties are empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted. In Article IV, Section la, it is specifically provided that *400the manner of exercising such powers shall be prescribed by general laws, except as to cities and towns; neither section containing rules by means of which this right may be given the force of law as regards local legislation in counties. * * Hence we must look at the general laws of this state for the manner of executing these sections of the organic law.
“Turning to the legislative enactment of 1907, being Section 3470 et seq., L. O. L., it appears that the legislature intended to and did make all the necessary rules for carrying into effect the initiative and referendum provisions of the Constitution.”
“A county is a public corporation, classed with cities, towns, and villages, and invested with subordinate legislative powers to be exercised for local purposes connected with the public good, and subject to the control of the State: 2 Kent, *275.”

The legislative assembly of 1913 was familiar with Article IV, Section la of the Constitution, with the Act of 1907, Sections 3470-3485, L. O. L., and with the construction so recently placed upon these provisions by this court. The natural interpretation of Section 6 of the Act of 1913 connects it with the foregoing provisions of law, as defining the manner of exercising the power granted.

Nor does the concluding sentence of Section 6 militate against the correctness of the above reasoning. This concluding sentence is as follows:

“Immediately after the selection of such county seat either by the County Court or by the canvass of the returns of votes cast at the election for that purpose, the County Court shall issue its proclamation and publish the same in a newspaper published in such new county, if there be one, and if not by posting a copy of such proclamation in each election precinct in such county announcing the selection and location of such county seat.”

It is provided by Section 3420, L. O. L., that on the completion of the canvass of the votes cast in each *401county the county clerk shall make a record of the vote of the electors on all measures voted on. The county clerk is clerk of the County Court: Const., Art. YII, § 15. The record being readily accessible to the County Court and the matter being one of local interest chiefly, provision is made that the County Court shall proclaim the result in a maimer well calculated to advise the community. It was a reasonable exercise of the power of the legislature to provide for such local announcement in addition to the gubernatorial proclamation provided for by Section 3479, L. O. L.

It is contended that we are in error in holding that the selection of a county seat is legislation within the purview of Article IY, Section la of the Constitution. Plaintiff cites McWhirter v. Brainard, 5 Or. 426, 430, and the following decisions wherein the above case is discussed: Baker County v. Benson, 40 Or. 207, 221 (66 Pac. 815); State v. Corvallis & Eastern R. R. Co., 59 Or. 450, 458 (117 Pac. 980); Murdoch v. Klamath County Court, 62 Or. 483 (126 Pac. 6). We find no intimation in any of these decisions that the change of a county seat is not legislation. The question mooted in McWhirter v. Brainard was the constitutionality of the enabling act for locating the county seat of Union County. It was contended that the act was unconstitutional as delegating legislative power to the people. The constitutional amendments referred to in the former opinion have made this question purely academic in this jurisdiction. It was held that under the facts involved in McWhirter v. Brainard the change of county seat was to be deemed made by the legislature although it became effective, if at all, by a vote of the electors interested. This decision and the other decisions in which this case is dis*402cussed all imply that the location and removal of county seats are legislative functions. We think it follows that it was competent for the legislature to clothe the people of Jefferson County with power to act in the premises and that therefore the initiative provisions of the Constitution and Sections 3470-3485, L. O. L., became applicable.

It is contended that we are in error in assuming that the stipulation on which the case was tried admits that the requirements of Sections 3470-3485, L. O. L., were complied with. The stipulation is in part as follows:

“If the Court shall be of the opinion that there are no omissions or defects in the notice of election given herein and which is set out in the amended complaint and also in the answer, that are sufficient to invalidate the election as to the said bill for a local law, being Numbers 322 to 323 on the official ballot, and shall also be of the opinion that proceedings for the location of the county seat may be had under the initiative and referendum provisions of Chap. 3, Title 25 of L. O. L., then the Court shall overrule the demurrer of the plaintiff and give judgment for the defendant dismissing this suit.”

This language is a clear waiver of any irregularities in complying with the above provisions of the Code. The legal effect of the stipulation is therefore as stated in the former opinion. We may add that the answer sets up in detail the steps taken in compliance with these provisions and there is no reply. The affirmative allegations of the answer are therefore admitted.

We adhere to the former opinion and deny the petition for a rehearing.

Affirmed. Rehearing Denied.

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