concurring.
I concur with that portion of the majority opinion which holds that the statement of contributions required by the ordinance was timely filed within the intendment of ORS 254.600. For the reasons hereinafter stated, I would not reach the remaining issues.
ORS 28.100 provides:
"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the valid*135ity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.”
This declaratory judgment proceeding does not join as a party Pacific Power and Light Company, the franchise holder and owner and operator of all properties affected by either Ordinance 123160 or the proposed initiative ordinance. Likewise this proceeding does not join as parties either the City of Portland, its mayor, or any of its duly elected governing board. It thus presents no opportunity to those persons, individual or corporate, who are the principal parties who "would be affected by the declaration” sought, to be heard; nor would any declaratory judgment issued be binding on any of them, nor constitute "the law of the case” in future litigation. Huszar v. Certified Realty Co., 272 Or 517, 538 P2d 57 (1975); Koch v. So. Pac. Transp. Co., 274 Or 499, 547 P2d 589 (1976); Morley v. Morley, 24 Or App 777, 547 P2d 636 (1976).
ORS 28.060 provides:
"The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”
In Unlimited Progress v. Portland, 213 Or 193, 324 P2d 239 (1958), our Supreme Court, in a suit to enjoin city officials from placing an initiative measure on the ballot, said:
"It is not necessary for us to consider the constitutional validity of the proposed measure as attacked in plaintiffs’ complaint. It may be that should this measure receive the approval of a majority of the voters in the city of Portland the reasons for invalidity of the measure set forth in plaintiffs’ complaint would void its enforcement. However, if a proposed measure is legally sufficient in that all the provisions of the law relating to initiative measures have been formally complied with so *136that the measure, regardless of the legality of the subject matter and substance contained therein, will require an administrative official to place it upon the ballot for consideration of the voters, the courts will not interfere with the attempt to enact the measure. It is only after the proposed measure is enacted that the courts have power to declare the measure ineffectual in law. Such is the established law of this state governing initiative measures proposed by the people of the state when acting in full compliance with the legal requirements of the initiative provisions of the constitution and laws of the state. State ex rel. v. Newbry et al., 189 Or 691, 222 P2d 737; State ex rel. Carson v. Kozer, 126 Or 641, 270 P 513.
"We are of the opinion this rule of law applies with equal propriety and force to municipal measures.” 213 Or at 195-96.
In O.S.E.A. v. Holman, 4 Or App 320, 478 P2d 657 (1971), we considered at length the propriety under the Declaratory Judgment Act of entering a judgment in the absence of joinder of proper parties, and said:
"Concerning declaratory judgment actions, ORS 28.110 provides:
" 'When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration * *
"In conformity with elementary concepts of due process, the statute continues:
" '* * * [A]nd no declaration shall prejudice the rights of persons not parties to the proceeding. * * *’
"The Oregon Supreme Court, in a carefully considered opinion, held in Stanley, Adm. v. Mueller, 211 Or 198, 315 P2d 125, 71 ALR2d 715 (1957), a declaratory judgment proceeding:
" 'We do not reach the merits for we are of the opinion that the court was not authorized to enter a declaration because of a want of necessary parties. The point was made for the first time by the defendant in his brief in this court, but, as will be shown, that is a matter of no consequence. The court could have raised the question on its own motion.
" 'The question is controlled by ORS 28.110, which *137is identical with § 11 of the Uniform Declaratory Judgments Act in effect in most of the states, and reads in part:
" ' "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” ’
" 'In our opinion the mandatory "shall” in this statute should be given its ordinary effect by the courts. We think that under this provision the courts have no authority to make a declaration unless all persons "who have or claim any interest which would be affected by the declaration” are parties to the proceeding. Otherwise, there is no "justiciable controversy” within the meaning of the statute.’ 211 Or at 200-202.
"It concluded its lengthy analysis of the authorities in the following language:
" 'Where the rights of parties with an interest are left undetermined the uncertainty and insecurity will remain and "courts properly decline to make declarations between parties when others, not bound, might later raise the identical question and deprive the declaration of that final and pacifying function it is calculated to subserve.” Borchard op. cit. at 256-257.
" 'We find nothing in the Declaratory Judgments Act, considered in its entirety and in the light of its expressed purpose, which warrants us in adopting a construction contrary to the mandatory language of ORS 28.110. And since it is clear that the section was intended to protect the rights of all parties having or claiming an interest which would be affected by the declaration sought, we are satisfied that an imperative construction is the only admissible one.
" '* * * The objection was not and could not be waived by failure to raise the question by demurrer or answer. * * *’ 211 Or at 209-10.
"More recently, the Supreme Court expressly reaffirmed that holding. Stearns v. Commission of Public Docks, 240 Or 255, 401 P2d 25 (1965). See also, 2 Oregon Civil Pleading and Practice, § 85.19-20 (CLE 1969); *138Borchard, Declaratory Judgments 255-58 (2d ed 1941).” 4 Or App at 323-25.
Because of the absence there of a necessary party, we also said:
"We are of the opinion that Prophet Foods Company, a Michigan corporation, is a necessary party to this case. Accordingly, we do not reach the questions herein sought to be raised.” (Emphasis supplied.) 4 Or App at 323.
In my opinion because of ORS 28.110 and 28.060 we should, based on the foregoing reasoning and authorities, decline to consider the remaining merits urged in this action. As does the majority, however, I would affirm the order dismissing the proceeding.