specially concurring.
I agree that Portland City Code (PCC) § 14.24.060 does not conflict with ORS 163.465, the state “public indecency” statute, and is valid under the “home rule” provision of the Oregon Constitution, Article XI, section 2. Because I do not agree totally with the statements and reasoning of the majority’s opinion, I write separately.
Article XI, section 2, of the Oregon Constitution empowers “the legal voters of every city * * * to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon.” The City of Portland (City), like many other Oregon cities, possesses extensive police power authority delegated to it by the State of Oregon.1 This extensive police power authority was initially obtained by the City in 1903 when, by special legislative act, the legislature enacted a new charter for the City. Preamble to Special Laws of Oregon 1903 (City’s 1903 charter).
*155Chapter III, Article IV, section 73(1), of the City’s 1903 charter granted the Portland City Council the power “[t]o exercise within the limits of the City of Portland all the powers commonly known as the police power, to the same extent as the State of Oregon has or could exercise said power within said limits.”2 (Emphasis added). Section 73(2) of that same chapter further granted the City the power “[t]o make and enforce within the limits of the city all necessary water, local,police, and sanitary laws and regulations.” (Emphasis added).
The legislature amended the City’s 1903 charter in 1905. Special Laws of Oregon 1905, ch 248, §§ 1-4, pp 191-96; ch 249, §§ 1-8, pp 197-202. Those amendments did not, however, affect the police power granted to the City in 1903. The legal voters of the City have periodically amended the 1903 charter under the home-rule powers of the Oregon Constitution (Or Const, Art XI, § 2; Or Const, Art IV, § 1(5)),3 but have reenacted and thus preserved intact the same broad police power authority originally enacted for it by the legislature in the 1903 City charter. That broad police power, recognized by this court in Covey Garage v. Portland, 157 Or 117, 122, 70 P2d 566 (1937), is presently found in Portland Charter section 2-105(a)(l). That section gives the City the power:
*156“To exercise within the City and City-owned property, all the powers commonly known as the police power to the same extent as the State of Oregon has or could exercise said power within said areas, and to make and enforce within said areas all necessary or appropriate water, local, police, sanitary and safety laws and regulations.” (Emphasis added.)4
Moreover, Portland Charter section 2-106 provides:
“[E] numeration of the particular powers granted to the Council in this Charter shall not be construed to impair any grant of power herein contained, express or implied, nor to limit any such general grant to powers of the same class or classes as those so enumerated. The City Council may exercise any power or authority granted by the Oregon statute to municipal corporations at any time and also to cities of a class which includes the City of Portland.” (Emphasis added.)
The ordinance at issue in this case, PCC § 14.24.060, was enacted pursuant to the City’s broad police power; it concerns a subject matter which is within the scope of the City’s police power. Under Article XI, section 2, of the Oregon Constitution, the state’s authority in the field of criminal law is paramount to that of a city.5 The fact that, under Article XI, section 2, the state’s authority in the field of criminal law is paramount to that of a city necessarily means that a city (1) cannot enact a penal law on a particular subject if the state legislature has preempted6 either the field of criminal law or that subject, and (2) cannot enact a penal law that conflicts with the Oregon Constitution or state criminal laws.
*157Extensive state legislation in a particular field does not necessarily mean that the state has preempted the field. Rather, when the state has intended its legislation to be exclusive, the state has preempted the field, thereby placing the subject matter beyond a city’s legislative competence to act in that field.7 With respect to criminal laws, that intent must be explicit, because in the absence of an explicit intent to preempt a field, ORS 221.330 expressly authorizes cities to “adopt as ordinances any statutes of the State of Oregon, the subject matter of which is within the scope of the charter authority by reference to the chapter or section, without further publication or posting thereof.” (Emphasis added.) See generally Etter, Referential Practices in Municipal Legislation, 39 Or L Rev 209 (1960); O’Connell, Municipal Corporations - Ordinances - Constitutionality of City Ordinances Which Adopt State Statutes By Reference, 37 Or L Rev 272 (1958). This court has recognized that the mere fact that certain conduct constitutes a crime under Oregon’s criminal statutes does not preclude any Oregon municipality from having concurrent authority to proscribe and punish the identical conduct. See, e.g., City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986) (city prostitution ordinances upheld after court severed invalid penalty provision); Harlow v. Clow, 110 Or 257, 223 P 541 (1924) (city vagrancy ordinance upheld) (partially overruled on other grounds by Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958)); Portland v. Parker, 69 Or 271, 138 P 852 (1914) (city vagrancy ordinance upheld); Wong v. City of Astoria, 13 Or 538, 11 P 295 (1886) (city ordinance prohibiting operating a bawdy house upheld).
In this case, there is no explicit legislative intent to preempt the field of criminal aspects of public indecency. To the contrary, the extensive police power delegated to the City by the 1903 special legislative charter, described above, demonstrates that the legislature did not intend to preempt either the field of criminal law or the subject of criminal aspects of public indecency.
Additional evidence of an absence of state preemption in the field of criminal aspects of public indecency is *158demonstrated by the provisions of ORS 221.916(8). Under that statute, cities organized under the 1893 Incorporation Act (now ORS 221.901 through ORS 221.930) have the express power to “[sjuppress and prohibit anything which is injurious to the public morals, public safety or the public health of the inhabitants of any such city[.]” ORS 221.916(8) (emphasis added). Thus, the state has not preempted either the entire field of criminal law or the criminal aspects of public indecency to the exclusion of municipal penal legislation. Nevertheless, even though a city’s authority to act in a particular field of criminal law is not preempted, the city’s penal legislation, in order to be valid, cannot conflict with state criminal laws. In City of Portland v. Dollarhide, supra, 300 Or at 502, this court stated a general test for determining whether a conflict exists between a state criminal law and a municipal penal ordinance. That test is “whether the [city] ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits.”8
If an ordinance expressly forbids what state law expressly permits, or vice versa, a conflict is obvious. It is error, however, to assume that the legislature’s silence in an area is the equivalent of an affirmative decision not to proscribe conduct, such that a municipal ordinance proscribing the conduct is somehow in conflict with the legislature’s silence. In many instances, the particular conduct is not even considered by the legislature. Even if the conduct was considered, the failure to enact state legislation may be motivated by considerations other than or in contrast with an affirmative decision not to proscribe conduct, e.g., the legislators’ belief that the conduct adequately can be dealt with by local legislation.
In this case, the challenged ordinance, PCC § 14.24.060, prohibits conduct that is not forbidden by state *159law. That is, the ordinance does not prohibit what the state legislature or the Oregon voters have permitted expressly, and there is nothing contradictory between the provisions of the ordinance and ORS 163.465, the state law relating to public indecency. Each proscribes different conduct. PCC § 14.24.060, therefore, is not in conflict with state law or Article XI, section 2, of the Oregon Constitution.9
In sum, the City has charter or police power authority to enact prohibitory legislation dealing with public indecency within its territorial limits. Local penal legislation in the field of criminal aspects of public indecency is permissible. PCC § 14.24.060 is not in conflict with ORS 163.465, the state “public indecency” statute, or the Oregon Constitution. For these reasons, the ordinance is valid under Article XI, section 2, of the Oregon Constitution.
For example, as to cities organized under the 1893 Incorporation Act (now ORS 221.901 et seq), see ORS 221.916 and, in particular, subsections 8 and 10 thereof.
The City’s first legislative charter became effective January 23, 1851, upon the passage by the Council of the Legislative Assembly of the Territory of Oregon. Special Laws of Oregon 1850-51, §§ 1-28, pp 16-22.
Or Const, Art XI, § 2 (originally in the Constitution of 1859 and amended by initiative petition in 1906 and 1910); Or Const, Art IV, § 1(5) (adopted in 1968 in lieu of former sections 1 and la, which had origins in the Constitution of 1859 and were adopted in 1902 and 1906 respectively). “By constitutional amendments the people of Oregon in 1906 empowered ‘the legal voters of every city and town... to enact and amend their municipal charter, subject to the constitution and criminal laws of the state,’ [Or Const, Art XI, § 2,] and reserved the powers of initiative and referendum ‘to the legal voters of every municipality ... as to all local, special and municipal legislation, of every character, in and for their respective municipalities.’ [Or Const, Art IV, § 1-a.l” Etter, General Grants of Municipal Power in Oregon, 26 Or L Rev 141,157 (1947) (footnote information inserted in brackets). The current version of Article IV, section 1(5), of the Oregon Constitution empowers “the qualified voters of each municipality” to exercise the powers of initiative and referendum “as to all local, special and municipal legislation of every character in and for their municipality * * Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution are closely related and are to be construed together. See Schmidt et al v. City of Cornelius, 211 Or 505,512,316 P2d 511 (1957), and cases there cited. See also Ronchetto and Woodmansee, Home Rule in Oregon, 18 Or L Rev 216, 217 n 4, 218 (1939).
Portland Charter section 2-105 contains 65 specifically-enumerated powers granted to the City, many of which are specific police powers.
The phrase “subject to,” in the context of Article XI, section 2, of the Oregon Constitution
“implies * * * that city voters cannot include in a city charter any feature that runs counter to the constitution or criminal laws of the state. The phrase also implies that subsequent changes in the constitution and criminal laws apply to charters and ordinances, impliedly amending or even repealing every conflicting provision in them. The phrase implies that the preceding prohibition against the legislature’s amending a city charter is limited to amendment by noncriminal law, allowing the legislature to affect city law by state criminal law but not by noncriminal general law — * * * not by ‘civil’ law. ” Etter, Municipal Home Rule in Oregon 554-55 (Sourcebook version 1991) (footnotes omitted).
The effect of preemption is to place the subject matter beyond the legislative competence of municipalities. See Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harv L Rev 737, 746 (1959).
The legislature may, of course, reserve for its exclusive control certain aspects of a particular subject matter and leave other aspects of that subject matter for municipal legislation.
Rigid adherence to the general conflict test can result in an unsatisfactory result in some situations. A city ordinance may interfere with, alter, or impede defined state policies or objectives and yet satisfy the general conflict test. Fischer v. Miller, 228 Or 54, 363 P2d 1109 (1961), illustrates state preemption in a field to the exclusion of local legislation. In Fischer, this court found the state law on its face to be exclusive. This court found that the state law gave the Oregon State Game Commission full power and authority concerning hunting of game birds. As a result, this court declared invalid local legislation regulating the hunting of game birds. Id. at 58. A literal application of the general conflict test would have resulted in a different result.
An ordinance is also, of course, subject to constitutional attack for violation of other provisions of either the Oregon or the federal constitution. No such challenge has been raised in this case, however.