dissenting.
I dissent because I believe the majority has denied the voters of Portland their constitutional right of initiative.
The majority’s error is discernible from the very passages they quote. Part of the majority’s quotation from Monahan v. Funk, 137 Or 580, 584, 3 P2d 778 (1931) states that:
"In determining whether the ordinance in question was legislative or administrative, we notice that the authorities in the books are in accord that actions which relate to subjects of a permanent or general character are considered to be legislative, while those which are temporary in operation and effect are not. Acts, which are to be deemed as acts of administration and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared, either by the legislative municipal body, or such as devolved upon it by the organic law of its existence. * * *” (Emphasis supplied.)
The purpose of the initiative measure was manifestly not to carry out a policy "already declared”; rather the purpose was the opposite: to declare a policy.
The majority also quotes from Monahan that:
"The crucial test, for determining that which is legislative and that which is administrative, is whether the ordinance was one making a law or one executing a law already in existence * * (Emphasis supplied.) 137 Or at 585.
What "law already in existence” did the initiative measure undertake to execute? None. Rather, the proposed initiative measure sought to make a new law (requiring the city council to support the freeway) and replace an old law (rescinding approval of the freeway).
The majority also quotes from the recent case of State ex rel Allen v. Martin, 255 Or 401, 407, 465 P2d *230228 (1970) which upheld an initiative measure against the challenge that it concerned administrative matters concerning dissolution of a parking district. The majority’s quotation with proper emphasis is:
" '* * * Generally, an ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is purely legislative in character * * * while an ordinance which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable.’ * * *” (Emphasis supplied.)
The proposed initiative measure (see Footnote 2 of the majority opinion) has the aim and effect of "laying down a * * * course of policy” — that the freeway should be built.
The whole Mount Hood Freeway controversy is a dispute — not about details of execution, but — about the "policy” question of whether or not to seek federal approval of the freeway. The establishment of public policy is a legislative, not a judicial, function. State of Oregon v. Blount, Sr., 200 Or 35, 46, 264 P2d 419 (1953); Anderson v. Finzel, 204 Or 162, 170, 282 P2d 358 (1955); 82 CJS 24, Statutes § 9; 16 Am Jur 2d 380, 382, Constitutional Law § 167; 72 CJS 213-14, Policy.
The majority opinion unjustifiábly restricts the people’s power of initiative; it is contrary to both the words and spirit of the constitution.
The obvious purpose of the initiative power is to allow the people to legislate directly — their powers, then, should be co-extensive with the legislature. Rose v. Port of Portland, 82 Or 541, 552, 162 P 498 (1917); 82 CJS 197, Statutes § 118.
This right of initiative is available on equal terms to the voters in municipalities as to "* * * all * * * municipal legislation, of every character * * Oregon Constitution, Art IV, § 1(5). (Emphasis supplied.)
*231The importance of the words "of every character” was noted by our Supreme Court in Barber v. Johnson, 86 Or 390, 396, 167 P 800, 167 P 1183 (1917) as follows:
"The words 'of every character’ must mean something and were inserted for a purpose. They forbid a narrow technical construction of the word 'legislation.’ ”
Our Supreme Court has repeatedly held that the initiative power is to be given a liberal construction, favoring the right of the people to its exercise. In Othus v. Kozer, 119 Or 101, 109, 248 P 146 (1926), which involved an initiative petition, the court said:
"Election laws should be liberally construed: [Citing cases.] The great constitutional privilege of a citizen should not be taken away by a narrow or technical construction of a law regulating the exercise of such right. * i}c
See also, Kays v. McCall, 244 Or 361, 373, 418 P2d 511 (1966).
I respectfully dissent.