Area Dispatch, Inc. v. City of Anchorage

BOOCHEVER, Chief Justice,

with whom RABINOWITZ, Justice, joins, concurring.

I concur in the opinion but find that I cannot agree with the disposition of the argument advanced by the City of Anchorage that § 4.6 of the Home Rule Charter, passed in October of 1959, incorporates by reference the initiative requirements in existence at that time.1 Chapter 187 of SLA 1959 required signatures equal to 25 percent of the total number of votes cast in the last general election.

The majority contends that § 6 of Chapter 187 specifically excludes Home Rule Charter cities from its terms so that until Chapter 187 was amended by Chapter 118, SLA 1972, requiring signatures of only 15 percent of the votes cast, there were no referendum requirements incorporated by reference.

*1027Section 6(a) of Chapter 187, SLA 1959 specified:

The provisions of this Act shall not apply to Home Rule Charter Cities and Boroughs except as hereafter provided:
(a) The initiative and referendum shall be provided for in the Charter of Home Rule Charter Cities and Boroughs subject to the restrictions of Section 7, Article XI of the Alaska Constitution.

I cannot read this section as prohibiting a home rule city from adopting by reference the referendum requirements of state law. The Anchorage charter did this by stating that “A referendum be had on any act of the council in the manner and subject to the limitations set forth by law”.2

Section 6 of Chapter 187, prohibiting the application of its provisions to a Home Rule City, contained an exception for Home Rule Cities whose charters provide for a referendum procedure. The Anchorage charter recognized the right of referendum but did not establish procedures implementing that right except by reference to the manner “set forth by law”. Thus, I conclude that the charter incorporated the state statutory procedures relating to referendums. This conclusion is reinforced by the fact that “law” as defined in the charter includes state statutes.

Having reached that conclusion, it is necessary to resolve the issue of whether the incorporation by reference applies only to the state law of 1959 when the charter provision was enacted, or whether it includes amendments adopted thereafter. The 1972 amendment specified that signatures equaling 15 percent of the votes would be required in a city or borough of 7,500 persons or more 3 rather than 25 percent as required by the 1959 law. Generally, there are two types of reference statutes, specific and general. If there is reference to a specific statute by its title or section number, the reference incorporates the provisions as of the time of adoption without subsequent amendments unless the legislature has expressly or by strong implication shown a contrary intention. On the other hand, when there is adoption by general reference to the law on a subject, it will be considered as including all the amendments and modifications of the law subsequent to the time the reference statute was enacted.4

The provision of the Anchorage Charter on referendums contains a general reference to “the manner and subject to the limitations set forth by law” and does not refer to a particular act or section thereof. Accordingly, I agree with the result reached by the majority, namely that the reference must be construed as applying to the 1972 amendment to Chapter 187 whereby the percentage of signatures was reduced to 15 percent.5

. See Note 10 of the majority opinion.

. Section 4.6, Anchorage City Charter.

. AS 29.28.070(b)(2).

. 2 Sutherland, Statutory Construction § 5207, pp. 550-51 (3rd ed. 1943) ; Carruba v. Meeks, 274 Ala. 714, 150 So.2d 195 (1963) ; Campbell v. Hunt, 115 Ga.App. 682, 155 S.E.2d 682 (1965) ; State v. District Court in and for Delaware County, 253 Iowa 903, 114 N.W.2d 317 (1962) ; Dabney v. Hooker, 121 Okl. 193, 249 P. 381 (1926) ; Union Cemetery v. City of Milwaukee, 13 Wis.2d 64, 108 N.W.2d 180 (1961).

. Like the majority, I would not reach the question pertaining to a municipal corporation’s delegation of its legislative authority to future actions of another legislative body for the reason that that issue was not briefed or argued. See A. Doldervaart, “Legislation by Reference — a Statutory Jungle”, 38 Iowa L.Rev. 705, 706-24 (1953).