dissenting.
My reasons for dissent may be summarized as follows:
1. The majority would ignore the fact that all parties, including the State of Oregon, the cities of Oregon, and the unions representing Oregon policemen and firemen have rejected the distinction adopted by the majority for application of the Home Rule amendments between cases involving the "structure and procedures” of city government (in which cities would retain some limited measure of exclusive home rule power), and cases involving matters of "substantive policy,” (in which, under the newly adopted rule of "legislative supremacy,” the legislature can supersede provisions of city charters or ordinances).
*1872. The attempt by the majority to find "identifiable criteria derived from constitutional command” to support that distinction between "procedures” and "substance” by reference to the word "charter” in the Home Rule amendments is demonstrably without merit.
3. That same distinction is also inconsistent with the legislative history of the Home Rule amendments, as conceded by all parties to the case.
4. The newly adopted "procedure — substance” distinction will create more problems than it will solve and will not enable this court to decide Home Rule cases by the application of "identifiable criteria, derived from constitutional command,” as claimed by the majority.
5. The majority opinion will strip Oregon cities of most exclusive "home rule” powers, including the power to determine the compensation to be paid to their own employees, and will subject cities to control by the state legislature in all matters involving "substantive policy,” including liability for payment of financial burdens resulting from social programs mandated by the state legislature.
I. The previous majority opinion.
In considering the opinion by the majority which "reaffirm(s)” the constitutionality of the challenged statutes it is first important to bear in mind that the majority would not only reaffirm the result reached by its previous majority opinion, but would also reaffirm the new rule of "legislative supremacy” as stated in that opinion, including the basis for that rule in the newly recognized distinction between matters of "the structure or procedures” of "government” and matters of "substantive policy.”1
*188It is also important to bear in mind that the result of the adoption of that rule, based upon this distinction, is not only to affirm the validity of the current statute requiring cities to provide insurance policies and retirement benefits to policemen and firemen in accordance with the requirements of the state Public Employes Retirement System, but to hold that under that rule the legislature is empowered to impose upon cities the financial burden of payment of these or other benefits to all city employees, including all clerks, janitors and street cleaners, and in amounts as required by statute, and to provide by general laws that cities must conform to requirements prescribed by the legislature as to any and all substantive matters that it may choose to impose upon cities.
The importance of recognizing the broad sweep and the needless "overkill” of the previous majority opinion is emphasized by the fact that at the argument on rehearing the attorney representing the cities conceded, in response to a question, that these statutes involving policemen and firemen might be valid even under the test as previously established and recognized by unanimous opinions of this court for a period of over 40 years.2 The primary concern of the cities is not so much the result in this case, but the result that would be required in future cases by the adoption of a new rule of "legislative supremacy” under which the state legislature may overrule provisions of city charters and ordinance provisions as to matters of "substantive policy” and also as to any matter involving *189the "structure and procedures” of local government in which there is a need to "safeguard the interests of persons or entities.”
II. Reasons for requesting reargument and concessions made on reargument.
The new rule of "legislative supremacy” as adopted by the previous majority opinion, including, in particular, the distinction between matters of the "structure and procedures” of local government and matters of "substantive policy,” was attacked by a petition of the cities for a rehearing. That petition undertook, for the first time, to set forth the legislative history of the Home Rule amendments and to demonstrate that the distinction which was the basis for the majority opinion was inconsistent with that legislative history.3
This court then called for reargument of the case, based upon a letter to the parties requesting argument on two specific questions.4
*190It is of interest that the opinion by the majority makes no reference either to that request or to those questions, which provided the basis for reargument of the case and stated the questions which presumably were of primary concern to the court in calling for reargument.
Of even greater significance is the fact that the majority opinion would completely ignore important, if not vital, concessions made by all parties at the time of the oral argument. Thus, not only did the cities contend, as in their petition for rehearing, that the distinction between matters of the "structure and procedures” of local government and matters of "substantive policy” was inconsistent with the legislative history of the Home Rule amendments, but both the attorney representing the State of Oregon and the attorney representing the policemen and firemen unions specifically conceded this point in response to questions on oral argument. None of these parties supported the adoption of that distinction, which is the basis for the majority opinion.
In addition, the attorney for the state conceded, in response to a question, that in cases involving matters of the "procedures of local government” the application by this court of the exception permitting "legislative supremacy” even in such cases upon the showing of a "need to safeguard the interests of persons or entities” would require this court to make "political decisions” to the same extent as now required under the "predominant interest” test of Heinig.
No one reading the majority opinion would be informed of these important facts.
III. Language of the Home Rule amendments.
The majority opinion (at 177) is critical of the cities for their failure "to point to precise words in article XI, *191section 2, as denying the legislature’s authority to enact these laws.” The majority then purports to find "precise words” in Art XI, § 2, providing "identifiable criteria, derived from constitutional command” to support its contention that the Home Rule amendments, although granting certain powers to the voters of cities, did not limit the power of the legislature except with reference to provisions of charters relating to "organic and constitutive powers of self-government,” i.e., "structure and procedure” of local government, as distinct from provisions of charters and ordinances relating to matters of "substantive policy.” In other words, the majority now purports to find in the reference in Art XI, § 2, to "charter” a basis in "precise words” to support the distinction made by the previous majority opinion between matters of "structure and procedure” and matters of "substantive policy.” No such contention was made by the majority in its previous opinion, nor by any party at any time.
With all due respect, it is submitted that this new analysis is fatally defective for the following reasons:
(a) The majority assumes that because a charter is the "constitution” of a city, the reference in Art XI, § 2 to "any charter” must be taken as meaning only those provisions of a city charter relating to its "organic and constitutive powers of self-government.”
The opinion concedes (at 177-78), as does the original majority opinion (281 Or at 150), that an ordinance adopted validly under the provisions of a charter has the same status as a charter insofar as the limitation of Art XI, § 2, is concerned. The opinion also concedes that just as a constitution may include provisions relating to substantive policy a charter may also include such provisions, but assumes that the reference in Art XI, § 2, to "charter” excludes any such provisions.
This assumption is not only without foundation in any language of Art XI, § 2, but is contrary to historical experience. The Constitution of the United *192States includes its Bill of Rights, which surely relates to matters of "substantive policy.” Who is to say that the provisions relating to due process, self-incrimination, search and seizure are of less importance than provisions enumerating the powers of Congress? Similarly, the very first article of the Constitition of Oregon is a "bill of rights.”
There are no "precise words” in Art XI, § 2, which demonstrate that in the use of the term "charter” it was intended to include only those provisions of a city charter or ordinances relating to matters of the "structure or procedures” of city government and to exclude provisions of charters and ordinances relating to matters of "substantive policy.” If there is any doubt as to the correctness of this conclusion, any such doubt is removed upon consideration of the legislative history of Art XI, § 2, which all parties concede to be inconsistent with any such distinction.
(b) According to the majority opinion (p 178) a charter is a "grant of power,” and the "special function” of a charter, among other things, is "to establish its governing organs, their selection, their powers, and their limits.” One of the most common and essential powers conferred upon the "governing organ” of a city is the power to set the compensation for all city employees.
It follows that for the majority to hold that the legislature may adopt a statute which purports to limit this commonly recognized and essential power of the "governing organ” of a city is to hold that the legislature may amend the provisions of the charter of a city which grant such powers to its "governing organ.” Thus, upon recognizing that one of the primary functions of the charter of a city is to set forth the powers of its "governing organ,” the majority must also recognize that because Art XI, § 2, provides that the legislature cannot amend any city charter, that prohibition extends to the provisions of a charter conferring powers upon its "governing organ,” including the power to set the compensation for all city employees.
*193The previous majority opinion viewed a state statute requiring payment of pensions to policemen and firemen as one "addressed primarily to substantive social, economic or other regulatory objectives of the state,” rather than as a statute "addressed” to the "structure or procedures” of city government. (281 Or at 156) The direct effect of such a statute, however, is to "amend” the charter provisions of cities which grant to their "governing organs” the power to control the compensation paid to all city employees, including "fringe benefits” of pensions and insurance. This, according to the new rationale by the majority, would be contrary to the express prohibition of Art XI, § 2. Thus, as stated by the majority opinion (at 178):
"* * * [T]he 1906 amendment withdrew this legislative control over charters and left the decisions how to structure and empower their municipal organs to the voters of each city or town.” (Emphasis added)
(c) The terms of Art XI, § 2, expressly provide that the power of voters of cities to adopt charters (and, by implication, ordinances, as conceded by the majority opinion) is subject to the constitution and criminal laws of the State of Oregon. This express reference to criminal laws demonstrates that the limitation imposed by Art XI, § 2, upon the power of the legislature was not confined to charter provisions and ordinances relating to matters of "structure and procedures” of local government, but extended to charter provisions and ordinances relating to matters of "substantive policy.”
This is clear because there is little, if any, possibility of conflict between a charter provision or ordinance relating to the "structure or procedures” of city government and a state criminal law. On the contrary, it is when a city charter or ordinance involves a matter of substantive policy, such as "local option” (as discussed below), that there may well arise a possibility of conflict with a state criminal law.
The construction as now adopted by the majority might be otherwise plausible if the Home Rule *194Amendments had provided that the state, by "general” law, could supersede any charter provision or ordinance relating to a matter of substantive policy. As discussed below, however, that term was deliberately rejected and was replaced by the term "criminal law,” which has primary, if not exclusive, application to charter provisions or ordinances relating to matters of "substantive policy.”
(d) The majority also ignores the provisions of Art IV, § 1(5), which expressly confer upon voters of cities the powers of initiative and referendum as to "all local, special and municipal legislation of every character in or for their municipality or district.” Under the majority opinion, there would be two possible results in the application of this constitutional amendment, which was adopted at the same time as Art XI, § 2. These are as follows:
(1) That by reason of Art IV, § 1(5), the legislature could not override a charter provision or ordinance adopted by initiative or referendum, even though relating to a matter of "substantive policy,” because it would fall within the term "local * * * and municipal legislation of every character,” but could nevertheless set aside any charter provision or ordinance not adopted by initiative or referendum on the same subject. Obviously such a result would make no sense.
(2) That by reason of Art IV, § 1(5) voters of cities would have exclusive power by initiative and referendum to enact charter provisions or ordinances relating only to matters involving the, "structure or procedures” of city government (in the sense that such a provision would not be subject to legislative veto), but would not have such exclusive power to enact a charter provision or ordinance relating to a matter of "substantive policy,” which could be "vetoed” by the legislature. Such a result would make no more sense because Art IV specifically extends to "all local * * * and municipal legislation of every character.”
*195For these reasons, the attempt by the majority to find in the word "charter” a "precise” word providing "identifiable criteria derived from constitutional command” to support its distinction between matters involving "structure and procedure” and those involving matters of "substantive policy” is demonstrably without merit. How much more realistic it would be to focus instead upon the words "local * * * and municipal legislation of every character,” as stated in Art IV, § 1(5), as the words which state the intended scope of the exclusive Home Rule powers granted by these two amendments. As next discussed, this conclusion is reenforced by consideration of the legislative history of the Home Rule amendments, which demonstrates that the sponsors of those amendments claimed no more than that they conferred Home Rule powers as to all "local” matters, although they claimed "complete home rule” as to all local matters.
IV. The legislative history.
As previously stated, all three parties, including the cities, the State of Oregon and the unions, agreed at the time of oral reargument that the distinction in the previous majority opinion between matters involving the "structure and procedures” of city government and matters involving "substantive policy” is inconsistent with the legislative history of the Home Rule amendments.
First, and of primary importance, is the "historical fact” that the original draft of Art XI, § 2 (SJR 3, as adopted by the legislature in 1901 and 1903), would have provided that all city charters "shall be subject to and controlled by general laws,” whereas the amendment, as finally adopted, provided that the power to enact city charters is subject only to the constitition and criminal laws of the state. This change was made after circulation of the original proposal by a letter dated September 6,1905, requesting "suggestions and criticisms” of its "language.” This, in my opinion, is convincing evidence of an intent by the sponsors of the *196initiative measure, as submitted to the voters in 1906, to reject the proposal by the legislature that city charters adopted under the Home Rule amendments would still be subject to "general laws” of the state.
The majority would, in effect, reinstate the provision making such charters subject to general laws of the state as to all matters involving "substantive policy.” According to the majority, this would include the power of the state by general laws to supersede powers granted in a city charter to determine the compensation payable to all city employees. The only answer by the majority to this contention is to restate (at 181) the proposition that a city charter is the "organic law” of the city. To me, this begs the question.
Without relating in detail the legislative history of the Home Rule amendments, particular attention is also called to the following additional facts:
(a) The statement in the original proposal by the legislature for a Home Rule amendment (SJR 3) that the charter of a city "shall become the organic law thereof,” so heavily relied upon by the majority (at 181), as well as provisions that the legislature shall provide by general laws for the incorporation of cities, were all deleted in Art XI, § 2, as finally drafted by the sponsors of the initiative measure and as adopted by the voters.
(b) The fact that Art IV, § 1(5), was added, so as to provide specifically that voters of cities shall have initiative and referendum powers as to "all local * * * and municipal legislation of every character * * *.”
(c) The statement in the pamphlet supporting the adoption, by initiative, of the Home Rule amendments in 1906 that their adoption would "give complete home rule” to the voters of cities as to "all purely local business.”
(d) The fact that this court in Hall v. Dunn, 52 Or 475, 486, 97 P 811 (1908), recognized that intervention by the legislature in the controversy over "local option,” clearly a "substantive” matter, "also induced *197the granting of (Home Rule) power to the legal voters of every city.”
(e) The fact that in 1908 in a Voter’s Pamphlet argument in opposition to another constitutional amendment (which was not adopted) it was stated that:
"The foregoing proposed amendment is entirely superfluous, inasmuch as all cities and towns in the State of Oregon do now enjoy the fullest possible home-rule, having absolute self-government — the right to make and amend their own charters and enact their own laws, SUBJECT ONLY TO THE CONSTITUTION AND THE GENERAL CRIMINAL LAWS OF THE STATE. * * *”5 (Emphasis in original)
(f) The fact that Art XI, § 2, was further amended in 1910 to confer upon cities power to control the sale of liquor, subject to provisions of the "local option” law, after a campaign in which Voter’s Pamphlet arguments in favor of the amendment argued that it was "necessary to round out” the Home Rule powers of cities and that cities already had "absolute self-government on all other questions, subject to the criminal laws of the state.” In adopting that amendment the people rejected Voter’s Pamphlet arguments that "our cities must not be permitted to set up separate principalities in absolute independence of our state laws * * As contended by the cities, the adoption by the voters of that amendment "strongly suggests” that when the voters "took what was recognized as a criminal law matter” (and one involving substantive policy) and "put it over on the city side,” they thought that the cities already had "exclusive control over certain civil (and substantive) matters *198and were granting cities exclusive control over one criminal (and substantive) matter.”6
Based upon these "historical facts,” all parties agreed on oral argument, that neither W.S. U’Ren nor any of the advocates or opponents of the Home Rule amendments ever "dreamed,” much less "intended” (to paraphrase Rose and the original majority opinion), that 70 years later a majority of this court would hold that the Home Rule amendments would be applied differently as to matters involving "structure and procedures” of city government and matters of "substantive policy” and that despite the change in language from "general” to "criminal” laws the legislature can nevertheless, by "general law,” supersede not only city charter or ordinance provisions relating to matters of "substantive policy,” but also city charter provisions conferring power upon cities to control the compensation paid to all city employees.
This same conclusion is also supported by the numerous decisions by this court both before and after Rose, as cited by the State of Oregon in its brief. These decisions recognized that under the Home Rule amendments cities were granted autonomy as to all "local” or "municipal” matters, as stated in Art IV, § 1(5), in accord with the professed intentions of the proponents of those amendments.7
*199It is no answer to these contentions to say, as stated by the majority (at 183) that the cities may still "pursue specified social objectives and social policies.” Under the proposed opinion any such "pursuit” might well be illusory because the legislature could at any time choose to pre-empt the subject, even if it involved a matter of "purely local” concern. Of more importance, however, this case does not involve the "pursuit” by a city of a "socialpolicy, ” but the question whether the essential power conferred by a city charter upon its governing body to determine the compensation to be paid to its employees may be superseded by a general state statute.
V. Problems arising from the "procedure-substance” distinction.
The second question upon which arguments of counsel were requested on rehearing was "what, if any, other reasons there may be in support of or opposition to” the distinction in the original majority opinion between matters of "structure or procedure” and matters of "substantive policy,” including "what, if any, problems may result from the application of that distinction in future cases.”
Neither counsel for the State of Oregon nor counsel for the unions made any attempt to support the "pro.cedure-substance” distinction. As previously stated, both rejected and disowned that distinction.
Counsel for the cities, on the other hand, characterized the "procedure-substance” distinction as a rule which will involve the courts of Oregon in a "tussel with a tar baby” and suggested examples of problems that will arise in future cases from the adoption of such a rale, including the following:
*200(a) In the important area of land use planning, serious problems could arise in the application of state statutes in a metropolitan area involving two cities, such as Eugene and Springfield, both of which have charter or ordinance provisions on that subject. Such local charter or ordinance provisions may well include procedures for land use planning. Under the "procedure-substance” distinction such charter or ordinance provisions, because they involve "procedures,” could not be superseded by state law unless held to come within the exception as stated by the previous majority opinion under which such provisions may be superseded by state statute if such a statute is "justified by a need to safeguard the interests of persons or entities.” The application of such a test, however, would require the court to make a pure "policy” determination and one which would be made without the benefit of any "identifiable criteria” in "precise” words of the constitution.8 That determination would also be much more difficult by the requirement of a finding of "need,” i.e., "necessity.” How much more realistic it would be to simply "cut through” this "two-layer cake” of "procedure” and "substance” and determine whether the state’s interest in land use planning "predominates” over local choice of procedure for land use planning, as under the test previously adopted by a unanimous court in Heinig.
(b) The open meeting law is also an example of a statute which arguably, if not probably, involves a matter of "procedure,” at least if and when applied to overrule the provisions of a city charter or ordinance which permit "nonopen” meetings, such as "executive sessions” of a city council. Under the proposed opinion state law would not prevail unless "justified by a need to safeguard the interests of persons or entities” — a pure policy determination. Under the Heinig test, however, it would be much more simple to hold that *201the state has a "predominant interest” in openness in government at all levels, including cities.
(c) The Austrialian ballot is another example of a possible conflict between state laws and provisions of city charters or ordinances on a "procedural” matter as to which, under the proposed opinion, state law could only be held controlling upon a finding of a "need to safeguard the interests of persons or entities” — a test which is obviously not based upon any "identifiable criteria” to be found in the words of Art XI, § 2, or Art IV, § K5).
In addition, the entire "procedure-substance” dichotomy requires an exercise in semantics that will lead to more problems and litigation than it will solve and prevent. For many years the courts have been criticized by legal scholars for their tendency to decide cases by the adoption and application of "categories” which may become little more than "labels,” i.e., for the application as an exercise in "mechanical jurisprudence.9 One of the principal objects of attack by these legal writers has been the distinction between matters of "substance” and "procedure.”10 As pointed out by them, these terms are by no means "infallible categories” and the meaning to be given to them, as well as the distinction between them, often defies logical or objective explanation.11 As also stated by the Supreme Court of the United States in Hanna v. Plumer, 380 US 460, 471 (1964), "The line between 'substance’ and 'procedure’ shifts as the legal context changes.”
Indeed, this court has rejected the distinction between "procedure” and "substance” as a test for application in determining whether a state statute is to be applied retroactively. Thus it was held in Joseph v. Lowery, 261 Or 545, 549, 495 P2d 273 (1972), that
*202"* * * The labels ["procedural” and "substantive”] were applied [in past decisions by this court] after the court decided whether it thought a new statute affected legal rights and obligations arising out of past actions.12
Finally, under the heading of "problems” created by the majority opinion, as well as by the previous majority opinion, it is important to again bear in mind the financial impact upon the cities of a rule of "legislative supremacy” in all matters "addressed primarily to substantive social, economic, or other regulatory objectives of the state.” As stated in my original dissent (281 Or at 192):
"The most pernicious feature of the doctrine of state supremacy over cities is the tendency of the legislature to lay burdens on the cities. * * *”
Indeed, according to the cities, the financial burden imposed by these statutes may well cause some small cities "to choose between a volunteer fire department or a paid one.”13
Under the Heinig test this court could properly consider the financial impact of state statutes upon a city as at least one factor in deciding whether the interest of the city "predominates” over that of the state. Under the majority’s rule of "legislative supremacy,” however, no consideration may be given to that fact. Instead the questions to be decided by this court would be whether the statute is "addressed primarily to substantive social, economic, or other regulatory objectives of the state” or, if the statute involves a matter of the "structure or procedures,” of local government, whether there is a "need to safeguard the interests of persons or entities.”
*203With all due respect, it is submitted that to adopt such rules as the basis for decision of Home Rule cases is to adopt rules stated in "rubbery adjectival language” that will only cause more problems than they will solve.
VI. The futile search for "identifiable criteria derived from constitutional command.”
The primary criticism of the "predominant interest” test of Heinig by the previous majority opinion was that it required this court to decide cases based upon "the court’s own political judgment” (281 Or at 154), whereas in such cases "the court’s decision must be derived from a constitutional standard * * (281 Or at 147) The majority purports (at 178) to find in the word "charter” in Art XI, § 2, a basis to support its distinction between matters of "procedure” and "substance” as a distinction based upon what are described (at 185) as "identifiabale criteria, derived from constitutional command to the legislature to let local voters choose their own modes of government.”
For the reasons previously stated, it is submitted, with all due respect, that the word "charter” in Art XI, § 2, provides no such "identifiable criteria”; that the "procedure-substance” dichotomy, which provides the basis for the proposed opinion, is "invisible” in the terms of the Home Rule amendments and that the application of that dichotomy, together with the exceptions which must also be applied under it, would continue to involve this court in the making of "policy” determinations, without the benefit of "identifiable criteria” based upon any "constitutional command.” Thus, in my view, the quest by the majority for a solution under which this court can decide "Home Rule” cases by the application of "identifiable criteria derived from constitutional command” has been vain and illusory.
I would be the first to agree that, whenever reasonably possible, this court should not decide cases by the exercise of its "political judgment” and that if such *204"identifiable criteria” can be properly found in the words of the Home Rule amendments, they should be controlling in cases such as this. Unfortunately, it is one of the "facts of life” that constitutions do not always provide such "identifiable criteria.”
A close analogy arises in cases involving the question of "separation of powers.” The constitution provides no "identifiable criteria” to be applied in cases such as the recent one in which the legislature sought to require that appointments by the governor be made subject to its approval.14 Instead, as the Oregon Constitution is written, the people of Oregon have imposed upon this court the duty to act as a "constitutional referee” between the executive and legislative branches of government in cases involving matters over which each claims exclusive power.
Similarly, the people of Oregon, in whom all sovereignty resides, can "parcel out” that sovereignty as they choose between the state and the cities. By adoption of the Home Rule amendments they have made a grant of power to the cities, including a grant of power to enact and amend charters including, by implication, ordinances pursuant to such charters (as the majority opinion would agree), and a grant to the voters of cities to do so by the exercise of initiative and referendum powers "as to all local * * * and municipal legislation of every character.”
It follows, in my judgment, that even though no more "identifiable criteria” can be found in these terms than the words "local” and "municipal” legislation, the people of Oregon have imposed the duty upon this court to act as a "constitutional referee” to decide, by the application of these words, all disputes in cases in which the state legislature and city claim exclusive power of legislation, just as this court must decide disputes between the legislature and the governor over claims of exclusive power, and without the guidance of any more "identifiable criteria.”
*205Under the "predominant interest” test of Heinig, such cases would be decided by a "balancing” of the interests of the city against those of the state. There was nothing novel in the adoption of that approach. Indeed, the "balancing” test has been adopted by the courts in many types of cases in which there are no "identifiable criteria” based upon "words” in a constitution and such a test is no more improper than the test of "fairness,” as adopted by courts for application in other cases involving an absence of such "identifiable criteria.” (See original dissent, 281 Or at 179.) Indeed, the majority states (at 182) that it "reaffirms” the Heinig test for application in cases involving matters of "structure and procedures” of local government.
Finally, the majority (at 186) is critical of the petition for rehearing in that it "debates only the general tenor of the opinion in this case,” rather than "the question actually at issue, the validity of the retirement and insurance” statutes. The concern of the cities, however, as expressed both in their petition for rehearing and on oral argument, goes to more than "the general tenor” of the previous majority opinion. It goes to the adoption of a rule of "legislative supremacy,” based upon the distinction between matters of "substance” and "procedures,” because of the many problems that would result for cities by the adoption of such a rule, for reasons previously stated, and because such a rule would strip cities of much of their present "local autonomy.”
Indeed, as previously stated, counsel for the cities conceded that the result in this case might be the same under the "predominant interest” test of Heinig. Upon the application of that test, however, the rationale would be that the interest of the state in police and fire protection is so great as to "predominate.” Such a decision would have support in respectable authority, as pointed out in my original dissent (281 Or at 189). Such a decision would not, however, as does the majority opinion in this case, provide a basis under *206which the legislature may, if it so chooses, enact a statute requiring cities to provide insurance policies and pension benefits to all city employees, and in amounts as provided by such a state statute.
There may be no magic in the words "predominant interest.” Some other descriptive words might be more appropriate in deciding disputes as to what are proper matters of "local * * * and municipal legislation.” In my opinion, however, the "predominant interest” test, as stated in a scholarly opinion by Justice O’Connell and as adopted by a unanimous court in Heinig, provides the best and most practical solution to this difficult problem. This court has found it possible, without problems as evidenced by any dissenting opinion, to apply that rule in a number of subsequent cases, as noted in my original dissent (281 Or at 164-165), which also discussed the rationale of that rule and pointed out (at 177-178 and 159-160) that the decision of this court in Heinighas been recognized by legal writers as a sound judicial decision and one consistent not only with decisions by the courts of other states, but with the recognized purpose of state Home Rule amendments as a "distribution of power by the people between two levels of government — state and local.”
In contrast, the rule as adopted by the majority, based upon a distinction between matters of "procedure” and "substance,” has been disclaimed by all of the parties to this case, including the attorney for the cities of Oregon, the attorney representing the employees of the cities and the attorney representing the State of Oregon. It is a rule without precedent and a rule that will create more problems than it will solve.
As noted in my previous dissenting opinion, most modern students in municipal affairs have urged the desirability of constitutional grants to cities of broad "home rule” powers.15 In some states, however, the *207attainment of that objective has been impeded by narrow and restrictive judicial interpretations of such constitutional provisions.16 For the past 40 years "home rule” in Oregon has not been subjected to this problem in view of unanimous decisions by this court which have liberally construed the Home Rule Amendments to the Oregon Constitution. It is thus particularly discouraging that the majority of this court has chosen to deliberately overrule that long line of unanimous decisions and to join those courts which have adopted a narrow and restrictive interpretation of Home Rule powers.
It may be that history alone will judge the wisdom of that decision, unless the voters of Oregon do as the voters of some other states have done in response to such decisions, and adopt a new Home Rule amendment with an even clearer grant of exclusive Home Rule powers as to all matters of local and municipal concern 17
For all of these reasons I dissent.
Howell, J., joins in this dissent.That distinction is as follows:
(1) As to matters involving the "structure and procedures of local government agencies,” cities would retain local autonomy, subject, however, to an important exception in any case in which a "state concern” is "justified by a need to safeguard the interests of persons or *188entities affected by the procedures of local government.” (281 Or at 156)
(2) As to matters involving "substantive social, economic or other regulatory objectives of the state,” a state statute will prevail over any local law whenever it appears that the legislature "clearly intended [it] to do so,” subject to an exception in the event that a state statute is "irreconcilable with the local community’s freedom to choose its own political form.” (281 Or at 156)
¿fee cases cited in previous dissenting opinion in this case, 281 Or 137, at 189, 576 P2d 1204 (1978).
Because on trial and on the original appeal all the parties had agreed that the case was controlled by the test of "predominant interest,” as previously stated in State ex rel Heinig v. Milwaukie et al, 231 Or 473, 373 P2d 680 (1962), and because the cities could not have foreseen the adoption of new rules based upon such a "procedure-substance” distinction, there had been no previous occasion to consider that legislative history.
These questions were as follows:
"1. Whether the distinction made by the majority opinion between matters involving 'the structure and procedures of local agencies’ and matters involving 'substantive social, economic or other regulatory objectives of the state’ is a distinction which is consistent or inconsistent with the terms and legislative history of the home rule amendments considering, among other things, SJR No. 3 of 1901 and 1903, the letter of September 6,1905, by the sponsors of the amendments, the changes then made in the provisions in the proposed amendments, any arguments by sponsors or opponents of those amendments, the contemporaneous history of the Oregon 'local option’ law; (see Hall v. Dunn, 52 Or 475, 486, 97 P 811 (1908)); and the subsequent amendment of Art XI, §2, in 1910, including arguments by sponsors and opponents of that amendment.
"2. What, if any, other reasons there may be in support of or opposition to the making of that same distinction, including what, if any, problems may result from the application of that distinction in future cases such as cases involving charter provisions or ordinances adopted by cities relating to land use planning. See for example ORS *190197.175 and 227.020 et seq., and Fifth Avenue Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978), decided June 20, 1978.” (Emphasis added)
As noted by the majority opinion (at 181), contentions made with reference to subsequently proposed constitutional amendments may not be direct evidence of the previous intent of the voters in 1906 in adopting the Home Rule amendments. Nevertheless, these "historical facts” are at least evidence of the common understanding in 1908 and 1910 as to the effect of the then recently adopted amendments.
See n.5, p 197.
The state’s brief recognized that in an early line of cases this court also held that with regard to "matters purely local” or "municipal,” the cities are autonomous, citing not only Branch v. Albee, 71 Or 188, 198, 202, 142 P 598 (1914), but also Kalich v. Knapp, 73 Or 558, 566, 142 P 594 (1914); Thurber v. McMinnville, 63 Or 410, 415, 128 P 43 (1912); and Pearce v. Roseburg, 77 Or 195, 208, 150 P 855 (1915), an opinion by McBride, J.
The state, in its review of the previous decisions by this court, also recognized that:
"* * * The rule that the state cannot effectively legislate as to matters purely municipal somehow survived the Rose formulation.”
citing In re Application of Boalt, 123 Or 1, 17, 260 P 1004 (1927), and City of Portland v. Welch, 154 Or 286, 296, 59 P2d 228 (1936), which expressly stated that this principle "has never been repudiated by this court.” Both of *199these cases were decided long before State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 630 (1967), which stated the "predominant interest” test.
7As previously noted, the attorney representing the State of Oregon conceded on oral argument that the application by this court of that exception would require this court to make "political” decisions.
See Pound, Mechanical Jurisprudence, 8 Col L Rev 604 (1908).
See Cook, "Substance and Procedure in the Conflict of Laws, 42 Yale LJ 333 (1932).
See Cook, supra, n.10.
It may be, as stated by the majority (at 184), that its distinction between matters of "procedures” and "substance” for the purposes of this case is in a different "legal area,” as compared to "such legal areas as conflicts of law or retroactivity.” Nevertheless, similar problems of "categories” arise from the use of such terms in all "legal areas.”
The financial impact upon cities of the new rule of "legislative supremacy,” as adopted by the majority, is discussed in more detail in my previous dissenting opinion. (See 271 Or at 191-198.)
See State ex rel Boe v. Straub, 282 Or 387, 578 P2d 1247 (1978).
See 281 Or at 160, 576 P2d 1204, 1217 (1978), and authorities cited therein.
See Vanlandingham, Constitutional Municipal Home Rule Since the AMA (NLC) Model, 17 Wm and Mary L Rev 1, 30 (1975).
See also, Mott, Strengthening Home Rule, 39 Nat’l Municipal Review 172 (1950); Richland, Courts Nullify Home Rule, 44 Nat’l Municipal Review 565 (1955); Sharp, Home Rule in Alaska: A Clash Between the Constitution and the Court, 3 UCLA-Alaska L Rev 1, 51 (1973); and Vanlandingham, Municipal Home Rule in the United States, 10 Wm and Mary L Rev 269, 281, 293 (1968).
See Mott, supra n. 16, in which it is noted (at 173) that:
"The people of California found it necessary to amend the state constitution eight times before they convinced the courts that they meant what they said when they gave the cities authority with 'respect to municipal affairs.’ * *