State v. Kelsey

Mr. Justice Moore

delivered the opinion of the court.

It will be remembered that ordinance No. 64, prescribing the manner of exercising the initiative power in the City of Gold Hill, required the recorder at every election to cause to be printed in consecutive order on the official ballot the title, of all measures to be voted upon, the affirmative of the first measure to be designated by the number “400” and the negative by “401”; that, not less than 10 days before any regular or special election at which any proposed charter amendment was to be submitted to the people, that officer was, by the enactment referred to, commanded to cause to be printed in some newspaper a full and correct copy of the title and text of the measure, and also to cause copies of the proposed charter to be posted, for the same length of time, in three public places in Gold Hill. It will also be recalled that the numbers placed on the official ballot were “10” and *76 “11”; that notice of the election was published on November 11 and 18, 1911, and as the vote was taken on the 20th of that month only nine days’ notice was given; and that copies of the proposed charter were never posted.

It is maintained by defendant’s counsel that the resolution of November 6,1911, pursuant to which the notices referred to were given, was adopted and approved with all the formalities required for the enactment of an ordinance; that it had enacting and emergency clauses and was approved by the mayor; that it was in substance an ordinance, though denominated a resolution, and to the extent specified it impliedly amended ordinance No. 64, and, such being the case, an error was committed in rendering the judgment herein.

An examination of the provisions of the charter of the City of Gold Hill, as amended April 13, 1907, and which were in force November 6, 1911, when the resolution of the latter date was adopted, shows that the authority of the councilmen to enact ordinances or resolutions was general and granted as follows: “The board shall have power to pass all resolutions and ordinances necessary to enable it to carry out the provisions of this charter”: Section 16. “The enacting clause of every ordinance or resolution shall be ‘The people of the City of Gold Hill do ordain or resolve,’ and every ordinance and resolution to be valid must receive the affirmative vote of three members of the board of councilmen, the president being allowed to vote on all questions, and when the roll is called the name and vote of each member must be entered in the journal”: Section 17. These are the only provisions found in the charter adverted to relating to matters inherently legislative in character. The only provisions in the charter respecting notice applies to the *77 general election to be held annually on the first Monday in April and are as follows:

“The board of councilmen shall at their meeting on the first Monday in March of each year order the recorder to post three conspicuous notices in three conspicuous places in said city calling for a primary election by the people to be held at least eighteen days prior to the date of the following election. * * At the time of posting the notices aforesaid the recorder shall also post notices in three conspicuous .places in said city announcing that there will be an annual election held at the place therein designated. * * ” Section 7.

1. The enacting clause of the resolution of November 6, 1911, is as follows: “Resolved that the people of the City of Gold Hill,” etc. It will be noticed that the clause does not- exactly coincide with the form prescribed, but there is no difference in the meaning of the terms employed. The court’s finding is to the effect that at the meeting of November 6, 1911, all the members of the board of councilmen were present and that the resolution was passed unanimously. An emergency was declared in the resolution to exist in consequence of the necessity of securing an adequate supply of water, and that the legislation would be in full force and effect after its approval by the mayor, which sanction was given by that officer.

It does not appear from the record before us that any rules of order had been adopted by the board of councilmen respecting the manner of entering upon the journal the mode pursued in the enactment of legislative matters. The court found, however, that, when the amendments proposed by the citizens’ committee had been approved and incorporated in the charter, the act was read there several times and ratified by the board. It is not shown that an ordinance or a resolution was required to be published before it could go into effect.

*78 2. Where a municipal charter permits the decision of a matter to councilmen and does not express the mode to he pursued, the determination may he evidenced by a resolution and need not be manifested by an ordinance: Dillon, Mun. Corp. (5 ed.), § 572; Clinton v. Portland, 26 Or. 410 ( 38 Pac. 407 ).

3. The charter being silent with respect to the matter of municipal legislation, the manner of exercising the initiative and referendum powers, when not violative of the state Constitution, could as well have been prescribed by a resolution as by an ordinance: McQuillin, Mun. Ordinances, § 2, note 8.

4. The resolution of November 6, 1911, was in substance and effect an ordinance or regulation, and the name given to it by the councilmen was immaterial and did not render the enactment void: Dillon, Mun. Corp’. (5 ed.), § 571; Municipality No. 1 v. Cutting, 4 La. Ann. 335 .

5. Though repeals by implication are not favored, the resolution in question impliedly changed as much of the ordinance as was in conflict therewith.

6. The notice published, pursuant to the resolution, informed the legal voters of Grold Hill of the time, place and object of the special election which prerequisites are essential in elections of that kind, and in these particulars the notice was sufficient.

7. By requiring the notice to be published on the 11th and 18th of November, 1911, when the election was to be held on the 20th of that month, the board knew that only nine' days’ possible publication could be given, but such legislative body had as much authority to prescribe that number of days in the resolution as they had to designate a different number in the ordinance. The notice required should be reasonable and that given answered such precept.

*79 8. The resolution made no reference to the number to be placed on the official ballot, while the ordinance particularly specified the numerals to be used. The ballot title employed did not comply therewith, but this failure evidently did not mislead any voter, for the phrases, “For the proposed new charter,” and “Against the proposed new charter,” were printed in bold type, calling particular attention to the choice to be expressed by the elector, regardless of the number employed, and this was sufficient: Kiernan v. Portland, 57 Or. 454, 462 ( 111 Pac. 379 , 112 Pac. 402 , 37 L. R. A. (N. S.) 339).

9. The charter of April 13, 1907, limited the amount of indebtedness that might be incurred by the board of councilmen to $1,500. By calling an election of the “property owners” of the city to vote thereon, a greater indebtedness might be sanctioned, provided that all sums in excess of $1,500 per annum should be evidenced by municipal bonds. The charter adopted November 20, 1911, changed the phrase “property owners” to “legal voters of the city” who could in the same manner authorize the issuance of municipal bonds in the sum of $25,000. As the initiative power is reserved “to the legal voters of every municipality” as to all municipal legislation of every character in or for their respective municipalities (Article IV, Section la of the Constitution), the alteration in the new charter recognized the right of franchise of every voter unfettered by a property qualification.

Believing that the amended charter was enacted pursuant to proper and adequate notice, the judgment is reversed and one will be entered dismissing the action. Reversed: Action Dismissed, Mr. Chief Justice McBride and Mr. Justice Ramsey concur. Mr. Justice Burnett dissents.