Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-15


of Portland.
Defendants demur to the complaint
for the reason that it does not state
facts sufficient to constitute a cause
OF action. relying upon the unconsti-
tutionality of the solid legislative act
of 1911,
Eakin, c. j.: On June 4. 1906, Sec.
2 Of Art. XI of the constitution was
amended to read. Corporations may
be formed under general laws, but
shall not be created by the legislative
assembly by special laws. The legis-
lative assembly shall not enact,
amend, or repeal any charter or act
of incorporation for any municipal
ity, city, or town. The legal voters
of every city and town are hereby
granted power to enact and amend
their municipal charter, subject to
the constitution and criminal laws of
the state of Oregon" Prior to this
amendment it was in the power of
the legislature, by special act, to
amend the charter of the port as it
saw tit as to the number of commits
sioners, their term of office, and the
time and manner of their election,
but such changes could have been
accomplished only by legislative act.
The legislature could not have ap-
pointed commissioners at a Joint
session of the two houses except to
fill vacancies, which authority it
still has as it is the appointing pow
raD,a1 ~, abn
has been passed by the legislature,
fixing the duration of the term of
office and appointing new commits
sioners, or authorizing the governor
to appoint them, it's effect would have
been to amend or repeal the former
provisions of the charter in those
particulars, as fully as Sec of the
charter of 1891 was amended by the
act of 1899 or that amendment again
amended in Secs. % and 2S in the
charter of 1901, and again in 1903.
But by the amendment of Sec. 2, Art.
/ XI of the constitution, the power to
amend or repeal the charter was taxi
en- from the legislature. The plain
titf's seek to avoid the effect of that
/ amendment, contending that the act
of 1911, referred to, is a general law
and, therefore, not within the inhibi-
tion of the constitutional amend
ment; that the clause of Sec. there
Of above quoted, included all ports
which contain a population of over
100000 as shown by the last federal
census, makes it general as to all
ports that are now are hereafter may
come within that classification. On
the other hand defendants urge, ~
that such a classification confines it's
application, and was intended to an
ply, to the Port of Portland, and (2)
that the classification attempted
threby is arbitrary and not based on
real distinction. and therefore is
special, and with this latter view we
agree.
The provision of the act that every
municipal mort which con-
tains within its boundaries a pouula-
tion of more than 100000 as shown
by the last federal census" refers to
the last census before the enactment
1t means present condition as fix
ing the class that may come within
the law and cannot be construed to
include ports thereafter created or
that may subsequently acquire that
population. 1t includes only such
ports as at that time had the neces-
sary population of which there was
but one-the Port of Portland.
This question was well considered
in Ladd V. Holmes, 40 Or. 167, 173 in
which Mr.. Justice Wolverton saws:
"a statute. however, which is plainly
intended to affect a particular person
or thing. or to become onerative in a
particular nlace or locality and looks
to no broader or enlarged aDplica-
ton. may be aDtly characterized as
sneciaI and local and falls within the
inhibition 1t may be stat
ed as positive rule of general an
plication that all acts or parts of
acts attemnting to create classitica-
ton of cities by population which
are confined in their oneration to a
state of facts existing at the date OF
their adoption or any particular time,
or which by any device or subter-
fuge exclude other cities from ever
coming within their purview or
based upon any classification which
in relation to the subject concerned
is purely illusory, or founded upon
unreasonable dlstlncIlons,
are special and local. The opinion
states the rule very clearly and we
believe correctly. Counsel for plain
tiff suggest that, so far as the opinion
holds that the reference therein tc
the last federal census in the pres
ent tense would mean unmistakly
the census of 1900. is clearly dictum
hut we do not so consider it. The
question in that case was whether
the classification "as shown by the
last state or federal census was
comprehensive enough to make it
general law. and the opinion first as
certains the rule for the purpose o
applying it to the facts in the cast
before it But il considered as only
dictum vet we find that it is a cor
rect statement of the law and is fully
supported by the argument of thu
opinion and authorities cited, and Il
directly applicable in this case. TIT
classification of the statute here con
sidered confines its operation to
state of facts existing at the date o
its adoption and excludes all othe
norts from ever coming within 1t
purview and is, therefore, special.
Furthermore, the classification
must be upon some real and actua
distinction as a justification for II
We conceive that no distinction ex
lists for a different rule in ports o
100000 population than for thos
with a lesser population as to tn
limitation of the term of office o
time or manner of election. No rea
son is named in the act, nor is an
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