Daily capital journal. (Salem, Oregon) 1903-1919, 1912-02-01

the regulating power of the people
Of county is restricted to taxa
ton and exemptions within their sew
eral counties" the proposed legisla-
ton is not limited IN its effect, to
Clackamas county. 1t is not local,
special or merely municipal. lnas-
much as, by its system of exemp-
tions, it would shift some of its bur-
den of state taxation to rest upon
other counties it affects more or
less powerfully the whole taxation
system of the state. 1t is beyond the
scope of Sec. / (a) Of Article ~ and
is not authorized by that section.
Another argument Of the petition
er is, that the words at the end of Sec
(a) of Article TX Subject to any
general law which may be hereafter
enacted" is condition subsequent
and that until a general law is
enacted the people of the several
counties have free rein to regulate
taxation and exemption therein. In
this connection he contends that
Sec l (a) Of Article w provides the
means and rule for carrying into eff
feet this provision Of Sec / (a) of
Article TX. In other words, as he
claims, they have . vested constitu-
tional right, under Sec 1 (a) of Arti-
Gle w to thus legislate If this po-
sition is true the words Subject to
any general law which may be here
after enacted" is plre tautology and
had as well been left out of the
amendment to Article TX. They are
worse than useless If the position of
the petitioner is correct on this
point, for If any subsequent legisla-
ton attempted to 'urtail the rights |
of municipality, as exercised in
that behalf, under Sec / (a) of Arti-
Gle w, they could we'll say that It
would be unconstitutional and viola
tive of the county'G power so con-
ferred The petitioner would avoid
this by saying that subsequent legis-
lation under the clause Subject to
any general law which may be here
after enacted at the end of Article
TX, would be effective because passed
In pursuance Of later utterance of
the people in the constitution, but If
the condition laid down in Sec 1 (a)
of Article TX, being a later express
sion of the peoples will, is to pre-
vail over Sec. (a) Of Article ~, It
has that effect Immediately 1t is as
much a restraint now as it will be
hereafter. A more reasonable view
harmonlzing both 'hese sections is
that Sec. 1 Ca) Of Article ~ is con-
fined to strictly local. municipal leg
islatlon and will not authorize legis-
lation which either directly or indi-
rectly affects the Interest and author
ity of the state a large; and further,
that until the people of the whole
state shall enact such legislation as
a general law, establishing a rule
governing all the counties In the ex-
ercise of the power to regulate taxa
tlon and exemption within their bor-
ders, nothing can be done by any
county under Sec. 1 (a) of Article
TX.
The situation presented then is
that this court is asked to apply
mandamus to an officer of a co-ordi-
nate branch of the government.
sworn, like the jrdges to support
the constitution of the state. and
compel him TO officially participate in
furthering a scheme in derogalon Of
that same constitution and to bur
den the people Of the county with
the expense of an election on legis.
iative measure which, in any view is
In excess OF their constitutional pow
ers. That mandamus is an extraor
dinary remedy not to be awarded
unless the right to the same is be-
yond question, is so well established
as to be automatic, rendering the
citation Of precedents unnecessary.
AZ best the authority to thus coerce
the secretary of state is not clear
and the writ ought to be dismissed.
For these reasons dissent from
the conclusion reached in the major
lty opinion.