Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-30

bNhbhNAb " 80"
versed
schubel '. OlcOtt, Original Jurisdiction
Decided January %, 1912.
G. A. schubel, plaintiff, v. Ben w.
olcott, defendant. Original jurisdic-
ton. Argued and submitted January
4, 1912. C. u. s. Wood, w. s. U'Ren,
%. s. ]. McAlllster civilians, Wood &
Llnthlcum, and Ersklne Wood on the
brIef) for plaintiff. A. NJ Crawford,
attorneys general. T. W, Mulkey q. II.
Van wlnkle, James w. Crawford on
brieD for defendant Bean, J. Per-
emptory writ ordered.
Bean, J. This Is a proceeding in
mandamus, instituted In this court un-
der the provisions Of Art. VII, section
2, OF the constitution Of oregon, adopt
ed November 8, 1910, for the purpose
Of requiring the defendant, as secre-
tary OF state, TO file an initiative petl-
ton for local law for the county of
Clackamas 10 exempt from taxation all
trades, labor, professions, business,
occupations, personal property and Inn
provements on, In and under land, and
to require that all taxes levied and
collected wlthip said clackamas
county shall be levied on and collected
from the assessed values Of land and
other resources. separate from the Inn
proyements thereon, and on and from
the assessed value Of public service
corporation franchises and rights Of
way.
The following facts are alleged
That said petition was prepared aud
circulated In compliance with an act
Of the legislature Of 1907, entitled, "An
act to provide for carrying into effect
the initiative and referendum powers
reserved by the people in section !
and section la Of article w Of the
constitution Of the state OF Oregon or
general, local, special and municipal
Legislation; TO regulate elections
hereunder; -" That the petition
was signed by six hundred and sew
enty-four legally qualified voters o
the county OF Clackamas, more thar
the percentage required for that pur
pose; that the same was presented 4
defendant for filing, who, awaiting The
opinion Of the attorney general rela
tive 10 filing, recelpted therefor, an,
thereafter refused to file such petl
tlon; that defendant, as secretary o
state, is the legal custodian Of all sucl
petitions as the one offered by plain
tlff for filing, and IN the official will
whom .he law provides that all inl
tlatlye and referendum petitions ap
pertaining to the state as a whole, o
district thereof, shall be filed; tha
by virtue OF said legislative act plain
tifi IL entitled to have the petlilor
filed according TO the terms theroo
10 the alternative writ Of mandamu
defendant answered In effect that IN
der the laws said petition should no
be filed
Il Is contended by the attorney gen
erh and counael for defendant tina
Art TX, section Ia, Of the constltuilo
Of Oregon Ia not selt-executlng; tha
counties are not municipalities With
the meaning Of Art ~, section In q
the constitution, and that the proceed
} ure indicated by section Sl7O ct ne,
l. O. L., does not apply to them.
The theory OF plaintiff Is that ar
W. section Ia, ooniers upon oountie
| the power to initiate county leglsla
} tl0n that the act Of 1907 provides IN
, machinery by which such s!ss.:;; s!.:s:.:; ma
B be exere..==;s,i; Juut Art, TX. section II
J gives TO counties the power 10 regr
g late taxation within their boundarle
. In order to consider the question
presented, We viii refer to the poi
. tons Of the amendments Of the organ
+ law OF this state, applicable theret
I The first, adopted by the people JIM
. 9, 1908, being Art ~, section I, rela
8 Ing to Legislative authority, style
( bill initiative and referendum. make
among Others, the following proyli
[ ions "rhe Legislative authroly OF n
s state shall be vested In a leglslati,
: assembly consisting Of a senate an
2 house Of representatives, but the pe,
e pie reserye to themselves power
= propose laws and amendments to n
I constitution and 10 euact or relect q
: oame at the polls independent Of u
leglslaiNe assembly and also rcser,
A power al their own option to apnro,
y or reject at the polls any act OF a
o legislative assembly The first pow,
h reserved by The peNpls Is the mitli
tive and not moro than eight p,
a cent Of the legal voters shall be r.
. Culred to propose any measure by su,
g petition, and every such petition sha
+ Include the lull tex, Of the measul
a 40 proposed Initiative petitions oha
2 BE- filed with the secretary Of sta
4 not less than four mon,hs before Il
h election At which they are to be vosl
, upon The second power Ia the rete