Hawley v. Anderson , 99 Or. 191 ( 1920 )

BENSON, J.

There is but one serious question presented by the defendants upon the demurrer, and that is raised by their contention that the election is invalid because it calls for a bond issue largely in excess of 2 per cent of the assessed valuation of the property in the county, and therefore violates Section 19 of Chapter 103 of the Laws of 1913, which is the only statute providing the means whereby a county may hold an election for the issue of bonds for the construction of roads. Plaintiff’s reply to this contention is that the limitation expressed in Section 19 of the act referred to has been removed by the latest amendment of Section 10, Article XI, of the Constitution, which became effective some months before the inception of the proceedings now under consideration. This section of the Constitution, as originally adopted, read thus:

“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county at the time this Constitution takes effect shall be disregarded in estimating the sum to which such county is limited.”

In 1911, when the crusade for better highways had become vigorous throughout the state, the people, by an initiative measure, amended this section, to read as follows:

“No county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion, or to build permanent roads within the county, but debts for permanent roads shall be incurred only on approval of a majority of those voting on the question.”

Shortly after this amendment became effective, an election was held in Jackson County, wherein a majority of the legal voters determined upon the issue of bonds to the amount of $1,500,000, for the construction of permanent roads, and suit was commenced to enjoin the issue of such bonds in the case of Andrews v. Neil, 61 Or. 471 (120 Pac. 383, 123 Pac. 32). In that case it was held that the constitutional amendment was not self-executing, so far as it enlarged the debt-creating power of the county, and that there could be no election for the issue of bonds thereunder without prior legislation- providing the means or procedure whereby the voters of the county might register their wishes in the matter. Following this decision, the legislature enacted Chapter 103, General Laws of Oregon for 1913, which is the act under which the defendants proceeded in the election which is here involved. Prior to the passage of this act, at the general election in 1912, the people, by initiative action, again amended Section 10, Article XI, of the Constitution to read thus:

“No county shall create any debts or liabilities which shall singly or in the aggregate with previous debts or liabilities exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion or to build and maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, and shall not either singly or in the aggregate with previous debts and liabilities incurred for that purpose exceed two per cent of the assessed valuation of all the property in the county”: See Laws 1913, p. 9.

This 2 per cent limitation was reiterated in Section 19 of the act of 1913, supra.

Again, in 1919, under the influence of a vigorous campaign for good roads, this section of the Constitution was amended so that the concluding clause reads as follows:

“And debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, and shall not either singly or in the aggregate, with previous debts and liabilities incurred for that purpose, exceed six per cent of the assessed valuation of all the property in the county”: Or. L., Sp. Sess. 1920, p. 5.

1, 2. Keeping in mind the ruling of this court in Andrews v. Neil, 61 Or. 471 (120 Pac. 383, 123 Pac. 32), that this section of the Constitution is not self-executing as regards its enlargement of the debt-creating power of counties, it seems to be clearly established by the authorities that Section 19 of the act of 1913, limiting such indebtedness to 2 per cent of the assessed valuation of the county, is still in full force and effect. It is fundamental that the powers of the legislative department of a state are absolute, except as limited by the Constitution: 12 C. J. 804. In other words, the Constitution says to the legislative department, You may provide the machinery whereby counties may issue bonds, incurring an indebtedness for permanent roads, but your machinery is ineffective if it undertakes to authorize such a debt in excess of 6 per cent of the assessed value of the property in the county. This leaves the legislature with full power to limit the county to a still smaller indebtedness, as it has done in the act of 1913.

3. This conclusion is not affected by the fact that the statute was already in existence when the constitutional amendment was adopted. It appears to be the uniform holding of the courts that a constitutional provision which is not self-executing does not affect existing legislation until the enactment of legislation putting it into effect: 12 C. J. 739; 6 R. C. L. 34; Hall v. Dunn, 52 Or. 475 (97 Pac. 811, 25 L. R. A. (N. S.) 193); State ex rel. v. Portland Ry., L. & P. Co., 56 Or 32 (107 Pac. 958).

4. It might be (although it is not necessary to decide) that, if the act of 1913 were differently framed, the election in this case could be regarded as valid up to the limit of 2 per cent of the assessed valuation of the county, but, since the statute requires the order submitting the question to a vote of the people to specify the roads which are to be constructed or repaired, and the minimum amount to be expended upon each of them, it will be readily seen that a bond issue of a much smaller amount would be an entirely different question from that upon which the people have voted. It follows that the demurrer must be sustained, and the proceeding dismissed.

Demurrer Sustained. Proceedings Dismissed.

Rehearing Denied.

Burnett, Bennett and Bean, JJ., concur.