Kiernan v. City of Portland/Opinion of the Court

Following the incorporation into the Constitution of the state of Oregon in 1902 of the initiative and referendum amendment referred to in the case of Pacific States Teleph. & Teleg. Co. v. Oregon, just decided [223 U.S. 118, 56 L. ed. --, 32 Sup. Ct. Rep. 224], two other amendments to the Constitution were adopted by that method, designated, the first, as article 4, § 1a, and the second as article 11, § 2. The pertinent provisions of article 4, § 1a, and of article 11, § 2, are in the margin.

The legislature (Laws of 1907, chap. 226) authorized municipalities to provide by ordinance for carrying into effect the initiative and referendum powers reserved by the amendment to the Constitution just quoted. The city of Portland adopted ordinance No. 16,311, providing the methods by which the initiative and referendum powers of the city should be exerted. We quote in the margin from the opinion of the supreme court of Oregon [57 Or. 457, 37 L.R.A.(N.S.) 339, 111 Pac. 379] in this case the facts concerning the action taken by the municipality leading up to the adoption of an ordinance which forms the subject-matter of this controversy.

The ordinance in question was entitled, 'To Amend Article 6 of Chapter 3 of the Charter of the City of Portland. . . by Inserting a Section in Said Article 6 of Chapter 3 after Section 118, and before Section 119 Thereof, Which Shall Be Designated in the Charter as Section One Hundred and Eighteen and a Half (118 1/2) of Article 6 of Chapter 3.' Omitting details, the amendment conferred upon the council of the city authority to issue and dispose of bonds of the city not exceeding two millions of dollars, to be sold, as occasion might require, to enable the executive board of the city of Portland to construct, in the name of the city of Portland, a bridge with proper approaches and terminals 'across the Willamette river in said city, from Broadway street at or near its intersection with Larrabee street, on the east side of said river. . . .' The amendment gave power to the executive board in building the authorized bridge, to 'erect and construct. . . subject to such regulations as may be imposed by the United States, piers, abutments, and other necessary supports in the bed of the Willamette river for the foundation of such bridge.' Again, as stated by the supreme court of Oregon, pursuant to the submission to voters, as above stated, 'on June 7th the election was held, at which there were cast for the amendment 10,087 votes, and against it 6,061, and on June 21st the mayor proclaimed that the amendment had been adopted.' Following the adoption of the ordinance, on October 27, 1909, the council passed an ordinance (No. 20,208), authorizing the issue and sale of two hundred anl fifty thousand dollars of the bonds provided for in the amendment to the charter for the purpose of obtaining funds to commence the construction of the bridge. On the promulgation of this ordinance the present suit was begun by the plaintiff in error in a state court, with the object of enjoining the sale of the bonds, and preventing the carrying out of the amendment of the city charter which had been adopted in pursuance of the vote as above stated. The right to stand in judgment for this purpose was based upon the interest of the complainant as a citizen and taxpayer. The complaint stated a multitude of grounds, assailing in every conceivable form the power to authorize the voters of the municipality to resort to the initiative for the purpose of amending the charter; and the repugnancy of the delegation of that power and of the charter amendment adopted in pursuance of it to many provisions of the state Constitution and the Constitution of the United States. The regularity of the proceedings taken to adopt the amendment was also elaborately assailed. The city answered. The case was submitted to the trial court on bill and answer, and resulted in the dismissal of the bill. The case was taken to the supreme court of the state, where that judgment was affirmed. The court delivered two opinions, one on the first hearing and the other on a rehearing. The first carefully disposed of the many objections made to the power under the state Constitution to confer on the voters of the municipality the authority to amend the charter, and to the regularity of the proceedings leading up to the adoption of the amendment, and to the proceedings culminating in the adoption of the assailed ordinance. The various contentions concerning these subjects, based upon the Constitution of the United States, were also disposed of in the course of the opinion. We have not examined the petition for the rehearing, as it was omitted in printing the record, but it is inferable, from the elaborate opinion which was delivered on the rehearing, that the main grounds urged for a rehearing were based on the absence of power in a state to adopt the methods of initiative and referendum, and the effect of doing so on the continued existence of a government republican in form. We think this is the reasonable inference, as those subjects were elaborately reviewed by the court on the rehearing.

The errors assigned are numerous and involve assumed state and Federal questions so interwoven as to cause it to be difficult to separate them or state with precision the questions of a Federal nature which they embrace. We need not, however, undertake to do so, as all the questions which it is deemed arise for consideration are in the argument reduced to eight propositions, which are in the margin. Coming to test these propositions, we think on their face it is apparent they are disposed of by either or both of one or two considerations,-(a) the necessary operation and effect of the opinion in Pacific States Teleph. & Teleg. Co. v. Oregon, just announced, or (b) the conclusive effect on questions of a local and state character resulting from the action of the court below, and hence that none of them have a foundation sufficiently substantial to support the exertion of jurisdiction.

In saying this we are not unmindful that one of the assignments is based upon the contention that, as the Willamette river was navigable, there was no power to build a bridge over it without the consent of the government of the United States. But in the first place, we are unable to perceive upon what theory the complainant possessed the right to raise such a question, and in the second place, the ordinance which empowered the bridge expressly exacted that it should be built in conformity to the requirements of the authorities of the United States. It is to be observed that both sides refer to and insert in their printed arguments an act of the legislature of Oregon passed since this writ of error was sued out. Nothing could be more complete and comprehensive in the manifestation of a purpose, so far as there was power to do so, to cure any and every possible defect. Its title is an indication of its purpose and scope:

'An act to authorize the construction of a bridge known as the Broadway bridge, to be built across the Willamette river in the city of Portland, in the state of Oregon, and to cure any errors or irregularities in the passage of the amendment to the charter of the city of Portland, authorizing such bridge, and to validate and confirm the bonds issued or to be issued for the construction therefor.'

We have not deemed it necessary to take into consideration the act of Congress (36 Stat. at L. chap. 253, p. 1348) expressly approving the authority granted to build the bridge, so far as the United States was concerned, and ratifying any infirmity which might otherwise have arisen in that regard.

It follows that the writ of error must be, and it is, dismissed for want of jurisdiction.