Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/35

 construction of such a bridge across the Willamette River, it being a navigable river, or for creating a bonded or other indebtedness for the construction of such a bridge.

The grant of a right without power to exercise it cannot be enforced. (W. U. T. Co. v. Penn. R. R. Co., 195 U. S. 540, 574.)

There is one important matter which has not yet come before the Oregon Supreme Court for decision. At the time of the adoption of the Oregon Constitution the necessity had become very apparent of limiting the amount of indebtedness that a city or town should contract. The Constitution or laws of many States places a limit on the indebtedness of a municipality, in some instances by limiting it to a percentage of the value of assessed property.

Section 5 of Article XI of the Constitution of Oregon is as follows:

"Acts of Legislative Assembly incorporating towns and cities shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit."

Probably, when provision is made under the amendments of 1906, allowing cities and towns to be incorporated, which are not now in existence, this clause will not apply to them, for the reason that they are not incorporated by an act of the Legislature.

But the question arises in cities and towns which were incorporated by special charters by the Legislature, and were in existence at the time of the adoption of the initiative amendments of 1906, whether this Section 5 of Article XI is repealed b}^ implication by the amendment of Section 2 of Article XI of the Constitution. It would seem, as a matter of law, that said Section 5 of Article XI is a limitation upon the power of a city to contract indebtedness where such a provision was in its charter at the time of the adoption of the initiative amendments of 1906, and that the people of such a city or town could not repeal this by initiative. The legal voters of the City of Portland appear to have acted on the assumption that