Chapter §10.3 CIVIL CASES—THE SHIFTING BALANCE OF POWER BETWEEN CITIES AND THE STATE

• Jurisdiction: Oregon

§10.3 CIVIL CASES—THE SHIFTING BALANCE OF POWER BETWEEN CITIES AND THE STATE

§10.3-1 Thirty Years of Pendulum Swings

It took fewer than three years for the first civil case about the home rule amendments to reach the Oregon Supreme Court. In Straw v. Harris, 54 Or 424, 103 P 777 (1909), one of the questions was whether the incorporation of the Port of Coos Bay, pursuant to legislative authorization, infringed upon the home rule rights of the cities contained within the port district by implicitly amending their charters. The court held that the legislature had not directly amended the cities' charters and that any indirect effect did not infringe on cities' constitutional authority. Straw, 54 Or at 434-35. The opinion also described the state's powers over cities in remarkably broad terms:

Municipalities are but mere departments or agencies of the state, charged with the performance of duties for and on its behalf, and subject always to its control. The state, therefore, regardless of any declarations in its Constitution to the contrary, may at any time revise, amend, or even repeal any or all of the charters within it, subject, of course, to vested rights and limitations otherwise provided by our fundamental laws. This, under the Constitution as it now stands, may be done by the Legislature through general laws only, and the same authority may be invoked by the people through the initiative by either general or special enactments; only the Legislature being inhibited from adopting the latter method.

Straw, 54 Or at 437.

COMMENT: Several things in this description are worth noting. First, the view of cities as "mere departments of the state, subject always to its control," is accurate only to the extent that the home rule amendments do not restrict the "state's" authority to act through the electorate by initiative. Nevertheless, the court reiterated that view of cities' status as recently as 1996, in Stovall v. State By & Through Oregon Dept. of Transp., 324 Or 92, 119, 922 P2d 646 (1996). Second, it clearly sets forth the proposition that Article XI, section 2, differentiates between the legislature's power to enact "general" laws affecting cities and their charters and its lack of power to adopt "special" laws. Finally, it suggests the possibility that the electorate may enact special laws by initiative—something that clearly makes sense when exercised by local voters for their own municipality, but would seem anomalous if it resulted in a statewide vote to adopt or amend the charter of an individual city.

The rule that general legislation will prevail over conflicting municipal charters and ordinances did not hold a majority of the court for long. In 1914, the court decided two cases that insulated local regulations from general statutes that purported to preempt local laws. Kalich v. Knapp, 73 Or 558, 142 P 594, rev'd on reh'g, 145 P 22 (1914), overruling recognized by Winters v. Bisaillon, 152 Or 578, 54 P2d 1169 (1936), arose from a personal injury action. At trial, as part of his proof that defendant had driven his vehicle negligently, plaintiff offered Portland's speed limit ordinances into evidence, but the court sustained defendant's objection on grounds that state law had expressly superseded local speed limits. On appeal from a defense verdict, the court took a much broader view of the city's immunity from state legislation than it had in the Straw case. It held that Article XI, section 2, removed from the legislature its authority over municipal traffic, so that the legislature "was impotent to nullify or amend the charter or ordinances of the city of Portland in a matter of acknowledged local concern such as the regulation of traffic over the streets of the metropolis." Kalich, 73 Or at 579. Kalich described the constitutional principles more by adjective and example than by logical principle, and it apparently assumed that it could divide governmental interests into distinct state and municipal realms.

The decision in Branch v. Albee, 71 Or 188, 142 P 598 (1914), overruling recognized by Tichner v. City of Portland, 101 Or 294, 200 P 466 (1921), involved state interference in local personnel matters. In Branch, the court struck down state legislation that created a board of police pension and relief for every city having more than 50,000 inhabitants (i.e., Portland) and prescribed certain retirement benefits that differed from those provided in Portland's charter. Noting that Article XI, section 2, states that the legislative assembly shall not amend any city charter, the court held that the "prohibition is absolute. It does not say that the legislative assembly shall not do these things by a special law; but that it shall not do them at all." Branch, 71 Or at 196 (emphasis in original). In the view of the Branch court, the purpose of the home rule amendments was to "free cities and towns from the control of the legislative assembly, and to confer upon them full power to legislate for themselves as to all local, municipal matters." Branch, 71 Or at 197-98. The state's pension law was "purely municipal" and had the effect of amending, by implication, the city's charter. Branch, 71 Or at 202. The court expressly disapproved of the language in Straw that approved state regulation of local matters as long as it was done by general law. Branch, 71 Or at 199.

The pendulum swung back toward state power in Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917), overruled in part on other grounds by State ex rel. Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962), in which the court held that the home rule amendments did not empower the port's voters to amend its charter. (The proposed charter amendments would have authorized the port to dredge a portion of the Columbia River east of its confluence with the Willamette, outside the area its legislatively granted charter had authorized.) The court found nothing in the history or text of the home rule amendments to support the proposition that any corporation other than a city or town could amend its own charter. The question then arose: How could the port acquire the additional authority when Article XI, section 2, prohibited the legislature from amending the charter of "any municipality"? To answer that question, the court addressed the scope of the legislature's power under Article XI, section 2. In an about-face from Kalich and Branch, it concluded that the home rule amendments did not deprive the legislature of the power to enact general laws affecting municipalities—regardless of whether the municipality was a port or a home rule city. In addition, as to a municipality other than a city or town, the legislature retained the power to act by special laws as well. Rose, 82 Or at 571.

In Rose, the court reviewed both the text and the legislative history of the home rule amendments in detail. The court cited Chief Justice McBride, who had played a key role in the drafting and passage of the home rule amendments before he joined the court, for the proposition that the sponsors of the home rule amendments "neither intended nor thought, nor even dreamed, that the amendments would prohibit the Legislature from enacting general laws relating to municipalities, cities and towns." Rose, 82 Or at 572. The court summarized the main points of its interpretation of the home rule amendments:

The Legislative Assembly cannot create any corporation by a special law; but corporations of all kinds may be formed under appropriate general laws passed by the Legislative Assembly. . . . Cities and towns can enact or amend their own charters, but no other corporate body can, without an enabling act, legislate power unto itself to legislate. The Legislative Assembly cannot enact a special measure which enacts, amends, or repeals a specified city or town charter, but it can enact a special law which amends the charter or act of incorporation of a municipality, other than a city or town. The Legislative Assembly can enact a general law affecting the charters or acts of incorporation of all cities or towns, or municipalities or districts.

Rose, 82 Or at 572-73. In addition, the court noted, the voters of a municipality may apply their referendum rights to any special or local legislation directed at the municipality...