Pacific states Telephone Co. v. Oregon, ante, p.
223 U. S. 118,
followed to the effect that the determination of whether the
government of a state is republican in form within the meaning of §
4 of Art. IV of the Constitution is a political question within the
jurisdiction of Congress and over which the courts have no
jurisdiction.
Where the record does not contain the petition for rehearing,
but the opinion of the state court denying it discusses at length
the federal question relied on here, this Court will infer that the
subject was included in the petition.
Quaere whether the plaintiff in a taxpayer's suit
against a city to enjoin the issuing of bonds to build a bridge
over navigable waters on the ground of unconstitutionality of the
ordinance can raise the question of lack of consent of the
government of the United States.
Page 223 U. S. 152
The facts, which involve the constitutionality under § 4 of Art.
IV of the federal Constitution of the initiative and referendum
provision of the Constitution of the Oregon, are stated in the
opinion.
Page 223 U. S. 159
MR. CHIEF JUSTICE WHITE delivered the 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 Telephone &
Telegraph Co. v. Oregon, just decided, two other amendments to
the constitution were adopted by that method, designated, the
first, as Art. IV, § 1a, and the second as Art. XI, § 2. The
pertinent provisions of Art. IV, § 1a, and of Art. XI, § 2, are in
the margin. [
Footnote 1]
Page 223 U. S. 160
The legislature (Feb. 25, 1907, Laws of 1907, c. 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 [
Footnote 2] from the
opinion of the
Page 223 U. S. 161
Supreme Court of Oregon 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 VI of Chapter 3 of the Charter of the City of
Portland . . . by Inserting a Section in Said Article VI 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 VI 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
Page 223 U. S. 162
(No. 20,208), authorizing the issue and sale of two hundred and
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
Page 223 U. S. 163
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. [
Footnote 3] Coming to
test these propositions, we think on their face it is apparent they
are disposed of by either or
Page 223 U. S. 164
both of one or two considerations -- (a) the necessary operation
and effect of the opinion in
Pacific States Telephone &
Telegraph 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
Page 223 U. S. 165
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
Page 223 U. S. 166
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. c. 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.
[
Footnote 1]
"Article IV, § 1a. . . . The initiative and referendum powers
reserved to the people by this Constitution are hereby further
reserved to the legal voters of every municipality and district, as
to all local, special, and municipal legislation, of every
character, in or for their respective municipalities and districts.
The manner of exercising said powers shall be prescribed by general
laws, except that cities and towns may provide for the manner of
exercising the initiative and referendum powers as to their
municipal legislation. Not more than ten percent of the legal
voters may be required to order the referendum, nor more than
fifteen percent to propose any measure by the initiative, in any
city or town."
"Article XI, § 2. Corporations may be formed under general laws,
but shall not be created by the legislative assembly by special
laws. The legislative assembly shall not enact, amend, or repeal
any character or act of incorporation for any municipality, city,
or town. The legal voters of every city and town are hereby granted
power to enact and amend their municipal charter, subject to the
Constitution and criminal laws of the State of Oregon."
1 Lord's Oregon Laws, pp. 91, 118.
[
Footnote 2]
"On April 7, 1908, an initiative petition, containing the
required number of signatures, was filed with the council,
requesting the city to build a bridge across the Willamette River,
from Broadway Street in East Portland to the west side of the
river, whereupon the City of Portland took steps to obtain plans
and specifications for building said bridge. On May 8, 1908, the
auditor notified the mayor of the filing of said petition, and
requested him to comply with his duties under the charter in regard
thereto. On October 20, 1908, the petition, containing a sufficient
number of signatures, was presented to the council at a legally
called meeting, and at said date the council requested the opinion
of the city attorney as to the validity thereof. On October 27,
1908, the attorney filed his opinion, affirming its validity, and
thereafter, on November 11, 1908, the council passed an ordinance
(No. 18,531) submitting to a vote of the people an amendment to the
city charter, providing for the construction of said bridge, and
for issuing bonds in the sum of not to exceed $2,000,000 to pay for
the same, designating said proposed amendment as § 118 1/2 of Art.
VI of c. 3, and on November 25, 1908, the council passed a
resolution, submitting the proposed amendment to a vote of the
people at a special election on April 23, 1909. Thereafter, on
February 17, 1909, the council passed an ordinance (No. 18,976),
amending ordinance No. 18,531, so as to fix the date of the
election on May 8, 1909, instead of April 23, as originally
specified. On March 31, 1909, the council passed an ordinance
(No.19, 174) expressly repealing ordinance No. 18,531 as amended,
and no special election was held under any ordinance or resolution.
On March 31, 1909, the same date as that of the repealing
ordinance, a resolution was passed, authorizing the submission of
the charter amendment to a vote of the people at the general
election to be held June 7, 1909. More than twenty days prior to
the election, the auditor of the city published the proposed
charter amendment, with the ballot in full, in the city's official
newspaper, as required by law, and also sent out and distributed
copies of said amendment to the voters of the city."
[
Footnote 3]
"1. Can the State of Oregon legally adopt the initiative and
referendum amendment to its Constitution, Art. IV, § 1, attempted
to be adopted June 2, 1902?"
"2. Can the electors of the State of Oregon legally adopt the
further initiative and referendum amendments to its Constitution,
Art. IV, § 1a, and Art. XI, § 2, attempted to be adopted June 4,
1906, by virtue of said Art. IV, § 1?"
"3. Can the electors of the City of Portland legally adopt the
pretended section 118 1/2 of the charter of the City of Portland,
which is printed above in this brief, by virtue of the
above-mentioned initiative and referendum amendments to the Oregon
Constitution?"
"4. Can the City of Portland legally issue bonds, tax plaintiff
in error, and build said Broadway bridge across the navigable
Willamette River owned by the State of Oregon, by virtue of the
said § 118 1/2 of the charter, attempted to be adopted at said city
election under said system of government?"
"5. The Supreme Court of Oregon committed error in deciding that
the pretended § 118 1/2 is invalid insofar as it attempts to impose
the care and maintenance of the Broadway bridge upon Multnomah
County, and then holding that said clause is severable from the
rest of the section, and the remainder of the section is valid, as
thereby the Supreme Court of Oregon attempted to legislate and
authorize the taxation of plaintiff in error, and deprived him of
the law of the land."
"6. The Supreme Court of Oregon committed error in deciding that
the granting of a franchise and building a bridge across the
Willamette River, owned by the State of Oregon and controlled
jointly by the United States of America and the State of Oregon, is
a municipal purpose instead of a state purpose, and can be granted
by the electors of the City of Portland in amending the charter of
the City of Portland under the said 'Oregon system,' as said
decision denied to plaintiff in error the law of the land."
"7. The Supreme Court of Oregon committed error in deciding that
the council and electors of the City of Portland can enact a
charter amendment to the charter of the City of Portland, under
said 'Oregon system,' by which the city could issue bonds in a
large amount and tax the property of plaintiff in error for the
payment of the bonds as a municipal purpose, when it is a state
purpose, and it is not within the constitutional power of the
people of the State of Oregon to delegate the power to tax without
limitation, and exercise state powers to the electors of a
municipality, and the attempt to do so is in violation of section 1
of the Fourteenth Amendment to the Constitution of the United
States; also in violation of sections 3 and 4 of Art. IV of the
Constitution of the United States of America, as such grant of
power would be for the State of Oregon to commit state suicide, and
dissolve the State of Oregon into as many smaller states as there
are municipalities within the state, and to change the republican
government of the State of Oregon into a confederacy of cities
within the State of Oregon, and tends to destroy our system of
government created and guaranteed by the Constitution of the United
States of America."
"8. The Supreme Court of Oregon erred in holding and deciding
that plaintiff, a citizen of the United States, must conform his
conduct and hold his property in state matters and tax matters, to
a rule of conduct or law enacted by mere numbers of people and
assemblages of people within the borders of a municipality, because
it is not in accordance with due process of law and is in violation
of the law of the land to require any citizen of the United States
to conform his conduct, and hold his property in state matters and
in tax matters, to a rule of conduct or law, enacted directly by
mere numbers of people or assemblages of people within a municipal
corporation, and is contrary to section 1 of the Fourteenth
Amendment to the Constitution of the United States of America,
sections 3 and 4 of Art. IV of the Constitution of the United
States of America, and also is contrary to the implied provisions
of the Constitution of the United States that government of the
several states shall be representative in form, and that the
several states shall create and maintain representative legislative
assemblies, and that the citizens of the United States shall be
protected in their rights of enjoyment of life, liberty, and
property by the law of the land, which is an inherent attribute of
citizenship of the United States, which no state or its people may
impair."