Campbell v. City of Eugene , 116 Or. 264 ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] IN BANC.

This is a suit to enjoin the officers of the City of Eugene from issuing and selling certain municipal bonds authorized at a special election held in the city July 2, 1924, for the purpose of constructing an auditorium within the limits of the city. The trial court granted the injunction and the defendants appeal. The proceedings necessary to be referred to for an understanding of the case were substantially as follows:

The City of Eugene is a municipal corporation of more than 2,000 people organized under an act of the Legislative Assembly of the State of Oregon of February, 1905, and various acts amendatory and supplemental thereto. The appellants Parks and Gilmore are respectively the mayor and recorder of the City of Eugene; the appellants Walker, Washburne, McAlister, Williamson, Monroe, Simmons, Large and Wallace are the members of the common council of the City of Eugene. The appellants Hamilton, Gerlinger, Colt, McKinney, Gordon, Woodson, Vawter, Gilbert, Fiske and Jackson are the regents of the University of Oregon.

On May 1, 1924, the common council of the City of Eugene, acting under Section 4109, Or. L., passed a resolution proposing a charter amendment to the municipal charter of the City of Eugene. The resolution was filed in the office of the city recorder of the City of Eugene on that day and provided that the election upon the proposed charter amendment to the City of Eugene should be held on the second day of July, 1924. The amendment authorized and empowered the City of Eugene, Oregon, to issue and sell the negotiable bonds of the city in the sum of $500,000, the proceeds therefrom to be used in the construction and equipment of a municipal public auditorium in the city.

On June 11, 1924, the common council of the City of Eugene passed an ordinance ordering a special election to be held in the city on the second day of July, 1924, for the purpose of the electors of the said City of Eugene to vote upon the proposed charter amendment, which said ordinance designated the polling places, named the clerks and judges of said election, and provided that the polls of said election should be open from 8 o'clock in the morning until 8 o'clock in the evening on said day, which ordinance was approved by the mayor of the city on the eleventh day of June, 1923. The election was held on the second day of July, 1924. On the seventh day of July, 1924, the common council assembled and canvassed the votes cast upon said measure, and found that 1,112 were in the affirmative, or in favor of the said proposed charter amendment, and 1,082 votes in the negative or against the measure, and that the said measure had carried by a majority of 30 votes, and duly proclaimed the result of said election and that the said charter amendment had been adopted by a majority of the electors voting at said election. On the fourteenth day of July, 1924, the common council of the City of Eugene passed an ordinance, numbered 4293, authorizing the issuance and sale of the bonds authorized by said charter amendment so adopted by the electors. Thereafter, on the tenth day of August, 1924, after this suit had been commenced by the filing of an original complaint and the service of summons and complaint upon the appellants, the respondent served and filed an amended complaint. On the fifteenth day of August, 1924, the defendants filed a joint demurrer against said amended complaint, alleging as grounds of demurrer that the complaint does not state facts sufficient to constitute a cause of suit against said defendants, either jointly or severally. The trial court overruled the demurrer. Thereupon the defendants filed their joint answer.

The respondent filed a demurrer to the answer of the defendants, alleging as grounds of demurrer that the said answer does not state facts sufficient to constitute a defense on behalf of the City of Eugene, and the officers of the said city, and for the further reason that the admitted facts show that the plaintiff was entitled to the relief prayed for. On the thirty-first day of December, 1924, the court entered an order sustaining the said demurrer to the answer. Thereupon the appellants on the sixth day of January, 1925, elected to stand upon their answer and declined to plead further, and a decree was entered in favor of the respondent and against the appellant, as prayed for in the complaint.

The resolution of the council proposing an amendment of the city charter, the ordinance calling for a special election, the ordinance authorizing the issuance of the bonds, and all of the proceedings pertaining to the special election, the returns and the canvassing of the votes cast upon the measure and the proclamation of the result of the election, are contained in the pleadings herein.

REVERSED AND DECREE ENTERED. The question involved in the assignments of error centers around the validity, or invalidity, of the special election amending the city charter and authorizing the issuance of the municipal bonds. The position of plaintiff is that the special election was not authorized by law in that the ordinance calling the same, passed June 11, 1924, could not take effect prior to thirty days after its enactment and, therefore, was not in effect when the election was held on July 2, 1924.

The case hinges upon this point.

It is conceded that prior to the calling of the special election, the City of Eugene had never enacted a general ordinance or law relative to the calling of special elections except by charter amendments in 1914, which provides that election upon initiative measures shall be governed by the general laws and Constitution of the State of Oregon. The legislature in 1907 enacted a statute providing inter alia for carrying into effect the initiative and referendum power reserved by the people in Section 1a, of Article IV and Section 2 of Article XI of the Constitution on general, local, special and municipal legislation. Section 4109, Or. L., being a part of the act of 1907, and under which the council of the City of Eugene proceeded, reads in part as follows:

"Amendments to any city charter may be proposed and submitted to the people by the city council, with or without an initiative petition, but the same shall be filed with the city clerk for submission not less than sixty days before the election at which they are to be voted upon, and no amendment of a city charter shall be effective until it is approved by a majority of the votes cast thereon by the people of the city or town to which it applies. The city council may by ordinance order special elections to vote on municipal measures."

The general provisions of the act were intended for guidance in municipal legislation in cities and towns which have not provided by ordinance or charter for the manner of exercising the initiative powers reserved by the Constitution to the people thereof, as to their municipal legislation. This is indicated by Section 10 of the act, Section 4105, Or. L. Section 1a, Article IV of the Constitution, ordains in part, thus:

"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." See McKenna v. City of Portland, 52 Or. 193 (96 P. 552).

In the present case the proposed charter amendment was filed with the city recorder more than sixty days prior to the election. The council by resolution followed Section 4109, Or. L. Ordinance No. 4174, ordering the special election, was passed by an affirmative vote of five of the members of the common council. The ordinance was not approved by the affirmative vote of three fourths of the members elected to the city council, in order to declare an emergency, as provided in Section 4106, Or. L. Nor was such approval by an affirmative vote of two thirds of all the members elected to the common council, as required by the city charter, in order to declare an emergency. It is not claimed that the emergency clause is effective for the purpose of shortening the time for the ordinance to take effect. Section 4106, Or. L., provides:

"Referendum petitions against any ordinance, franchise or resolution passed by a city council shall be signed by not less than ten per cent of the voters of said city, and said signatures shall be verified in the manner herein provided and the registration or voters lists on file in the office of the county clerk of the county in which such city or town is situated shall be available for verifying said signatures; the petition shall be filed with the city clerk, auditor or recorder, as the case may be, within thirty days after the passage of such ordinance, resolutions or franchise. No city ordinance, resolution or franchise shall take effect and become operative until thirty days after its passage by the council and approval by the mayor, unless the same shall be passed over his veto, and in that case it shall not take effect and become operative until thirty days after such final passage, except measures necessary for the immediate preservation of the peace, health, or safety of the city; and no such emergency measure shall become immediately operative unless it shall state in a separate section the reasons why it is necessary that it should become immediately operative, and shall be approved by the affirmative vote of three fourths of all the members elected to the city council, taken by ayes and noes, and also approved by the mayor."

The printed charter of the City of Eugene, page 62, Section 1, provided:

"No city ordinance enacting municipal legislation shall take effect and become operative until thirty days after its passage by the Common Council and approval by the Mayor, except emergencies," etc. (Italics ours.)

It is plain from the language of Section 4108, Or. L., and the charter, that the provision for thirty days to elapse after the passage of an ordinance is made for the purpose of allowing the required time for invoking the referendum against the measure. If the ordinance in question could not be referred to the legal voters of the city, the reason for the application of the thirty-day provision fails.

The defendants contend that the city ordinance, ordering the special election for the purpose of voting on the proposed charter amendment, was an administrative act, and is not "municipal legislation" within the meaning of the Constitution and the statutes enacted for the purpose of furnishing the modusoperandi for carrying the constitutional mandate into effect. The plaintiff maintains the contrary.

By Article XI, Section 2, of the Constitution of the State of Oregon:

"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," etc.

It is clear that the referendum provisions of the Constitution can only apply to acts of a common council which constitute "municipal legislation."

In Long v. City of Portland, 53 Or. 93, at page 100 (98 P. 324, 98 P. 1111), the following language by Mr. Justice EAKIN, which pertains to this question, is recorded:

"The effect of the referendum will not, however, affect in any manner ordinances or resolutions of the council that are not ``municipal legislation.' Section 11 of the legislative act of 1907 (Laws 1907, p. 406), provides that ``no city ordinance, resolution or franchise, shall take effect and become operative until 30 days after its passage by the council and approved by the mayor,' and defendant cites this provision as being especially cumbersome to the prompt and expeditious transaction of municipal business, and in proceedings that are in invitum, such as those relating to street improvements; but this legislative act can only apply to such ordinances, resolution, and franchises as are subject to the referendum. It cannot be broader than the provision it seeks to aid. The only acts of the council that are subject to the referendum, by Section 1a, Article IV, are such as come within the term ``municipal legislation.' Legislation as here contemplated must be considered in the sense of general laws, namely rules of civil conduct prescribed by the law-making power and of general application."

The opinion in the case of Curtis v. Tillamook City,88 Or. 443, 456 (171 P. 574, 172 P. 122), is instructive in regard to the application of the Constitution and statute and charter, and makes the matter clear. There the council on April 2, 1921, adopted an ordinance providing for a special election. The election was held on April 12th of that year. In the opinion upon rehearing, on page 456 of the Report, we find the following language of Mr. Justice HARRIS:

"It may be assumed, however, for the purpose of the instant case that the legislative act of 1903 prescribed the manner in which the initiative and referendum powers should be exercised both in passing ordinances and in amending the charter. If the charter did so provide it was by force of an act of the legislature; but when the state Constitution was amended in 1906 this amendment to the Constitution by its own force amended the charter of every city and town in the state so as to enable all cities and towns to prescribe their own method for exercising the initiative and referendum powers. When Ordinance No. 233 was enacted it was adopted pursuant to a power that had been written into the charter in 1906 and consequently Ordinance No. 233 not only superseded Chapter 226, Laws of 1907, but it also supplanted the method fixed by the legislature in 1903."

The opinion in this case enunciated a rule in regard to the adoption of municipal ordinances which has been in vogue in Oregon for about seventeen years and should not be changed without a cogent reason therefor. See, also, Opinion of theJustices, 66 N.H. 629 (33 A. 1076). Whatever may be the requirement as to the form of the enactment, the action of a municipal council relating to subjects of a permanent or general character is municipal legislation, while those which are temporary in their operation and effect or administrative are not municipal legislation: 2 Abbott's Municipal Corp., §§ 514, 516; 1 Beach on Public Corp., §§ 483, 484, 486; 21 Am. Eng. Ency. of Law (2 ed.), 948; 28 Cyc. 347; City of Alma v. Guaranty Sav.Bank, 60 Fed. 203 (8 C.C.A. 564); City of Lincoln v. SunVapor Street Light Co., 69 Fed. 756 (8 C.C.A. 253); City ofCentral v. Sears, 2 Colo. 589. The distinction between acts that are legislative and those that are administrative is not destroyed by reason of the fact that the charter of the city may require the latter to be accomplished by an ordinance: Long v.City of Portland, supra; Shaub v. Lancaster City, 156 Pa. 362, 366 (26 A. 1067, 1068, 21 L.R.A. 691). The fact that an order for a special election must be effected by an ordinance and not by a resolution will not bring the act within the classification of municipal legislation: 1 Beach on Public Corp., § 484.

The rule is stated by McQuillin on Mun. Corp., Volume 7, Section 351c, page 6621, as follows:

"Executive Distinguished from Legislative Referendum. — Both legislative and executive powers are possessed by municipal corporations. Often executive powers are vested in the council or legislative body and exercised by motion, resolution or ordinance. Executive action evidenced by ordinance or resolution does not subject such action to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action. The form or name does not change the essential nature of the real step taken. The mode of effecting the action is not important. If legislative the law contemplates the people may invoke the referendum. The referendum is usually held ``applicable to all ordinances and resolutions which constitute an exercise of legislative power.' That is, it was designed to be directed against ``supposed evils of legislation alone.' ``To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city." Dillon on Mun. Corp. (5 ed.), § 572; Ehrhardt v. City of Seattle, 33 Wash. 664 (74 P. 827).

The legislature of this state enacted a law, which was in force in the City of Eugene, providing for ordering special elections to be held to vote upon municipal measures, and the common council of the city in calling or ordering this special election was making no general law, enacting no legislation, but was simply and purely carrying out or executing a law already made by the legislature. An accurate test of the question as to whether an action of the common council is legislative or administrative is the determination of the question whether the act of the council was making a law or executing one already in existence. In Ehrhardt v. City of Seattle, supra, the syllabus, which indicates the decision, reads thus:

"A city charter provided in one section that every legislative act should be by ordinance, and that every ordinance should be clearly entitled, and contain but one subject, to be expressed in the title. Another section provided for amendments to the charter, and their submission to the electors, but prescribed no formality for their proposal, and no requirement that it should be by ordinance, but merely that they should be proposed in the city council. Held, that a proposition to amend the charter passed by the city council for submission to the electors need not be passed by ordinance, but might be by resolution."

In Kiernan v. Portland, 57 Or. 454 (111 P. 379, 112 P. 402, 37 L.R.A. (N.S.) 332), the syllabus reads as follows:

"Where a city ordinance as amended, providing for submission to voters of an amendment to the city charter, was repealed, because of supposedly irregularity, the fact that the repealing ordinance did not take effect for thirty days did not deprive the council of power to pass a resolution to submit the charter amendment to a vote, at the coming election, before the thirty-day period had expired."

In Yarbrough, Mayor v. Donaldson, 67 Okla. 318 (170 P. 1165), under a state law authorizing the city council to sell and dispose of certain of its property, the common council of a city proposed to sell its electric light plant and adopted a resolution disposing of the same. Certain voters presented to the mayor a referendum petition, which he declined to file and refused to call an election to vote upon the referendum. Amandamus was instituted to compel him to do so. In passing upon the question the court said:

"The city, by the resolution providing for the sale of its electric light plant, was not exercising a legislative function but was administering a law already made, to wit, Section 541,supra, giving it the power to dispose of its property."

In Brazell et al. v. Zeigler, 26 Okla. 826 (110 P. 1052), the point involved was whether the action of the board of county commissioners in ordering the clerk to advertise for bids for the construction of a certain bridge "was local municipal legislation or administrative action." The court, after referring to the law prescribing the procedure for carrying out the initiative and referendum in municipalities, said:

"Tested by the rule that municipal legislation consists of prescribing by the lawmaking power of the municipality a rule of civil conduct, was the board in making the order making law, or was it administering or executing a law already made? If it was making law it was exercising legislative function and the result of its act was municipal legislation. If it was administering a law already made it was exercising administrative function, and the result of its act not municipal legislation, but administrative action; for, as stated by Mr. McQuillin in his work on Municipal Ordinances, § 80, ``executive and administrative duties are such as concern the execution of existing laws.'"

In 36 C.J., page 966, we read:

"Legislation. A word with a well defined meaning in law; act of legislature; laws or statutes enacted; the act of giving or enacting laws; act of making or passing a law or laws; the enactment of laws; the exercise of sovereign power; the power to make laws; the authority conferred by or exercised under the constitution of a state or of the United States to make new laws or to alter or repeal existing ones."

In note 48 (a), on the same page, we find:

"``Ratification of constitutional amendment not legislation. — (1) Ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment." Hawke v. Smith, 253 U.S. 221, 229 (64 L. Ed. 871,40 Sup. Ct. Rep. 495, 10 A.L.R. 1504). (2) Ratification of an amendment to the Federal Constitution is ``not an act of legislation within the proper sense of the word.' Leser v.Board of Registry, 139 Md. 46, 73 (114 A. 840)."

Ib. (b):

"A proposal to amend the state constitution is not legislation." Warfield v. Vandiver, 101 Md. 78 (60 A. 538,542, 543, 4 Ann. Cas. 692).

Ib. (c):

"The appointment of a committee to gather information and make recommendations in regard to amending, enacting or repealing laws is (not) ``legislation' within the meaning of the word as used in our Constitution." Ex parte Wolters, 64 Tex. Cr. 238, 322 (144 S.W. 531, Ann. Cas. 1916B, 1071).

In City of Batesville v. Ball et al., 100 Ark. 496 (140 S.W. 712, Ann. Cas. 1913C, 1317), in discussing a kindred question the court, at page 1320 of the latter report, said:

"The ordinances of a general or permanent nature which must be adopted according to the formalities of section 5481 of Kirby's Digest refer to those regulations and acts of the council which prescribe a permanent rule of government for the municipality. The action of the council submitting the question of annexation is only the expression of its view or opinion that proceedings looking to that end should be put in motion. Under the provisions of section 5519 of Kirby's Digest, relating to the annexation of territory to municipalities, the submission of the question by the municipal council is only one of the steps to be taken in the proceedings." See Kline v.Streator, 78 Ill. App. 42.

We all remember that under the old local option law a special election for the purpose of voting upon prohibition was called by order of the County Court upon a proper petition therefor. It would hardly be thought that the County Court in making such an order and submitting the matter to the voters was performing a legislative act.

A charter amendment to the city charter of Eugene can be proposed by resolution by the common council and the common council can then by ordinance call a special election, providing and giving to the electors the privilege of voting either for or against the proposed charter amendment. If it should be held that the action of the council in so ordering the election should be subject to the referendum, the situation would be peculiar. It would be to the effect that the electors of the city would have the right to vote at an election upon the question as to whether an election should be held, to which they would vote upon another question, or the same question, at a succeeding election. If the second question should be attempted to be referred to a special election by a second ordinance ordering a special election for that purpose, then the second ordinance under the same process of reasoning could be referred to the people and so on, adinfinitum, so that the provision of Section 1a, Article IV of the Constitution, reserving the right of the initiative and referendum powers "to the legal voters of every municipality and district as to all local, special and municipal legislation," would by its own weight sink into oblivion and be absolutely annulled, in so far as the exercise of such power at a special election is concerned.

The common council of the City of Eugene in calling the special election enacted no permanent law or general rule of conduct but a special rule for a special temporary purpose. They simply proposed a law to the voters of the municipality, who by virtue of the Constitution are anthorized to legislate a measure amending the charter of the city. The council has not the power to amend that municipal law: Colby v. Medford, 85 Or. 485,514 (167 P. 487); Birnie v. La Grande, 78 Or. 531, 538 (153 P. 415.) The action of the common council in ordering a special election was not a legislative act within the meaning of the Constitution and statute. The ordinance embracing such order was not subject to the referendum, and took effect upon its passage and approval by the mayor. In other words, we hold that irrespective of whether the ordinance is, strictly speaking, municipal legislation or not, the ordinance in question calling the special election on the date named in the resolution and passed by the council was not subject to the referendum. Therefore, there was no necessity or reason for thirty days to elapse after its passage before it took effect.

The law does not require a vain thing to be done. The electors of the city had ample opportunity to ballot on the measure once. The law does not, and should not, provide for two elections to vote practically upon the same measure. It is an established rule of statutory construction that such meaning is to be given to the language of the lawmakers as will effectuate the object and purpose of the law: Ankeny v. Multnomah County, 4 Or. 271, 273; State ex rel. v. Hall,73 Or. 231, 235 (144 P. 475).

It has been decided in this state that a substantial compliance with a charter requirement is sufficient: State v. Kelsey,66 Or. 70, 77 (133 P. 806); State ex rel. v. Dalles City,72 Or. 337, 350 (143 P. 1127, Ann. Cas. 1916B, 855); Colby v.City of Medford, 85 Or. 485, 508 (167 P. 487).

The resolution of the common council passed on May 1, 1924, which was the first step in the proceedings, fixed the date for holding the special election in the following language:

"It is hereby resolved by the mayor and common council of the city of Eugene, that there be submitted to the electors of said city for their approval or rejection at a special election to be held in the city of Eugene on the 2nd day of July, 1924, the annexed Charter Amendment, being, * *"

As stated, the resolution and the proposed enactment, amending the city charter authorizing the issuance of the bonds, was filed in the office of the city recorder more than sixty days prior to the election. The ordinance, No. 4174, carries out the resolution and names the same date for the election.

In State ex rel. v. Gates, 190 Mo. 540, 558 (89 S.W. 881, 2 L.R.A. (N.S.) 152), it is stated, quoted in 2 McQuillin, Section 704:

"The form in which the act is expressed is immaterial; the act done donates its character. * *"

As clearly pointed out by Mr. Justice BROWN in the case ofState ex rel. v. Kozer (Or.), 239 P. 805, recently decided, it is necessary that the law authorize the holding of an election in order for the same to be valid, and it is there shown that at the time the bill there under consideration was passed by the legislature, there was no law authorizing the special election in question in that case. However, that is not the condition in the instant case. Section 4109, Or. L., which was passed pursuant to constitutional authority, plainly provides for a special election to vote on municipal measures. The law authorizing the special election in question had already been enacted before the resolution and ordinance calling the special election were passed. There was then no necessity for further legislation authorizing the special election to be held. The municipal authorities in passing the ordinance were simply executing the law in force prior to that time.

All ordinances of the City of Eugene go into effect immediately upon their passage and approval by the mayor, except ordinances enacting "municipal legislation." In the present case the special election was ordered by an ordinance in conformity with the statute. All the details required for the submission of the charter amendment to the electors of the city were provided in the ordinances adopted. The notice of election was regularly given and published.

It is urged by the learned counsel for plaintiff that "this proceeding involves the question of taxation and is legislative." This contention may be answered or explained as follows: The enactment of the charter amendment by the electors of the city involves a question of taxation, and is legislative. The action of the council in calling the election is merely the administration of a power given to the council by the statute and simply proposes legislation and does not pretend to enact legislation. The power to cause the taxation is by virtue of the Constitution vested in the people of the city, and they alone exercised the power in the instant case.

The plaintiff cites and relies upon the case of National Bankof Commerce v. Town of Granada, 44 Fed. 262. It was there held that an ordinance calling for an election to authorize the funding of the floating debt of a town, which ordinance was passed but not recorded or published as required by the statute of Colorado, before it would take effect, never went into effect and that the bonds authorized by such election were void. In that case the circumstances and the law were different from those involved here. We find no decisions holding that an ordinance calling a special election is "municipal legislation" where the ordinance pertains to or involves the initiative and referendum powers.

The Constitution of the state, Article IV, Section 1a, and Article XI, Section 2, is paramount to the statute and controls the legislative enactments. Sections 4106 and 4109, Or. L., must be construed in connection with the Constitution as announced by Mr. Justice EAKIN in Long v. Portland, supra, where a city, either by its charter or by ordinance, has prescribed its own procedure under Article IV, Section 1a, for the exercise of the initiative and referendum powers, the general provisions of the statute directing such procedure do not apply: Colby v. Cityof Medford, supra; State ex rel. v. Andresen, 75 Or. 516 (147 P. 526).

The ordinance in question was passed by a majority vote of the common council, which was sufficient for its enactment although it did not have enough affirmative votes to effectuate the emergency clause. The invalidity of the emergency section did not affect the balance of the ordinance: Barton v. Recorder'sCourt, 60 Or. 273 (119 P. 344). It was not essential that the ordinance contain an emergency clause in order for it to take effect upon its passage. The ordinance not being subject to being referred to the voters of the city, it would be futile to require it to be held in abeyance for thirty days before it took effect, in order to afford an opportunity for a referendum petition to be filed. A full, fair expression of the electors of the City of Eugene was had at the special election and the amendment to the city charter was adopted.

The demurrer to the defendant's answer should have been overruled. The decree of the trial court is reversed and one will be directed to be entered in accordance with this opinion, declaring the special election held in the City of Eugene on July 2, 1924, valid, and that the charter amendment adopted at said election was legally adopted and is valid; that the injunction herein be dissolved and that plaintiff's complaint be dismissed.

REVERSED WITH DIRECTIONS.

McBRIDE, C.J., concurs.

COSHOW and RAND, JJ., concur in a special opinion.