City of La Grande v. Public Employes Retirement Board

LINDE, J.

In these cases the court sustained state laws mandating certain retirement and insurance benefits for police and firefighting personnel against claims that the laws unconstitutionally infringed on the cities’ powers of self-government. 281 Or 137, 576 P2d 1204 (1978). The Cities of La Grande and Astoria filed an extensive petition for rehearing, and we set the case down for reargument. We reaffirm the constitutionality of the challenged statutes.

First. The dispute involves the meaning of the "home rule” amendments added to the Oregon Constitution in 1906, which we repeat here to avoid the inconvenience of referring back to the original opinion. Article XI, section 2, was amended to include the words emphasized here:

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 charter 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 Oregon¹. . . .

At the same time, article IV, which had earlier been amended to reserve to the people the statewide powers of initiative and referendum, was further amended to add what is now section 1(5):

The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and muncipal legislation of every character in or for their municipality or district. . . .

Together, the 1906 amendments provide two grants of power and one limitation of power. Article XI, section 2, grants power to the voters of every city or town to enact and amend their municipal charter. It withdraws power from the Legislative Assembly to enact, amend, or repeal² such charters. Article IV, section 1(5), empowers local voters to initiate or to refer to popular vote "all local, special and municipal legislation.”

It deserves to be reemphasized that the terms of the granted powers and of the accompanying limitation need not be and are not symmetrical. Much of the argument against these statutes has proceeded as though a constitutional grant of power to one level of government necessarily carries with it a corresponding withdrawal of power from the other. That this is not so has long been a truism with respect to the relationship between the powers of Congress and the states, and it is equally true of "home rule” within a state. It is entirely possible to grant certain powers to local governments to act on their own initiative without at the same time limiting the powers of the state legislature. Indeed, as a practical matter this is essential if local government is to have any authority to legislate on its own in matters in which the state could also act, for otherwise local powers would have to be narrowly confined in order to save room for potential state legislation.³ The fact that the 1906 amendments gave municipal voters direct constitutional power to "enact and amend their municipal charter” and to use the initiative and referendum for "all local, special and municipal legislation” was a great achievement for home rule even though these two clauses did not of themselves take anything from the plenary legislative power of the state, for before 1906 these local powers had to be obtained from the Legislative Assembly.

The withdrawal of power from the legislature is found in the other clause of the 1906 amendments quoted above, that "[t]he Legislative Assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town.” Or Const art XI, § 2. Since the attack in the present cases is on state statutes, we deal with an issue whether the constitution denies the state the power to act, not an issue whether it authorizes local action. There is, of course, no question that La Grande and Astoria could adopt retirement or insurance programs for their employees. The only question is whether article XI, section 2, cut off the legislature’s authority to enact statewide standards for such programs.

As we noted in the original opinion, the literal text of article XI, section 2, provides no basis for the cities’ position, because their own relevant policies were not in fact stated in their city charters. 281 Or at 150. Petitioners do not purport to point to precise words in article XI, section 2, as denying the legislature’s authority to enact these laws. However, the opinion also agreed with petitioners that the limitation expressed in article XI, section 2, should not be read to hinge on whether a city chooses to place a particular policy into its charter or into some other form of enactment pursuant to its charter: "It is not the label that matters but the role of the provision in local self-government.” Ibid.

While declining to "exalt form over substance,” however, we found sense in the draftsmen’s choice of words that denied the legislature power to enact or supersede municipal charters rather than to supersede local enactments of any kind. If the latter were intended, "charter or act of incorporation” would hardly be the way to write it. But the special function of a charter or act of incorporation is that it is needed to organize the local political entity, to establish its governing organs, their selection, their powers and their limits. The charter is the local constitution. The fact that cities, like states, sometimes place merely legislative policies into their charters does not contradict this special constitutive function. "The charter is a grant of power, and the municipality possesses only those properties [sic\ which the charter confers upon it,” the court wrote in 1907, citing earlier cases for this restrictive reading of charter powers. MacDonald v. Lane, 49 Or 530, 532, 90 P 181 (1907) (City of Portland could not create an office not provided in its charter). It was against the background of this view of charter powers, granted or denied each city by legislative enactment, that the 1906 amendment withdrew this legislative control over charters and left the decisions how to structure and empower their municipal organs to the voters of each city or town.

Second. Lacking precise terms in article XI, section 2, that expressly withdraw the power of the legislature to enact these statutes, petitioners invoke the history of the provisions. Specifically, they argue that Justice Harris’s opinion in Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917), which we quoted in 281 Or at 144-145, confused the explanation given for "home rule” resolutions in 1901 and 1903 with what petitioners describe as the "altogether different” version actually adopted in 1906.⁴ But the differences, which of course were known to Justice Harris and Chief Justice McBride, in no way contradict the reasons for the amendment which were stated in Rose, and for which we quoted that case.

The version originally proposed by the Legislative Assembly in 1901 and 1903, but not submitted to the voters, was almost three times the length of the one ultimately adopted, mainly because the older versión contained detailed procedures for the preparation and adoption of charters.⁵ Those procedures were omitted in the 1906 amendment. But, without here repeating in detail the argument set forth in the dissent, the main reliance is placed on the fact that the 1906 version made the authority of cities and towns to adopt their own charters subject, not to the "general laws” of the state as in the first version, but to the constitution and criminal laws of the state.

The argument fails to note to what this change referred. What was it that the earlier version proposed to make subject to general laws? It was the authority of a city "to frame a charter for its own government.” And, further bearing out the understanding of the function of a charter discussed above, the amendment before its shortening stated that when adopted by the voters, the charter of a city "shall become the organic law thereof.” It was precisely this "organic” or constitutive role that article XI, section 2, attributed to the charter. It was this power of each city "to frame a charter for its own government” that would have been subject to and controlled by state legislation under the first but not under the final version of the amendment. And it is these organic and constitutive powers of self-government that are safeguarded by our interpretation of the amendment.⁶

On reargument the state maintains that article XI, section 2, was meant to prevent only special or individual laws dealing with municipal government, not laws applicable to all cities generally. In effect, the state takes the position adopted in Rose v. Port of Portland, supra, which we declined to revive in our original opinion. It is true that the individual enactment and amendment of city charters by the legislature were the practice against which article XI, section 2, and its contemporary explanations were chiefly directed.⁷ Nevertheless, in view of the change from the first to the final version of the amendment, we agreed with the cities on this score. A city’s choice of its frame of government in its charter, and even beyond the charter as such, is not subject to general or statewide laws, except for procedural protections of the kind cited at note 15 of the original opinion. With respect to general laws for governmental processes, our opinion reaffirmed the rule of State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962). See 281 Or at 146, 576 P2d at 1210.

In an effort to extend this principle from laws concerning city charters to a local option to escape state substantive laws, the cities argue that early charters contained many authorizations for the city to pursue specified social objectives and social policies. But again, there is no disagreement that the cities could after 1906 and can today authorize their governments to pursue such policies. See, e.g., State ex rel Haley v. City of Troutdale, 281 Or 203, 576 P2d 1238 (1978).

Moreover, petitioners continue this line of argument by pointing to the analogy of county "home rule” under article VI, section 10, and positing that "matters of county concern,” like "municipal legislation” under article IV, section 1(5), extends to "substantive” as well as "structural and procedural” matters. This points up the apparent misunderstanding we wish once more to lay to rest. Petitioners crash through an open door. Of course, local charters are enacted to pursue substantive objectives, not just for their own sake. As the opinion points out, it is precisely because municipalities and the legislature often enact laws "in pursuit of substantive objectives, each well within its respective authority,” that the problem of conflict can arise. 281 Or at 148.

We tried again in note 30 to "forestall possible misunderstanding” by stressing that these cases are concerned with the constitutional limitation on state legislation stated in article XI, section 2, not with the authority of local communities and voters to act on their own initiative. The limitation stated in article XI, section 2, is only that "[t]he Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town.” The opinion holds that this limitation refers to legislative interference with the political arrangements made in local charters and "charter-like” provisions but does not invalidate general social, economic, or other regulatory statutes merely because they contradict local policies. This holding concerns only the constitutional limits on the state legislature; it does not concern what may be done under local authority granted by charter, statute, or "municipal legislation” under article IV, section 1(5), as petitioners appear to fear.

The constitution shows, however, that beyond the limitation on enacting, amending, or repealing charters the legislature did not lose the power to enact purely local laws. Article IV, section 23, lists the specific kinds of special or local laws that are forbidden. And article IV, section 1(5), the "home rule” section, itself provides that a referendum by the qualified voters of each municipality or district may be invoked against such local or special laws, those made by the legislature as well as those enacted by local governments. See Rose v. Port of Portland, 82 Or at 573; Wasco County P.U.D. v. Kelly, 171 Or 691, 699, 137 P2d 295 (1943).⁸ If the "home rule” amendments had made the enactment of local laws by the Legislative Assembly unconstitutional it would obviously be neither necessary nor even proper to invoke the referendum against such laws.

Third. The petitioners and the dissent argue that the distinction between legislation invading a municipality’s "charter of government” or "organic law” and legislation for general social goals will not free the state and the cities, and ultimately this court, from making difficult legal decisions.⁹ Of course, it will not. We will not repeat here all we said on that point in our first opinion, 281 Or at 147-148, 153-154. But those legal decisions will be made by identifiable criteria, derived from the constitutional command to the legislature to let local voters choose their own modes of government. They will not depend on the court’s reweighing the benefit-cost ratios of competing social demands, which is the very substance of politics.

Petitioners propose that this weighing of "local” against "statewide” interests could be made on a record of evidence taken in trial courts, including statistics, expert testimony, and the like. The suggestion demonstrates the flaw of "balancing” rather than resolving it. This approach would make the constitutionality of a statute depend, not on what kind of laws article XI, section 2, means to withdraw from the legislature, but on the capacity of litigants in a particular case to "prove” the value of the statute to the state as compared with the value of the competing policy to the city. But such a trial record might look different in a case from La Grande from the record in a case from Astoria, and settle nothing for Eugene, or Portland, though the statute is enacted for the whole state. A law that was sustained on one record in 1978 could be attacked again on different "proof” of the competing interests offered by different parties in 1979. And the ultimate dispute is over policy, even when the facts are undisputed. Nothing in article XI, section 2, supports such an approach to a trial of competing interests before the court.

Alternatively, petitioners propose that the legislature be required to state "findings” and "reasons” for imposing a statewide policy which could be contested in a trial on judicial review. The proposal misconceives the position of the Legislative Assembly in the constitutional scheme. The legislature is a body of politically accountable, policy and lawmaking representatives of the people of the state, not a factfinding agency. The value of recitals of legislative findings and justifications in statutes is a matter of disagreement.¹⁰ If constitutionality hinged on such recitals, it would become a game for draftsmen obliged to anticipate whatever might impress a future court; moreover, the suggestion does not state whether the recitals in the statute should be judged as of the time of the statute’s enactment or the time and place of its application. In any event, their use is a matter of legislative choice.

Finally, the petition for rehearing debates only the general tenor of the opinion in this case. It does not address the question actually at issue, the validity of the retirement and insurance requirements enacted in the 1971 statute. We reaffirm the constitutional validity of the statute.

1 The section was further amended in 1910 to add:

[A]nd the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon.

2 The difference between these clauses with respect to the "repeal” of a charter was noted in Acme Dairy Co. v. Astoria, 49 Or 520, 524, 90 P 153 (1907). See McKeon v. City of Portland, 61 Or 385, 122 P 291 (1912); cf. ORS 221.610-221.660 (1915 act authorizes cities to surrender their charters and disincorporate).

3 See, e.g., State ex rel Haley v. City of Troutdale, 281 Or 203, 576 P2d 1238 (1978) (local building code). The notion of mutually exclusive state and federal powers in the economy proved disastrous to congressional power under the commerce clause in the twentieth century because state legislation had been sustained in the nineteenth century by denying that its subject was within the federal commerce power. Thus Kidd v. Pearson, 128 US 1 (1888), in order to sustain a state regulation of a distillery, thought it necessary to hold that manufacturing was not "commerce,” thereby seriously undermining later congressional power over nationally important commercial activities such as sugar refining, United States v. E. C. Knight Co., 156 US 1 (1895), and coal mining, Carter v. Carter Coal Co., 298 US 238 (1936).

4 The petition also points out that, according to Rose the statement on which Rose relied for an explanation of the 1906 amendments was dated September 6, 1906, three months after the election at which the amendments were adopted. See 82 Or at 560. The cities suggest, therefore, that the statement could not be a reliable source for the purpose behind the amendments. But the 1906 date in Rose is a typographical error. The letter actually was dated September 6, 1905.

5 SENATE JOINT RESOLUTION NO. 3.

[Uf the Twenty-rirst Biennial session.»

AMENDMENT TO THE CONSTITUTION OK THE .VIATE OK OREGON.

Resolved h>j the senate, the house concurring:

That the following amendment to the Constitution of the State of Oregon be and the same is hereby proposed, that is to say, that section 2 of article XI of the Constitution be amended so as to read as follows:

Corporations may be formed under general laws, but shall not be created by special laws. All laws passed pursuant to this section may be altered, amended, or repealed, but not so as to impair^or destrov^any vested corporate rights.

The legislative assembly, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated mav become organized under such general laws whenever a majority of the electors voting at-a general election shall so determine, and shall organize in conformity therewith: and cities or towns heretofore^- hereafter} organized, and all charters thereof, framed or adopted by authority of this constitution, shall be subject to and controlled bv general laws. Anv citv shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and tor such purpose the legislative authority of such citv mav cause an election to be had, at which election there shall he chosen by the qualified electors of such citv fifteen freeholders thereof, who shall have been residents of such citv for a period of at least two years preceding their election, and qualified electors, whose duty it shall be to convene, within ten davs after their election, and prepare and propose a charter for such citv. Such proposed charter shall be submitted to the qualified electors of such citv. and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of such citv. and shall become the organic law thereof and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. Such proposed charter shall be published in^two daily7newspapers published in such city for at least thirtyclays prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days before the day of elec- ■ tion in all election precincts in such city. Said elections may ■ be general or special elections, and except as herein provided, shall be governed by the law regulating and controlling general or special elections in such city. Such charter may be amended by proposals therefor, submitted by the legislative authority of such city to the electors thereof, at any general election after notice of said submission, published as above specified, and ratified by a majority of the qualified electors voting thereon. In submitting any such charter or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted, on separately without prejudice to others.

Adopted bv the senate Februarv 14. 1001. '

C. W. FULTON,

President oi the Senate.

Concurred in bv the house Februarv 15. 1001.

L. B. REEDER,

Speaker of the House.

Adopted bv the senate January 31. 1903.

GEO. C. BROWNELL.

President of the Senate.

Concurred in bv the house Februarv 4, 1O03.

L. T. HARRIS.

[Enphasis supplied.] nearer of J Ilou-e.

SJR 3, 22nd Or Legis Ass’y, OL 1903 at 346-347. The bracketed words do not appear in the 1901 version of the resolution.

6 It is of no moment that the words "governmental structure,” "procedures,” or "social and other substantive policies” were not used in 1906, as the dissent argues. These are merely the words we chose to distinguish the function of a "charter of government” or "organic law” (terms which were used at that time to describe the object of article XI, section 2) from general legislation to promote social goals. The need to find a way to describe this distinction did not arise in 1901 or 1906, it arises from efforts to invoke article XI, section 2, to declare such general social legislation unconstitutional when it contradicts a local policy.

The dissent also quotes statements about "home rule” made by proponents and opponents of the further amendment that was adopted in 1910 in order to let city voters decide on prohibition or regulation of the liquor traffic under the state’s local option law rather than being bound by the vote in the county. These statements were made by private groups locked in bitter combat over prohibition and were made to win votes for or against the 1910 amendment on that issue.

7 Thus the Portland Oregonian editorialized shortly before the election:

The purpose of this proposed amendment is to take from the Legislature power to enact city charters, and place that power in the hands of the people of the territory to he affected by the act of incorporation. . . .

This is an effort to bring about "home rule” for cities. It is a movement based upon correct principles and aimed at needed reforms. It has the double object of relieving the Legislature of a vast amount of work that it should not be called upon to perform, and of placing in the hands of the people themselves the power to determine the fundamental law of their city government. . . .

The editorial went on to describe the abuses that were common under the system of charter enactment and amendment by legislators, including political trickery, "franchise grabbing,” and "plutocratic influences.” The Oregonian, May 28, 1906, at 6, col 2.

Apart from political abuse, relief from the voluminous work of special legislation mentioned in the editorial required a means of letting local communities take actions on their own initiative. The 1903 Regular Session of the Legislative Assembly produced 838 pages of special laws compared to 338 pages of general laws. The 23rd Legislative Assembly in 1905 enacted 1135 pages of special laws and 424 pages of general laws in a session which ran only from January 9 to February 17, 1905, the year before the "home rule” amendments were adopted.

8 This understanding is also shown by a pamphlet circulated by the People’s Power League in 1906 supporting adoption of the "home rule” amendments. The pamphlet stated that adoption of the amendments would give "COMPLETE HOME RULE to the voters of every county, city and town, through the local application of the initiative and referendum to all purely local business, including CITY CHARTERS to be enacted and amended by each city for itself, LOCAL LAWS AND FRANCHISES passed by the legislature, and ORDINANCES, RESOLUTIONS AND FRANCHISES passed by city councils and county courts; . . .”

In other words, the proponents of the amendments had no notion that the amendments were to withdraw the constitutional authority of the legislature to make local laws other than the authority to enact, amend, or repeal charters. They relied on the political process of the referendum to maintain local popular control over such laws.

9 The distinction between issues of substantive and procedural law in such legal areas as conflicts of law or retroactivity, referred to in the dissent, is not analogous. Here we distinguish between legislation setting social goals for the state and its communities, laws prescribing what is to be accomplished, from laws prescribing the organization and processes of city government which alone are "amendments” of city charters as we have interpreted article XI, section 2. Indeed, substantive laws not addressed to local governments at all but to private persons have sometimes been improperly attacked under these constitutional provisions. See State ex rel Haley v. City of Troutdale, 281 Or 203, 208-209, 576 P2d 1238, 1241-1242 (1978).

10 See, e.g., the discussion of the National Conference of Commissioners on Uniform State Laws quoted in F. Newman and S. Surrey, Legislation 590-595 (1955). See also R. Dickerson, Legislative Drafting § 9.1 (1954).