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 Frederick V. Holman 
 
 
 
 On Initiative amendments of the 
 
 
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ADDRESS OF 
 FREDERICK V. HOLMAN 
 
 PRESIDENT OF 
 THE OREGON BAR ASSOCIATION 
 
 AT ITS ANNUAL MEETING, NOVEMBER 
 FIFTEENTH, NINETEEN HUNDRED 
 AND TEN, AT PORTLAND, OREGON 
 
 SOME INSTANCES OF UNSATISFACTORY 
 RESULTS UNDER INITIATIVE AMEND- 
 MENTS OF THE OREGON CONSTITUTION 
 
 Portland, Oregon 
 , 1910 
 
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 .Portland, Ovegotx. 
 
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ADDRESS OF FREDERICK V. HOLMAN 
 
 y PRESIDENT OF 
 
 .OV^N.^ THE OREGON BAR ASSOCIATION 
 
 • X f^ Q AT ITS ANNUAL MEETING, NOVEMBER 
 
 ■^ kQ' (^\ FIFTEENTH, NINETEEN HUNDRED 
 
 AND TEN, AT PORTLAND, OREGON 
 
 Some Instances of Unsatisfactory Results under Initia- 
 tive Amendments of the Oregon Constitution* 
 
 To the man untrained in law, not alone statutory law, but 
 the common law and the laws of sociology, it doubtless seemed 
 very simple, sufficient and efficient to adopt and to exercise the 
 powers under the initiative and referendum amendments of 
 the Oregon Constitution relating to enacting laws and amend- 
 ing the Constitution by the legal voters of the State at larg-e, 
 but also by enacting- and amending charters of cities, towns 
 and other municipal corporations by their legal voters, and 
 thus largely to do away with precedents and hasten the dawn 
 of a political and social millennium in the body politic. 
 
 That men selected by popular vote to make up the State 
 Leg-islature were often careless, somtimes stupid and occasion- 
 ally venal, seemed to prove that men assembled in a legislative 
 body were a curse instead of a blessing, and that the same 
 men, together with the voters who had chosen them, were care- 
 ful, intelligent, efficient, virtuous, capable and honest men — 
 when acting individually as law makers. Apparently these 
 alleged reformers thought that as precedent was sometimes a 
 bar tO' progress it should be done away with as far as possible. *j^ 
 But they forgot — or more likely, as they could not forget what 
 they never knew — they were unaware that to upset existing 
 conditions is to create new conditions without precedents, and 
 that the first thing tO' do is to establish new precedents that 
 the new order may exist and continue. That, as was said by 
 Herbert Spencer of similar conditions, that it was like an 
 unskillful worker in metals who' had a pot with a metal top 
 which fitted in all places but one, and in endeavoring to make 
 it fit in this one place struck it with a hammer, and the result ■ 
 
 * See Appendix D, page 39, for a discussion of the amendment of 
 the Oregon Constitution, adopted November 8, 1910, making nugatory 
 trial by jury, by a method of appeal to the Supreme Court. 
 
was that while it fitted tolerably well in this one place, there 
 were many places where it fitted before where it did not fit 
 at all. 
 
 These theorists seem to believe that all human ills — with 
 the possible exception of physical ones — could be done away 
 with by amendments of Constitutions and municipal char- 
 ters, and by the passage of statutes. and ordinances. And 
 thus the laws of sociology could be repealed or amended, pos- 
 sibly even the law of supply and demand and also the law of 
 gravity, and thus upset gravity. 
 
 And so it came about that without changing the voters, 
 except by numbers, as Oregon is a growing State, the people 
 who supposed they could not govern themselves by a repre- 
 sentative form of government, to which they were accustomed, 
 adopted a democratic form of government, of which they 
 knew nothing as to its workings, evidently believing that as 
 they were incapable of electing proper representatives they 
 were capable of enacting their laws by popular vote, and as 
 conditions were unsatisfactory they could be bettered by upset- 
 ting the existing order. 
 
 But the result, partly at least, must be disappointing to 
 these theorists, for the crudity of these popular amendments 
 of the Constitution and other enactments has been such that 
 they have been amended by the Courts — practically legislat- 
 ing amendments by decisions — to make these enactments 
 workable. Fortunately, perhaps, these initiative amendments 
 of the Constitution do not provide against their amendment 
 by judicial decisions. And this suggests whether a further 
 amendment to the initiative provisions of the Oregon Consti- 
 tution might not be made by abolishing the Legislature and 
 giving all legislative power to the people and to the 
 Courts, as seems to be the case with these amendments of the 
 Constitution. 
 
 In this address I shall call attention mainly tO' the enact- 
 ment and amendments of charters of cities, towns, and other 
 municipal corporations under the Oregon Constitution as 
 amended, so as to allow the legal voters of each city and town 
 to enact and amend its own charter, and to decisions of our 
 
 Gift 
 
Courts in relation thereto. To consider the whole initiative 
 and referendum scheme of government in Oregon would 
 require a book with copious notes. 
 
 The Initiative and Referendum Constitutional 
 Amendments of the Oregon Constitution 
 
 By initiative vote, June 2, 1902, Section i of Article IV of 
 the Constitution of Oregon was amended by which legislative 
 "measures" or amendments to^ the Constitution could be 
 adopted under an initiative petition. It will be noted that the 
 number of voters necessary to sign an initiative petition is 
 not prescribed, but is left uncertain, and expressed in the nega- 
 tive, by the words, "not more than eight per cent of the legal 
 voters shall be required to propose any measure by such peti- 
 tion," while the number of legal voters to sign a referen- 
 dum petition is fixed, viz. : "Five per cent of the legal 
 voters." * Nor did the act of February 24, 1903, provide the 
 number or percentage of voters necessary to sign an initiative 
 petition. 
 
 I shall presently show that the Legislative Act of February 
 25, 1907, which repealed said act of 1903, does not provide 
 the number or percentage of voters necessary to sign an initi- 
 ative petition, although it does provide the percentage of 
 voters necessary to sign a referendum petition against any 
 municipal measure. 
 
 It is further provided by said amendment of the original 
 Section i of Article IV of the Constitution, that "The whole 
 number of votes cast for Justice of the Supreme Court at the 
 regular election last preceding the filing of any petition for 
 the initiative or for the referendum shall be the basis on which 
 the number of legal voters necessary to sign such petition 
 shall be counted." This last clause applies only to said Section 
 I, and does not apply to Section la of said Article IV, adopted 
 in 1907, relating to initiative and referendum petitions con- 
 cerning municipal legislation. 
 
 Under initiative petition the people of the State of Oregon 
 on June 4, 1906, amended said Article IV of the State Con- 
 
 * See Appendix A. 
 
stitution by adding tO' it a section called Section la, and at 
 the same time amended Section 2 of Article XI of the 
 Constitution. 
 
 The part of said Section la relating to municipalities and 
 districts is as follows : 
 
 "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 pre- 
 scribed 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 per cent of the legal 
 voters may be required to order the referendum nor more than fifteen 
 per cent to propose any measure, by the initiative, in any city or 
 town." * 
 
 Said Section 2 of Article XI as so amended is as follows : 
 
 "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 Oregon." t 
 
 The Oregon Supreme Court has held that Section la of 
 Article IV and Section 2 of Article XI of the Oregon Con- 
 stitution as amended must be construed together, sO' that this 
 question may be considered as settled. 
 
 Farrell v. City of Portland, 52 Ogn. 587. 
 
 These two amendments of the Oregon Constitution (Sec. 
 la of Article IV and Section 2 of Article XI) I shall refer to 
 as "the amendments of 1906." 
 
 The Oregon Supreme Court has held in several cases that 
 the provisions of the amendments of 1906 are not self-exe- 
 cuting, but require a general law passed by the Legislature 
 or proper action by a municipality or its voters to make these 
 amendments effective. These decisions I shall more specifically 
 refer to. 
 
 * See Appendix B. 
 t See Appendix C. 
 
The Law in Oregon Prior to the Initiative and 
 Referendum Amendments to its Constitution 
 
 It is proper first to consider some phases of the law as they 
 v/ere estabHshed and had become stare decisis prior to these 
 amendments. I call particular attention tO' the law as so 
 established on the following powers and subjects, viz. : 
 
 First. The lav/ of Eminent Domain. 
 
 Second. The power to grant franchises and the control 
 of highways. 
 
 Third. The law relating to bridges on navigable rivers 
 wholly within a State. 
 
 First, The Law of Eminent Domain 
 
 In 10 Am. and Eng. Ency. of Lazv (2d Ed.), page 1049, 
 it is said : 
 
 "The right to exercise the power of eminent domain is inherent in 
 sovereignty, necessary to it and inseparable from it. From the very 
 nature of society and organized government this right must belong to 
 the State. It is a part of the sovereign power of every nation. * * * 
 It lies dormant in the State until legislative action is had pointing out 
 the occasions, the modes and the agencies for its exercise." 
 
 In Lezms on Eminent Domain, Sections 237 and 238, it is 
 said : 
 
 "Sec. 237. The power of eminent domain, being an incident of 
 sovereignty, is inherent in the Federal Government and in the several 
 States, by virtue of their sovereignty. It does not exist in any sub- 
 ordinate political division or public corporation unless granted by the 
 sovereign power. Consequently it does not exist in any territorial 
 government unless it has been expressly granted by Congress. This 
 power, with all its incidents, is vested in the Legislatures of the 
 several States by the general grant of legislative powers contained 
 in the Constitution. From this it follows, first, that the power can 
 only be exercised by virtue of a legislative enactment; second, that 
 the time, manner and occasion of its exercise are wholly in the con- 
 trol and discretion of the Legislature, except as restrained by the 
 Constitution." 
 
 "Sec. 238. The necessity for exercising the power is exclusively 
 for the Legislature. Whether the power of eminent domain shall be 
 put in motion for any particular purpose, and whether the exigencies 
 of the occasion and the public welfare require or justify its exercise, 
 are questions which rest entirely with the Legislature." 
 
 In Mills on Eminent Domain, Section i, it is said: 
 
 "Eminent domain, or the power of the sovereign to condemn 
 private property for publjc use, has been recognized and treated of by 
 
jurists for centuries. The commentators on the civil law treat it as an 
 established power of long standing. Pufifendorf calls it the 'exercise 
 of transcendental propriety'; as if the sovereign thereby resumed 
 possession of that which had been previously granted to the subject 
 upon the condition that it might be again resumed to meet the neces- 
 sities of the sovereign. * * * j^ ^^g United States this right 
 of the subject is secured by the Federal Constitution, and by a separate 
 clause in the Bill of Rights of almost every State in the Union. In 
 the absence of provisions in the Constitutions, the Courts have con- 
 sidered that the principle was so universal and fundamental that laws 
 not recognizing the right of the subject to compensation would be 
 void. The Constitutions of the States do not confer upon the Legis- 
 latures the power of eminent domain, but they recognize its existence 
 and attach conditions upon the exercise of the power. The right 
 existed prior to the Constitutions." 
 
 In 2 Elliott on Railroads (2nd Ed.), Section 950 (page 
 473), it is said: 
 
 "The power of eminent domain has existed in all ages as an 
 acknowledged attribute of sovereignty. It is inherent in every sove- 
 reign Government, and is not conferred by Constitutions, but is 
 limited and regulated by them. It cannot be surrendered by grant 
 or contract, since its continued exercise is essential to the existence 
 of organized society. This power exists in each of the States of the 
 Union, whether it is expressly conferred by the Constitution or not." 
 
 In the case of Leeds v. The City of Richmond, 102 Ind. 
 377, speaking of the right of a municipal corporation to exer- 
 cise the powers of Eminent Domain, the Supreme Court of 
 Indiana said : 
 
 "The high and extraordinary power of eminent domain may not 
 exist without a special grant of power," Citing 2 Dillon Mun. Cor. (3rd 
 Ed.), Sections 574, 575. 
 
 In Cooley on Constitutional Limitations (7th Ed.), page 
 753, Eminent Domain is defined as : 
 
 "That superior right of property pertaining to the sovereignty by 
 which the private property acquired by its citizens under its protection 
 may be taken or its use controlled for the public benefit without 
 regards to the wishes of its owners." 
 
 The power of Eminent Domain is not inherent in a munici- 
 pal corporation, nor is it granted, nor can it be exercised merely 
 by implication. It must be granted by the Legislature, unless 
 the Legislature is prohibited from sO' doing by the Constitu- 
 tion, or be granted by the Constitution of the State, by express 
 terms, or by a necessary implication equivalent tO' express 
 
terms. Eminent Domain being an incident of sovereignty its 
 exercise can be granted by the State to municipal corporations 
 and quasi public corporations. Of course, the people of a 
 State can determine the exercise of this power by means of 
 appropriate provisions in its Constitution. There are no 
 express provisions in the Oregon Constitution giving this 
 power. It therefore rests wholly in the Legislature unless 
 Section 2 of Article XI, as now existing, grants the right to 
 exercise such power. The only power given is as follows : 
 
 "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." 
 
 It must be borne in mind that the power to enact and 
 amend charters is subject to the Constitution of the State, and 
 to the sovereignty of the State; and that the exercise of the 
 power of Eminent Domain is a matter which concerns all the 
 people and the State itself. That this power may be delegated 
 to a city or town through proper authority needs no citation 
 of authorities. Can it be truly said that the mere right to 
 enact or amend a charter is a grant or a delegation of the sov- 
 ereign power of Eminent Domain without limitation? And, 
 if limited, are its limitations other than Section 18 of Article 
 I of the Oregon Constitution, which is : 
 
 "Private property shall not be taken for public use, nor the par- 
 ticular service of any man be demanded, without just compensation; 
 nor, except in case of the State, without such compensation first 
 assessed and tendered." 
 
 Prior to the adoption of the amendment of 1906 the Ore- 
 gon Supreme Court had passed on questions involved in the 
 power of Eminent Domain in a numiber of cases, among which 
 are the following : 
 
 In Dallas Lumbering Co. v. Urquhart, 16 Ogn. 67, Mr. 
 Justice Strahan said (pages 69, 70) : 
 
 "It is not for the Courts to say in what particular instances or 
 for what purposes the power of eminent domain may be exercised; 
 that power belongs exclusivelj'- to the Legislature, limited only by 
 the Constitution, and that is, the use must be public and just compen- 
 sation must be jnade. 
 
 "Says an eminent American author: 'As the power to take is 
 universal, so it is absolute; that is to say, the Legislature are the sole 
 
8 
 
 judges of the existence of the exigency which demands the sacrifice 
 of the rights of individuals.' 'I admit,' says Mr. Chancellor Walworth, 
 'that the Legislature are the sole judges as to the expediency of 
 exercising the right of eminent domain for the purpose of making 
 public improvements, either for the benefit of the inhabitants of the 
 State generally, or of any particular section thereof.' " 
 
 In Bridal Veil Linnhering Co. v. Johnson, 30 Ogn. 205, 
 Mr. Justice Bean said (page 208) : 
 
 "The right of eminent domain is a right of sovereignty, and can 
 be exercised only by legislative authority." 
 
 In Grady v. Dundon, 30 Ogn. 337, Mr. Chief Justice 
 Moore said : 
 
 "The power to appropriate private property to public use is 
 derived from the Legislative Assembly, which may prescribe the mode 
 of its exercise, and must provide a judicial tribunal for the determina- 
 tion of certain facts as a prerequisite to the exercise of such power 
 (2 Kent's Commentaries, 340)." 
 
 In Huddleston v. Eugene, 34 Ogn. 343, Mr. Justice Moore, 
 speaking of the exercise of the right of Eminent Domain, said 
 (page 358) : 
 
 "No prerogative of sovereign power should be watched with 
 greater vigilance than that which takes the property of the individual, 
 and devotes it to a public use." 
 
 In Grand Ronde Electric Co. v. Drake, 46 Ogn. 246, Mr. 
 Chief Justice Moore said (page 248) : 
 
 "It has been held by this Court that the Legislative Assembly 
 must in the first instance declare the necessity for and the expediency 
 of an exercise of the right of eminent domain in an act conferring 
 power for that purpose." 
 
 It will thus be seen that the Oregon Supreme Court had 
 established the doctrine that under the Constitution of the 
 State the right of Eminent Domain "can be exercised only by 
 legislative authority," and thus made this doctrine a part of 
 the Oregon Constitution. Certainly it is as much a part of 
 the Oregon Constitution as the leading cases decided by the 
 Supreme Court of the United States construing parts of the 
 Constitution of the United States have becom^e a part of the 
 latter Constitution. The opinions of Chief Justice Marshall 
 and other great judges of the Supreme Court of the United 
 States are now recognized by all Courts and by the legal pro- 
 
fession as being as much a part of the Constitution of the 
 United States as though the principles therein announced had 
 been expressly set forth in that Constitution itself. 
 
 Under said Section 2 of Article XI, as amended, of the 
 Oregon Constitution, does not the limitation that amendments 
 of municipal charters shall be "subject to the Constitution" 
 make such amendments subject to these decisions of the 
 Supreme Court of Oregon, which are a part of its Constitu- 
 tion? This applies not only to the pOAvers of Eminent 
 Domain, but also to the regulation and control of highways 
 and the granting' of franchises thereon. 
 
 It would seem that at the time of the adoption of the 
 amendment of Section 2 of Article XI of the Constitution, in 
 June, 1906, the power of the legal voters of a municipal cor- 
 poration "to enact or amend their municipal charter, subject 
 to the Constitution" did not give the power to such voters 
 to give a municipality the right to exercise the powers of 
 Eminent Domain by its own initiative, but that such powers 
 could be conferred only by an amendment to the Oregon Con- 
 stitution or by the Legislature, especially as the Oregon 
 Supreme Court, in Straw v. Harris, 54 Ogn. 424, held that 
 the Legislature, by a general law, "may at any time alter, 
 amend or even repeal any or all of the charters within it," and 
 could thus give to municipalities the right to exercise the power 
 of Eminent Domain. 
 
 It must not be forgotten that a city has imposed upon it 
 two kinds of duties or powers : one public, or governmental, 
 as an instrumentality of the State, and under which it exer- 
 cises police powers; the other is private, or proprietary, in 
 which it is as a legal individual. It is in the latter capacity 
 that it owns its water works and other public utilities, and as 
 such it is liable for negligence as a private corporation or an 
 individual is. I call attention tO' the learned and complete 
 decision on this question by Mr. Justice Bean in Esherg Cigar 
 Co. V. Portland, 34 Ogn. 282. 
 
 See also Wagner v. Portland, 40 Ogn. 394. 
 
 In the exercise of the power of Eminent Domain (which is 
 not a part of the police power), a city had to be granted by 
 the Legislature the right to exercise the power of Eminent 
 
lO 
 
 Domain, and, particularly so, when it sought to appropriate 
 property for use under its duties as a proprietor, e. g. as the 
 owner of public utilities. 
 
 Second, The Power to Exercise Control over Streets, 
 and Highways and to Grant Franchises 
 
 The streets of a city do not belong to a city, but to the 
 people of the whole State, as highways, and no control can 
 be exercised over them, and no franchise can be granted over 
 them unless authorized by the Legislature or by the Constitu- 
 tion. This was the law, at least, when the amendments of 
 1906 were adopted. 
 
 The law on this subject is well stated in 3 Elliott on Rail- 
 roads (2nd Ed.), Section 1076, where it is said: 
 
 "The Legislature of the State represents the public at large and 
 has paramount authority over its public ways, including the streets 
 in cities as well as country roads. Municipal corporations have no 
 inherent power to create other corporations or grant franchises, and 
 they cannot give a railroad company the right to lay its tracks and 
 operate its road in their streets unless they are authorized, either 
 expressly or impliedly, to do so by the Legislature. Authority to use 
 highways in this way must come, either directly or indirectly, from 
 the Legislature." 
 
 In s Abbott on Municipal Corporations, Section 897, it is 
 said: 
 
 "The State is the ultimate and original source of power in respect 
 to the establishment, maintenance and use of highways. Any lawful 
 permission, whatever it may be called, must proceed from the State 
 Legislature and the validity of grants is determined by the Constitu- 
 tion and other tests applied to all legislation. Special acts cannot 
 be passed where the Constitution forbids. The Legislature can act 
 in the granting of permission independent of subordinate govern- 
 mental agencies of the State, though the tendency of later years, 
 which is well grounded in reason, is for the State to confer upon local 
 municipal authorities the right to represent and to act for it in the 
 granting of permission for the occupation or use of the public high- 
 ways. The power, however, when exercised by municipal or other 
 subordinate public corporations, must be expressly granted or appear 
 by indisputable implication." 
 
 That this was the law in Oregon is well established by a 
 number of decisions of the Oregon Supreme Court, among 
 which are the following: 
 
II 
 
 In City of East Portland v. Multnomah Co., 6 Ogn. 62, 
 Mr. Justice McArthur said (page 65) : 
 
 "The paramount and primary control of the highways of a State, 
 including the streets in cities, is vested in the Legislature." 
 
 In Multnomah County v. Sliker, 10 Ogn. 65, Mr. Chief 
 Justice Lord said : 
 
 "The facts in this case are stipulated, and involve the identical 
 question decided by this Court in the case of East Portland v. Mult- 
 nomah County (6 Or. R. 64), and subsequently, the principle on which 
 the decision in that case proceeded, was re-examined and reaffirmed 
 in the case of the City of Astoria v. Clatsop County, not reported 
 for the reason that the question presented in the two cases were 
 identical. It will thus be seen that the subject matter of this action 
 has already received a careful and thorough investigation from the 
 Court, and ample opportunity has been afforded for the correction of 
 any error into which the Court might have fallen in the original 
 decision. It is now brought the third time before us on briefs which 
 cite no authorities, and suggest no reasons which have not already 
 been considered by the Court, or which show that the original case 
 was decided contrary to principle. The matter here is the Constitu- 
 tionality of a statute, and the rule is said to be almost universal that 
 in construing statutes and the Constitution, to adhere to the doctrine 
 of stare decisis. (Seale v. Michell, 5 Cal. 481.) Certainly Courts nat- 
 urally feel reluctant to depart from a decision which has been recog- 
 nized by subsequent cases, unless error is plainly shown to exist, con- 
 ceding even that a different conclusion might be reached, if the ques- 
 tion presented were an open one. We have carefully examined the 
 reasons on which the decision in East Portland v. Multnomah County 
 is based and, as at present advised, reaffirm it by affirming the 
 decision in this case. So it is ordered." 
 
 Do the amendments of 1906 aboHsh this appHcation of 
 stare decisis? If so, may not the Oregon Constitution be 
 amended by the initiative so that stare decisis will be abolished 
 altogether ? It appears to have been set aside by the Supreme 
 Court as applied to the exercise of the powers of Eminent 
 Domain by cities and towns. 
 
 In Portland, etc., R. R. Co. v. City of Portland, 14 Ogn. 
 194, Mr. Chief Justice Lord said : 
 
 "The interest in the use of streets and highways, and public 
 places, and their uses, being publici juris, the power of regulating 
 such use is in the Legislature, as the representative of the whole 
 people. It is a part of the political or governmental power of the 
 State, in no way held in subordination to the municipal corporation. 
 It has, therefore, been held in many cases that the Legislature has 
 the power to authorize the building of a railroad on a street or high- 
 
12 
 
 way, and may directly exercise this power, or devolve it upon munici- 
 pal authorities. (Moses v. Railway Co., 21 111. 516; Murphy v. Chi- 
 cago, 29 111. 279; Mercer v. Railway Co., 36 Pa. St. 99; Springfield v. 
 Railroad Co., 4 Cush. 63; People v. Kerr, 27 N. Y. 18S; Lackland v. 
 Railroad Co., 31 Mo. 180; City of Clinton v. Railroad Co., supra.)" 
 
 In Simon v. Northrup, 27 Ogn. 427, Mr. Chief Justice 
 Bean said (pages 501, 502) : 
 
 "The law is too well settled to be questioned that the public 
 highways of a city are not the private property of the municipality, 
 but are for the use of the general public, and that, as the Legislature 
 is the representative of the public at large, it has, in the absence of 
 any Constitutional restriction, paramount authority over such ways, 
 and may grant the use or supervision and control thereof to some 
 other governmental agency, so long as they are not diverted to some 
 use substantially different from that for which they were originally 
 intended: 2 Dillon on Municipal Corporations, 656, and authorities 
 there cited; Cooley on Constitutional Limitations (5th Ed.), 335, and 
 note." 
 
 On page 502 he said : 
 
 "A city occupies, as it were, a dual relation to the State — the one 
 governmental or political, and the other proprietary or private. In its 
 governmental or political capacity it is nothing more than a mere 
 governmental agent, subject to the absolute control of the Legisla- 
 ture, except as restricted by the Constitution, and such property and 
 easements as it may have in public streets and ways is held by it 
 in such capacity, and at the will of the Legislature." 
 
 And on page 504 he said : 
 
 "It is competent for the Legislature, in the exercise of its plenary 
 powers over public highways of the City of Portland, to transfer the 
 management and control of the bridges and ferries in question from 
 the Commission appointed by it to the county, and to determine and 
 provide the mode in which the burden of maintaining and keeping 
 them in repair shall be borne in the future." 
 
 Third, Rights in Navigable Rivers 
 Wholly Within a State 
 
 By a number of decisions the United States Supreme Court 
 has estabhshed the law relating to navigable rivers wholly 
 within a State. The earlier decisions were made before Con- 
 gress passed any law on the subject. 
 
 In the case of Willamette Iron Bridge Co. v. Hatch, 125 
 U. S. I, it was held that the provision in the "act for the 
 admission of Oregon into the Union," 11 Stat. 383, c. 33, Sec. 
 
13 
 
 2, that "all the navigable waters of said State shall be com- 
 mon highways and forever free, as well to the inhabitants of 
 said State as to all other citizens of the United States, with- 
 out any tax, duty, impost or toll therefor," does not refer to 
 physical obstructions of those waters, but to political regula- 
 tions which would hamper the freedom of commerce. 
 
 On page lo, Mr. Justice Bradley, referring to the above 
 quotation from the act for the admission of Oregon into the 
 Union, said : 
 
 "It is obvious that if the clause in question does prohibit physical 
 obstructions and impediments in navigable waters, the State Legis- 
 lature itself, in a State where the clause is in force, would not have 
 the power to cause or authorize such obstructions to be made without 
 the consent of Congress. But it is well settled that the Legislatures 
 of such States do have the same power to authorize the erection of 
 bridges, dams, etc., in and upon the navigable waters wholly within 
 their limits, as have the original States, in reference to which no 
 clause exists." 
 
 And on page 12 he said : 
 
 "Until Congress acts, the States have the plenary power supposed, 
 yet, when Congress chooses to act, it is not concluded by anything 
 that the States, or that individuals by its authority or acquiescence, 
 have done, from assuming entire control of the matter, and abating 
 any erections that may have been made, and preventing any others 
 from being made, except in conformity with such regulations as it 
 may impose.' 
 
 This was prior to the Act of Congress of March 3, 1899, 
 relating to the construction of bridges, etc., in navigable 
 streams. This act has been amended by several acts of 
 Congress. 
 
 In the case of Lake Shore & Michigan Ry. Co. v. Ohio, 
 165 U. S. 365, the Act of Congress of September 19, 1890, 
 was involved. Section 7 of this act provides that it shall be 
 unlawful to commence the construction of any bridge, etc., in 
 any navigable river, etc., "under any act of the Legislative 
 Assembly of any State until the location and plan of such 
 bridge or other work have been submitted to or approved by 
 the Secretary of War." It was held that said act did not 
 deprive a State of authority to bridge such a river, but created 
 an additional remedy to prevent such a bridge from interfer- 
 ing with commerce. I have not found any act of Congress 
 
14 
 
 which allows the assent of the State to- be exercised except 
 under an act of its Legislative Assembly. 
 
 In Cummings v. Chicago, i88 U. S. 411, it was held that 
 under existing legislation the right to erect a structure in a 
 navigable river, wholly within the limits of a State, depends 
 upon the concurrent or joint assent of the State and National 
 Governments acting by their constituted agencies. 
 
 In Montgomery v. Portland, 190 U, S. 89, the case of 
 Cummings v. Chicago, supra, was expressly affirmed. On 
 page 106, Mr. Justice Harlan said: 
 
 "Upon the authority, then, of Cummings v. City of Chicago and 
 the cases therein cited — to which we may add Willamette Bridge Co. 
 V. Hatch, 125 U. S. 1 — we hold that, under existing enactments, the 
 right of private persons to erect structures in a navigable water of 
 the United States that is entirely within the limits of a State, cannot 
 be said to be complete and absolute without the concurrent or joint 
 assent of both the General and State Governments." 
 
 It therefore appears that so far as a State is concerned 
 it must in its sovereign capacity as a State and by its Legis- 
 lature give its assent or authority for the construction of a 
 bridge over a navigable river wholly within its boundaries. 
 
 I have thus set forth what I believe to be the law in Ore- 
 gon on the three subjects, viz. : Eminent Domain, power to 
 grant franchises and control of highways, and relating to 
 bridges across navigable rivers wholly within a State at the 
 time the amendments of 1906 were adopted. 
 
 It is now contended that the amendments of 1906 have 
 rendered nugatory and made void and of no effect the law on 
 these three subjects, as they existed at that time. This con- 
 tention is based on the facts that, by these amendments, the 
 people of a municipality are granted the power "to enact and 
 amend their charter," although no definition is made of what 
 a charter is, and that these amendments give to each city and 
 town in Oregon the right tO' exercise these sovereign powers 
 equal or superior to^ the State itself, at least within their 
 respective corporate limits. 
 
 It has, heretofore, been thought that the exercise of these 
 sovereign powers should be granted only after careful consid- 
 
15 
 
 ration by the Leg-islature, as the representative of the whole 
 State and of all of its people, and that no community had, or 
 should have, the right tO' exercise, without limitations, these 
 powers, which might be used to the detriment of all the rest 
 of the State. 
 
 Decisions of the Oregon Supreme Court on the 
 
 Initiative and Referendum Powers to be 
 
 Exercised by a Municipality 
 
 The validity of the amendment of Section i of Article IV 
 of the Oregon Constitution was sustained in Kadderly v. Port 
 of Portland, 44 Ogn. 118. 
 
 In the case of Stevens v. Benson, 50 Ogn. 269, decided 
 September 3, 1907, it was held that said amended Section i 
 of Article IV of the Constitution is self-executing. On page 
 274 it is said : 
 
 "The Legislature may enact laws to facilitate the enforcement of 
 Constitutional provisions that are self-executing, and such laws will 
 be obligatory upon the Court when intended by the Legislature to be 
 mandatory, so long as they do not curtail the rights reserved or 
 exceed the limitations specified therein." 
 
 In the case of State v. Langworthy, 104 Pac. 424 (not 
 yet reported in the State Reports), decided October 26, 1909, 
 it is said : 
 
 "It is manifest from the provisions of this amendment" (Section 
 1 of Article IV) "that it was intended to be self-executing; that is, 
 its provisions were designed to become effective without awaiting 
 legislative aid. Under such circumstances supplemental laws are not 
 a prerequisite to the effectiveness of a Constitutional provision, and 
 the people may proceed in accordance therewith until aided by such 
 additional enactments as the law-making department of the State 
 may provide." 
 
 As neither of these two decisions refer tO' the number or 
 percentage of voters necessary to sign an initiative petition, 
 and as the Supreme Court declared said Section i self-exe- 
 cuting, and as there is no law on the subject, we are left in 
 doubt as to the number or percentage of voters necessary to 
 sign an initiative petition under that section. Whether the 
 words, "Not more than eight per cent of the legal voters" 
 should be construed to mean "not less than eight per cent of 
 
i6 
 
 the legal voters," or whether they mean any number less than 
 eight per cent, or any number not exceeding eight per cent, 
 has not been decided. Literally, "not more than eight per 
 cent" may m.ean one voter or two, or half a dozen. 
 
 In the cases of McKenna v. The City of Portland, 52 Ogn. 
 191, and Farrell v. The Port of Portland, 52 Ogn. 582, it was 
 held that the amendments of 1906 must be construed together. 
 
 It will be noted that said Section la of Article IV pro- 
 vides that : 
 
 "The manner of exercising said powers" (initiative and referen- 
 dum), "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." 
 
 It has been held by the Supreme Court of Oregon that 
 the provisions of said Section la, so far as municipal corpora- 
 tions are concerned, are not self-executing, in the following 
 cases : 
 
 In the case of the Acme Dairy Company v. City of Astoria, 
 49 Ogn. 520, the Common Council of Astoria, prior to the 
 passage of the law of 1907, amended the charter of the city, 
 without action by the legal voters of Astoria, so as to pro- 
 vide the manner of exercising the initiative and referendum 
 powers by the people. The Supreme Court held that the Com- 
 mon Council had such power. In deciding this case Mr. 
 Justice Moore, referring to said Section i a of Article IV, said : 
 
 "The right reserved by the Constitutional amendment is not self- 
 executing, and cannot be carried into efifect in the absence of a general 
 statute prescribing the mode of its exercise." 
 
 In the case of McKenna v. City of Portland, 52 Ogn. 191, 
 Mr. Chief Justice Bean, referring to the amendments of 1906, 
 on page 194, said : 
 
 "As no provision is made therein for the manner of exercising 
 the power thus conferred, some law upon the subject was necessary to 
 make it effective, and the law of 1907 was adopted for that purpose." 
 
 It was further held, in that case, that at that time, there 
 being no legislation of the City of Portland conflicting with 
 the provisions of said law of 1907, the Council of Portland 
 having initiated and submitted an amendmient to the charter 
 
17 
 
 of Portland on its own motion, which was adopted by its 
 people, that such charter amendment was properly submitted. 
 
 In the case of Long v. City of Portland, 53 Ogn. 92, Mr. 
 Justice Eakin, on page 96, said : 
 
 "Section la of Article IV of the Constitution is not self-executing, 
 for the reason that it makes no provision as to its enforcement. It 
 only declares or resrves the right, without laying down rules, by 
 means of which this right may be given the force of law. (Citing 
 cases.) It contains no provisions as to the time and place of filing 
 the petition, nor the time when, or manner in which, the law voted 
 upon shall take effect." 
 
 In the case of State ex. rel. Bradford v. Portland Raih<t;ay 
 Light and Power Company, 107 Pac. 958 (not yet reported 
 in the Oregon Reports), Mr. Justice Slater said: 
 
 "The amendment to the Constitution, above quoted, reserves to 
 the people of every municipality, city or town the general right of 
 referendum, as to municpial legislation, without laying down rules 
 by means of which such right may become effective, or be in force; 
 and, therefore, it is not self-operative. (Long v, Portland, 98 Pac. 149, 
 150.) But the amendment does declare that the manner of exercising 
 the power granted shall be prescribed by general laws, except that 
 cities and towns may provide for the manner of exercising the same, 
 as to their municipal legislation." 
 
 In the case of Kiernan v. City of Portland, 1 1 1 Pac. Rep. 
 379, which I shall refer to as "the Kiernan case," decided by 
 the Oregon Supreme Court November 2, 191 o, Mr. Justice 
 McBride, in his opinion, quotes with approval the decision of 
 the Supreme Court in Acme Dairy Company v. City of 
 Astoria, supra, that said initiative amendment relating to 
 cities is not self-executing. So it may be said to be well 
 established that the initiative powers under the amendments 
 of 1906 are not self-executing, and require some law, either 
 by the Legislature or by the municipality itself, to put the 
 same into force or effect. 
 
 It is strange, but true, that neither in the act of 1903, 
 relating to initiative petitions under Section i of Article IV 
 of the Constitution, nor in the act of 1907, relating to initi- 
 ative petitions under said Section i and under said Section la 
 of Article IV, was any provision made for the number of sig- 
 natures to an initiative petition. Section 13 of the Act of 
 1907 provides : 
 
i8 
 
 "Any person who is a qualified elector of the State of Oregon may- 
 sign a petition for the referendum or for the initiative for any 
 measure which he is legally entitled to vote upon." 
 
 Section ii of the Act of 1907 provides: 
 
 "Referendum petitions against any ordinance, franchise or resolu- 
 tion passed by the City Council shall be signed by not less than ten 
 per cent of the voters of said city, and said signatures shall be veri- 
 fied in the manner herein provided." 
 
 But there is nothing in the act saying- in what manner the 
 signatures shall be verified, nor how the number of legal voters 
 shall be determined. It is true that in said Section i of 
 Article IV a provision is made for ascertaining the number 
 of voters by providing that : 
 
 "The whole number of votes cast for Justice of the Supreme Court 
 at the regular election last preceding the filing of any petition for 
 the initiative or for the referendum shall be the basis on which the 
 number of legal voters necessary to sign such petition shall be 
 counted." 
 
 But this applies only to initiative and referendum petitions 
 for amendments of the Constitution or on legislation by the 
 people of the whole State. 
 
 In said Section la of Article IV it is provided: 
 
 "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 munici- 
 pal legislation, of every character, in or for their respective munici- 
 palities and districts. The manner of exercising said powers shall 
 be prescribed by general laws, except that cities and towns may pro- 
 vide for the manner of exercising the initiative and referendum powers 
 as to their municipal legislation." 
 
 So it will be seen that while the initiative and referendum 
 powers are granted to the people of a municipality, the man- 
 ner O'i the exercise of these powers is not provided in Section 
 I of Article IV, and is of no force in regard to initiative and 
 referendum petitions under Section la until there be appro- 
 priate legislation on the subject. 
 
 Until appropriate legislation is had providing how many 
 voters shall sign an initiative petition under Section i of 
 Article IV, and also as regards the number of signatures 
 to an initiative petition under Section la, or until the 
 
19 
 
 Supreme Court shall make some decision on this question, 
 this question is unsettled. The Supreme Court, of course, may- 
 decide that no more than eight per cent, and not more than 
 fifteen per cent means not less than eight per cent, and not less 
 than fifteen per cent, respectively, or it may hold that any 
 number less than such percentage would be sufficient under 
 an initiative petition. But as the Supreme Court has held, in 
 the cases I have cited, that Section la of Article IV is not 
 self -executing, it would seem that the logical result would be 
 that no initiative petition could be filed until there be some law 
 of the State or some ordinance adopted by a city, or by 
 amendment of its charter, providing the percentage of voters 
 necessary to sign an initiative petition under said Section la, 
 and that the provision, in said Section la, that not more than 
 fifteen per cent of the legal voters may be required to pro- 
 pose any measure, by the initiative, in any city or town, is 
 not a determination of the number of the legal voters neces- 
 sary to sign such an initiative petition, but is a limitation on 
 the number or percentage of voters which shall be required by 
 any general law of the State or by an ordinance of a city or 
 town on the subject, i. e., that such a law or ordinance shall 
 not require "more than fifteen per cent" (of the legal voters) 
 "to propose any measure, by the initiative, in any city or town." 
 
 In this connection, attention is called to the decision in 
 the case of Long v. City of Portland, supra, in which Mr. 
 Justice Eakin, on page 96, said : 
 
 "Section la of Article IV of the Constitution is not self-executing, 
 for the reason that it makes no provision as to its enforcement. It 
 only declares or reserves the right, without laying down rules, by 
 which this right may be given the force of law. (Citing cases.) It 
 contains no provisions as to the time and place of filing the petition, 
 nor the time when, or the manner in which, the law voted upon shall 
 take efifect." 
 
 What is known as the McNary Ordinance, adopted by the 
 Council of Portland, has made provision for the filing of ini- 
 tiative and referendum petitions in the City of Portland. Sec- 
 tion 9 of this ordinance provides that an initiative petition, as 
 well as a referendum petition 
 
 "Shall be signed by a number of legal voters equal to fifteen per 
 cent of the votes cast at the last preceding election." 
 
20 
 
 It should be borne in mind that said Section la provides 
 that "not more than ten per cent of the legal voters may be 
 required to order a referendum." So there is a conflict 
 between the McNary ordinance and the Constitution, although 
 the provisions of Section ii of the Act of 1907 may apply, 
 which provides that "referendum petitions against any ordi- 
 nance, franchise or resolution passed by a City Council shall 
 be signed by not less than ten per cent of the voters of said 
 city." The Supreme Court might hold that Portland, having 
 adopted the McNary ordinance, the void provision would not 
 be enforced under the Act of 1907. 
 
 Section 5 of said McNary ordinance provides that the 
 Auditor of Portland "shall verify the signatures and voting 
 qualifications of the persons signing the same" (referendum 
 and initiative petitions), "by reference to the registration 
 books in the office of the County Clerk of Multnomah County." 
 
 This is a recognition that the whole number of votes cast 
 for Justice of the Supreme Court at the general election last 
 preceding the filing of any petition, does not apply to said 
 Section la of Article IV. 
 
 The Supreme Court of Oregon has also passed on the ques- 
 tion as to the rights of the Legislature and of the people of a 
 municipal corporation to alter, amend or repeal its charter or 
 act of incorporation. Without such decisions, it would appear 
 that it was the intention of the people adopting the amend- 
 ment of Section 2 of Article XI of the Constitution, that the 
 Legislature could not in any way enact, amend or repeal the 
 charter of any municipality in the State of Oregon. Earlier 
 cases so decided. 
 
 In Acme Dairy Company v. City of Astoria, supra, Mr. 
 Justice Moore, referring to^ Section 2 of Article XI, as 
 amended, said : 
 
 "It will thus be seen that this change in the organic law deprives 
 the Legislative Assembly of all authority to enact, amend or repeal 
 any charter of a city or town, the legal voters of which reserve to 
 themselves the exercise of all such powers, except the right of repeal." 
 
 In City of Eugene v. Willamette Valley Co., 52 Ogn. 490, 
 Mr. Justice Moore, referring to said Section 2 of Article XI, 
 as amended, said : 
 
21 
 
 "It will thus be seen that the Legislative Assembly has been 
 deprived of the power specified, which is reserved to, and may be 
 exercised by the legal voters of a city or town. As the Legislature 
 could, heretofore, have changed a municipal charter or altered any 
 part of it, except that vested rights could not be impaired or destroyed, 
 it would seem necessarily to follow that, under the amended clause 
 of the Organic Act quoted, the qualified voters of every town and 
 city possessed the same measure of power." 
 
 In Farrell v. The Port of Portland, supra, Mr. Justice Bean, 
 referring to the amendments of 1906, said : 
 
 "The manifest purpose, so far as it concerns the question now 
 under consideration, was to take from the Legislature and vest in 
 the people the power to amend municipal charters and acts govern- 
 ing and defining the powers and duties of all municipal corporations." 
 
 In Long V. City of Portland, supra, it was held that Sec- 
 tion II of the Act of 1907, which provides that no city ordi- 
 nance 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, in effect, amends the charter of the 
 City of Portland, for the reason that the right of the referen- 
 dum is reserved to the people of the city regardless of any 
 provisions of its charter, and that this right is superior to the 
 charter, and that the amendments of 1906 and said Section 11 
 of the Act of 1907, to give the referendum force, did amend 
 the charter of the City of Portland. 
 
 As I have set forth in the beginning, that, having no 
 established precedents in these innovations by the initiative 
 and referendum powers in the Constitution, it is difficult to 
 make them workable. It is somewhat like navigating a ship 
 in the open sea without chart, compass 6r chronometer. • It 
 is true that under such circumstances a skillful mariner, with 
 proper instruments, by observations of the sun, moon and 
 stars, might navigate, but it would be difficult, and the liability 
 to make errors would be great. It is a hard matter for any 
 Court, without precedent, to take into account what may be 
 the effect of a decision or opinion in one case on other cases 
 or matters not before decided by any Court. And this is 
 largely the position the Oregon Courts find themselves in. 
 When the Supreme Court found what the effect M^ould be in 
 
22 
 
 holding- that the Legislature could not enact, amend or repeal 
 any municipal charter in the State, and that a municipality 
 might attempt to exercise powers in derogation of the sover- 
 eignty of the State itself, it became a serious matter. As a 
 result we have, the somewhat remarkable decision, in the case 
 of Straw V. Harris, 54 Ogn. 424, decided August 24, 1909. 
 
 The facts in this case are as follows : 
 
 The Legislature enacted a law at its session in 1909 
 entitled : 
 
 "An act to provide for incorporation under general law of ports in 
 counties bordering upon bays or rivers navigable from the sea or 
 containing bays or rivers navigable from the sea, and to provide for 
 the manner of incorporating such ports and defining the powers of 
 ports so incorporated, and declaring an emergency." 
 
 Under the provisions of this act the Port of Coos Bay was 
 incorporated, which included within its boundaries the incor- 
 porated towns of North Bend, Marshlield, East Marshfield 
 and Empire City, in one of which a majority voted against 
 the organization of the Port. The principal question in this 
 case was the constitutionality of said Legislative Act, under 
 which the Port was incorporated, as it was contended that 
 the effect thereof was not only to amend, but to repeal parts 
 of the charters of the municipalities thus included, in viola- 
 tion of Section 2 of Article XI, as amended, of the Consti- 
 tution of Oregon. 
 
 Two' main points were decided in Straw v. Harris: 
 
 First. That under the initiative and referendum amend- 
 ments of the Constitution there are two separate and distinct 
 law-m.aking bodies, each equal, viz. : The Legislature and the 
 people. 
 
 Second. That the State has not surrendered its sover- 
 eignty to the municipalities to the extent that the State has 
 lost control of the municipalities. 
 
 In the opinion, Mr. Justice King, on page 431, said: 
 
 "By the adoption of the initiative and referendum into our Con- 
 stitution, the legislative department of the State is divided into two 
 separate and distinct law-making bodies. There remains, however, 
 as formerly, but one legislative department of the State. It operates, 
 
23 
 
 it is true, differently than before — one method by the enactment of 
 laws directly, through that source of all legislative pov/er, the 
 people; and the other, as formerly, by their representatives — but the 
 change this wrought neither gives to nor takes from the Legislative 
 Assembly the power to enact or repeal any law, except in such man- 
 ner and to such extent as may therein be expressly stated. Nor do 
 we understand that it was ever intended that it should do so. The 
 powers thus reserved to the people merely took from the Legislature 
 the exclusive right to enact laws, at the same time, leaving it a co-or- 
 dinate legislative body with them. This dual system of making and 
 unmaking laws has become the settled policy of the State, and so rec- 
 ognized by decisions upon the subject. Kadderly v. Portland, 44 Ogn. 
 118 (74 Pac. 710; 75 Pac. 222); Oregon v. Pac. Sta. T. & T. Co., 53 
 Ogn. 162 (99 Pac. 427). 
 
 "Subject to the exceptions enumerated in the Constitution, as 
 amended, either branch of the legislative department, whether the 
 people, or their representatives, may enact any law, and may even 
 repeal any act passed by the other. One of these exceptions relates 
 to the invoking of the referendum and the other to the provision in 
 the amendment quoted, which takes from the Legislature the 
 right to create corporations by special laws; otherwise there is no 
 distinction." 
 
 And on page 437, Mr. Justice King further said : 
 
 "The State, therefore, regardless of any declarations in its Consti- 
 tution 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 Legis- 
 lature 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 adopt- 
 ing the latter method." 
 
 These statements of the law hardly agree with the state- 
 ment later in the opinion that the State has not surrendered 
 to the municipalities its control over them. 
 
 Instead of two law-making bodies there would seem to be 
 three, or, possibly, four: 
 
 First. The Legislature, 
 
 Second. The people of the whole State, 
 
 Third. The people of a municipality, 
 
 Fourth. The Common Council or Commissioners of a 
 municipality. 
 
 The holding that the people and Legislature may each 
 "enact any law and may even repeal any act passed by the 
 
24 
 
 other," shows to what a dangerous condition these initiative 
 amendments of the Constitution have brought the State of 
 Oregon. It is a condition similar to that which would occur 
 if the sole legislative body of a State was composed of two 
 houses which did not have to concur to enact a law, and each 
 could enact laws to the exclusion of the other, "and even repeal 
 any act passed by the other." 
 
 Suppose that in the State of Oregon two antagonistic acts 
 were passed, one by the Legislature, the other by the people, 
 and these two acts when into effect the same day. What 
 would be the result? It would be like the celebrated case of 
 an irresistible force meeting an immovable body. Will not 
 the Legislature become as useless as a vermiform appendix is 
 to a human being? It may have some functions, but it is 
 apparently a menace. Would it not be well to cut it out before 
 it becomes dangerous ? 
 
 In the case of Straw v. Harris, supra, on page 436, Mr. 
 Justice King also said : 
 
 "True, the language used in the amendments considered would 
 appear to give to incorporated cities the exclusive control and man- 
 agement of their own affairs, even to the extent, if desired, of legis- 
 lating within their borders without limit, to the exclusion of the State. 
 But, as stated, these provisions must be construed in connection with 
 others of our fundamental laws, which can but lead to the conclusion 
 above announced; and whatever may be the literal import of the 
 amendments it cannot be held that the State has surrendered its 
 sovereignty to the municipalities to the extent that it must be deemed 
 to have perpetually lost control over them. This no State can do. 
 The logical sequence of a judicial interpretation to such effect would 
 amount to a recognition of a State's independent right of dissolution. 
 It would brt lead to sovereigntial suicide. It would result in the 
 creation of States within the State, and eventually in the surrender 
 of all State sovereignty — all of which is expressly inhibited by Article 
 IV, Section 3, of our National Constitution." 
 
 The part of Section 3 of Article IV of the Constitution of 
 the United States referred tO' by Mr. Justice King is as fol- 
 lows, viz. : 
 
 "No new State shall be formed or erected within the jurisdiction 
 of any other State." 
 
 It is to be regretted that the opinion merely stated a gen- 
 eral principle without going into details or citing instances, 
 
25 
 
 e. g., the exercise of the right of Eminent Domain ; or the con- 
 trol of streets and other highways, or the granting of fran- 
 chises under powers given to a municipahty by initiative pro- 
 ceedings of its legal voters, which it did not have before; or 
 whether a port could not, by initiative proceedings, give itself 
 all the powers of a city, and by being larger than a city, and 
 in the case of the Port of Coos Bay, including four towns, 
 take to itself and exercise supremacy over any and all cities 
 and towns within the boundaries of a port. It must be borne 
 in mind that in the case of Farrell v. Port of Portland, supra, 
 it was held that the voters of a port could amend its charter or 
 the act of its incorporation, for it is a municipal corporation, 
 and no limitation is placed on its powers or right to amend 
 its charter and give itself additional powers. The amendment 
 of its charter, in question in that case, gave the Port of Port- 
 land largely increased powers. As it includes all of the City 
 of Portland, and more, may it not practically, by initiative 
 amendments, make itself superior to the City of Portland and 
 grant franchises, and exercise the right of Eminent Domain 
 in the City of Portland superior to the latter. There is no 
 limitation on the power of any city, town, port or other 
 municipal corporation to give itself additional powers, except- 
 ing that in Straw v. Harris it was held a municipality could 
 not exercise a sovereignty superior tO' the State of Oregon. 
 And it was also held that the Legislature could take away this 
 power. But the Port could give itself the power again at 
 the next general election, or at a special election, which could 
 be held by the Commissioners of the Port of Portland amend- 
 ing its charter in a manner similar to that used by the City 
 of Astoria, as appears in the case of Acme Dairy Company v. 
 Astoria, supra, and that used by the Port of Portland, as 
 appears in the case of Farrell v. Port of Portland, supra. 
 
 Moreover, in Straw v. Harris, it was held that the rights 
 of a port are superior to that of a city or town. On pages 
 435-436 in the decision of the Oregon Supreme Court, Mr. 
 Justice King said : 
 
 "We find that the Constitution, by permitting, through general 
 laws, the exercise by municipalities of greater and more extensive 
 prerogatives for other and diflferent purposes, including the forma- 
 tion of ports, has thereby delegated to such larger districts the right 
 
26 
 
 to take such steps as may be essential to the carrying out of the gen- 
 eral purpose and object of their creation. The exercise of this privi- 
 lege does not necessitate the elimination of the city governments, nor 
 of any substantial part of them, within any of the territory included; 
 nor does it in any respect interfere with the general object or purpose 
 for which the included corporations were established. It may have 
 the effect, it is true, of taking from them the control of wharves and 
 docks, as well as some other privileges, whenever and wherever the 
 exercise thereof becomes inconsistent with the object for which the 
 port is incorporated." 
 
 But what would take place if the Port of Portland should 
 give itself rights and powers superior toi those of the City 
 of Portland? Or if the latter should attempt to amend its 
 charter so as to make it equal tO' or superior to the Port of 
 Portland? Apparently each has the right to give itself all 
 sovereign powers as against the other. It is only when a 
 municipality interferes with the sovereignty of the State that 
 the State can interfere. Just what such an interference is 
 does not yet appear. Apparently it is not by a municipality 
 giving- itself powers of Eminent Domain, or the power to 
 grant franchises over the highways of the State, or tO' build 
 bridges across a navigable river without the consent of the 
 State. 
 
 There have been but two later decisions only on this ques- 
 tion by the Supreme Court of Oregon. 
 
 One of these decisions is City of McMinnville v. Howen- 
 stine, 109 Pac. Rep. 81 (not yet reported in the Oregon 
 Reports), decided June 7, 1910. 
 
 In this case the City of McMinnville, by initiative amend- 
 ment of its charter, gave itself the right to appropriate, under 
 Eminent Domain, lands outside of the city for water works. 
 Two opinions were written in this case. One held that under 
 the amendments of 1906 the legal voters of a city or town 
 might give it the right to exercise the power of Eminent 
 Domain within and without its limits. And so the City of 
 McMinniville might give itself these sovereign powers with- 
 out authority from the Legislature. And that the right tO' 
 enact or amend the charter of a city or town gives it the 
 right, by amendment of its charter, to give itself the sovereign 
 right to appropriate under the powers of Eminent Domain, 
 lands to be used by such city or town under its functions as 
 
27 
 
 a proprietor. The other opinion dissented from the first 
 opinion, but held that under a general law of the Oregon 
 Legislature, passed in 1891, prior to the adoption of any ini- 
 tiative amendment to the Oregon Constitution, the City of 
 McMinnville had the right to appropriate lands for water 
 works outside of its corporate limits. The effect of each of 
 the two decisions was that the land could be appropriated. 
 As to the views of the majority of the Supreme Court on this 
 question, we are left in doubt, for the majority of the Court 
 announced that they "concur in the conclusion reached in each 
 of the foregoing opinions," the conclusions being the same. 
 
 The other case is that of Kiernan v. City of Portland et al., 
 decided November 2, 1910, iii Pac. Rep. 379. The facts in 
 this case are that, by amendment of its charter under the 
 amendments of 1906, the City of Portland gave itself the 
 power and right to construct a bridge over the Willamette 
 River, a navigable river wholly within the State of Oregon, 
 without being specifically authorized thereto by the Legisla- 
 ture. There were two opinions rendered, the majority of the 
 Court evidently concurring in the result, without announce- 
 ment. In one of these opinions it is said : 
 
 "The people of this State by the Constitutional amendment, here- 
 tofore quoted, have seen fit to confer upon municipal corporations 
 the right to enact their own charters, the only limitation upon that 
 right being that such charters shall not conflict with the Constitution 
 or the criminal laws of this State. We take it, therefore, that within 
 the limits of the municipality, and for those purposes which are purely 
 municipal, the City of Portland may include in its charter by amend- 
 ment any provision or right that the Legislature might have granted 
 before the Constitution was so amended. This being so, there is fair 
 ground for the contention that the city may, by amendment to its 
 charter, obtain the right to locate a public bridge over the Willamette 
 River at any point where such river is exclusively within the munici- 
 pal boundaries, which is the case here." 
 
 In the other opinion it is said : 
 
 "Section IIS]^' (passed pursuant to a Constitutional amendment) 
 delegates to cities all the sovereignty of the State within their munici- 
 pal boundaries, so far as that sovereignty relates to matters of purely 
 municipal concern. Such grants of sovereignty, however, may be 
 recalled by the power conferring them. (Straw v. Harris, 54 Ogn. 
 424), and this power of recall serves to prevent the abuse of the privi- 
 leges delegated." 
 
28 
 
 But is constructing a bridg-e over a navigable river a mat- 
 ter of "purely municipal concern?" Is it not a concern of the 
 whole of Oregon and all of its people? 
 
 Section ii8>4, referred to in the latter opinion, is an initia- 
 tive amendment of its charter adopted by the voters of the City 
 of Portland June 7, 1909, authorizing the construction of what 
 is known as the "Broadway Street Bridge." It authorized 
 the issue of $2,000,000.00 in bonds for the construction of the 
 bridge over the Willamette River and empowered the City 
 of Portland to appropriate and condemn all property, includ- 
 ing franchises, which the "Executive Board, or its successors, 
 may require to carry into effect this Section" (118^). 
 
 In each of these opinions it is said that Section 76 of the 
 Charter of Portland, passed by the Legislature in 1903, gave 
 the povt^er to the City of Portland to construct bridges over 
 the Willamette River. 
 
 Section ^6 of the Portland charter provides that: 
 
 "The Council of the City of Portland shall, at all times, under the 
 limitations herein set out have power to provide ***** fQ,- the 
 acquisition, ownership, construction and maintenance of * * * * * 
 bridges and ferries and such other public utilities as the Council may 
 designate; provided, however, save as otherwise prescribed in this 
 charter, no contract or agreement for the purchase, condemnation, 
 ownership, construction or operation by the city, of any public utility 
 shall be entered into by the Council without first submitting such 
 proposed contract or agreement to the qualified voters of the city, in 
 accordance with the provisions of this article." 
 
 While it might otherwise appear that the initiative amend- 
 ment 118^ of the Portland charter does not refer to Section 
 76 of that charter, but is a distinct addition to the charter and 
 the right to build this bridge is wholly under said Section 
 118^, and was not exercised under said Section 76 or under 
 any other amendment thereof, the decision of the Supreme 
 Court apparently determines the matter, althoug-li prior to 
 this decision there was some question as to whether the city 
 had more than a bare recognition of a right tO' construct 
 bridges, for there is no- grant under the charter of the City 
 of Portland or by an act of the Legislature, prior to the 
 passage of the amendment of the Portland charter, complained 
 of in the Kiernan case, which authorized in express terms the 
 
29 
 
 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, 
 574J 
 
 Limitations of a City's Indebtedness 
 
 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 munici- 
 pality, 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 amend- 
 ments 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 amend- 
 ments 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 
 
30 
 
 this Section 5 of Article XI was repealed by the amendments 
 of 1906, or that by amendment of its charter by the people 
 of Portland, this limitation would be amended or repealed. 
 
 It is but additional evidence showing the imprudence of 
 initiative measures when such a question is left in doubt. 
 
 The Effect of the Kieman Case 
 
 If these two opinions in the Kiernan case are those of the 
 whole Supreme Court of Oregon then it may be said that, 
 under the amendments of 1906, a city may, by initiative amend- 
 ment of its charter, give itself the right to exercise, within 
 its corporate limits, the power of Eminent Domain, and to 
 construct bridges and other obstructions in a navigable river 
 wholly within the State without authority from the Legisla- 
 ture or from the people of the rest of the State who may be 
 affected thereby, and without the sanction of Congress. 
 
 The main points decided in the Kiernan case are, that the 
 power to construct bridges was given by the Legislature by 
 Section 76 of Portland's charter, and that "there is fair ground 
 for the contention that the city may, by amendment of its 
 charter, obtain the right to erect a public bridge over the 
 Willamette River at any point where such river is exclusively 
 within the municipal boundaries," and that the "City of Port- 
 land may include in its charter, by amendment, any provision 
 or right that the Legislature might have granted before the 
 Constitution was so amended," and that the construction of 
 a bridge over the Willamette River is "purely municipal," 
 and further, that a taxpayer cannot raise the question as to 
 whether such a bridge is against the acts of Congress relating 
 to navigable streams. 
 
 What will the Supreme Court of the United States say 
 as tO' the right of the City of Portland to build such a bridge, 
 considering the Act of Congress of September 19, 1890? 
 
 If Portland should cause a bridge to be erected at each 
 street, or most of the streets, abutting on the Willamette River 
 it would practically confiscate all deep water front on the 
 Willamette River as far south as the rapids at the mouth of 
 the Clackamas River, and be of great detriment to the people 
 of the Willamette Valley outside of Portland and prejudicial 
 
31 
 
 to the rights of the cities of Oswego, Oregon City, Salem, 
 Albany, Corvallis and Eugene. 
 
 But what will the Portland people say if a city or town 
 between Portland and the mouth of the Willamette River 
 should erect enough bridges practically to interfere with, or 
 prevent ships coming to Portland? It might be desired, by 
 owners of properties along Columbia slough, to have this 
 done and make all shipping use that slough, when it is deep- 
 ened by dredging, to the exclusion of the harbor at Portland. 
 
 In one of the opinions in the Kiernan case, referring to 
 the right of a city to erect bridges over a navigable river, it 
 is said : 
 
 "Such grants of sovereignty, however, may be recalled by the 
 power conferring them (Straw v. Harris, 54 Ogn. 424), and this power 
 of recall serves to prevent the abuse of the privileges delegated." 
 
 But could such a recall prevent the abuse after the bridges 
 were erected? Such a law could not be a special one. It 
 would have to be a general one, as was decided in Strazu v. 
 Harris. It is possible, at least, that a city, under the Constitu- 
 tion of the United States, could have a perpetual injunction 
 from the United States Courts against the State's officers, pre- 
 venting them from removing or interfering with such bridges 
 after they were constructed. The same doctrine would apply 
 if the recall of the power to build bridges was done under 
 amendment of the Oregon Constitution by the people. In 
 such a case the only remedy appears tO' be that Congress could 
 pass a law providing for the removal of all bridges in the 
 Willamette River. That Congress has such power was held 
 in Willamette Iron Bridge Co. v. Hatch, 125 U. S. i, and in 
 subsequent cases. 
 
 Granting Franchises under Amendment of 
 a City's Charter 
 
 The Supreme Court has not passed on the question as to 
 whether a city can, by amendment of its charter, give itself 
 the right to grant franchises not authorized under its charter 
 as granted by the Legislature. It would seem that this power 
 or right followed, as a necessary sequence, from the two opin- 
 ions in the Kiernan case, and thus a city can be authorized 
 by its voters to grant franchises with the same powers as the 
 Legislature might have given before these amendments to 
 
32 
 
 the Constitution, which includes perpetual and exclusive fran- 
 chises. {Parkhurst v. Capital City Ry. Co., 23 Ogn. 471.) 
 
 Such franchises when granted by a city and accepted by 
 the grantee could not be revoked by the Legislature or by the 
 people. They would be protected by Section 10 of Article I, 
 and Section i of the Fourteenth Amendment of the Constitu- 
 tion of the United States, although the power of cities to 
 grant future franchises of that kind could be revoked. 
 
 This but illustrates again the danger of amending the 
 Oregon Constitution as was done by the amendments of 1906, 
 and the troubles which arise from amending the Constitution 
 by initiative proceedings, and having no regard for precedents 
 or established law, either common or statutory. 
 
 Exercise of Powers of Eminent Domain 
 
 The exercise of the sovereign powers of Eminent Domain 
 by a municipality, granted by its own initiative amendment 
 of its charter, has not yet been passed upon by the Oregon 
 Supreme Court, although there are obiter dicta in several cases, 
 including McMinnville v. Howenstine, supra, and Kiernan v. 
 The City of Portland, supra, on the subject. 
 
 In one of the opinions in the McMinnville case there is 
 dictum, at least, to^ the effect that a city can amend its charter 
 so as to give itself the right to appropriate property situated 
 as well without as within its limits. And in one of the 
 opinions in the Kiernan case there is dictum, at least, to the 
 effect that a city can amend its charter so as to give itself the 
 right to appropriate property within its limits. 
 
 As there appears to be no limit to this right, until the 
 Legislature passes a general law on the subject, as decided 
 in Strazv v. Harris, or the Constitution is amended, it would 
 seem that the City of Salem might, by amendment of its 
 charter, condemn or appropriate any of the State's buildings 
 and grounds within its limits, as nov/ or hereafter constructed, 
 including the State Capitol. Of course the Legislature, by a 
 general law, might recover any of these buildings or grounds 
 by condemnatory proceedings. As to whether the people of 
 
33 
 
 Salem could repeal the law of the Legislature, as indicated in 
 Straw V. Harris, has not yet been decided. 
 
 If a municipality can give itself the right to condemn 
 property outside its limits we may well consider what would 
 be the effect if one municipality tried to appropriate the prop- 
 erty of another, for, while it is the law that, without previous 
 authority so to do, one corporation, public or private, cannot 
 appropriate property already devoted to another public use, a 
 municipality might give itself this power, under these initiative 
 amendments of 1906. 
 
 What is a Charter ? 
 
 Section 2 of Article XI, as amended, of the Oregon 
 Constitution provides that the legal voters may "enact and 
 amend their charter." 
 
 What is a charter? In Oregon, prior to these amendments, 
 there were as many charters as there were cities and towns, 
 and no two charters alike. Some of them gave the right to 
 exercise, in a limited way, the power of Eminent Domain, and 
 to grant franchises, some did not. In the use in statutes, wills, 
 conveyances, etc., of technical words they are supposed to be 
 used according to their legal meaning. 
 
 At the time these initiative amendments of 1906 were 
 adopted, some of the legal definitions of a municipal charter 
 were as follows : 
 
 "An Act of Parliament, of Congress or of a State Legislature, 
 creating a corporation, is called the charter of the corporation." 
 Abbott's Law Dictionary. 
 
 "A municipal charter can emanate only from sovereign power, 
 which alone can delegate faculties and functions of government. In 
 England it may be granted by the King or by Parliament; in the 
 United States it is solely an act of sovereign legislative power." 
 28 Cyclopedia of Law and Procedure, 120. 
 
 In Cooley on. Constitiitioiial Limitations, page *i9i, it 
 is said : 
 
 "The people of the municipalities, however, do not define for them- 
 selves their own rights, privileges, and powers. * * * The 
 municipalities must look to the State for such charters of government 
 
34 
 
 as the Legislature shall see fit to provide; and they cannot prescribe 
 for themselves the details, though they have a right to expect that 
 those charters will be granted with a recognition of the general prin- 
 ciples with which we are familiar. The charter, or the general law 
 under which they exercise their powers, is their Constitution, in which 
 they must be able to show authority for the acts they assume to 
 perform. They have no inherent jurisdiction to make laws or adopt 
 regulations of government; they are governments of enumerated 
 powers, acting by a delegated authority; so that while the State Legis- 
 lature may exercise such powers of government coming within a 
 proper designation of legislative power as are not expressly or 
 impliedly prohibited, the local authorities can exercise those only 
 which are expressly or impliedly conferred, and subject to such regu- 
 lations or restrictions as are annexed to the grant." 
 
 And in Cooky on Constitutional Limitations, at pages 
 *I94, *I9S, it is said: 
 
 "The powers of these corporations (municipal corporations) are 
 either express or implied. The former are those which the legislative 
 act under which they exist confers in express terms; the latter are such 
 as are necessary in order to carry into effect those expressly granted, 
 and which must, therefore, be presumed to have been within the inten- 
 tion of the legislative grant. Certain powers are also incidental to 
 corporations, and will be possessed unless expressly or by implication 
 prohibited. Of these an English writer has said: 'A municipal cor- 
 poration has at common law few powers beyond those of electing, 
 governing, and removing its members, and regulating its franchises 
 and property. The power of its governing officers can only extend to 
 the administration of the by-laws and other ordinances by which the 
 body is regulated.' But without being expressly empowered so to do, 
 they may sue and be sued; may have a common seal; may purchase 
 and hold lands and other property for corporate purposes, and convey 
 the same; may make by-laws whenever necessary to accomplish the 
 design of the incorporation, and enforce the same by penalties; and 
 may enter into contracts to effectuate the corporate purposes. Except 
 as to these incidental powers, and which need not be, though they 
 usually are, mentioned in the charter, the charter itself, or the general 
 law under which they exist, is the measure of the authority to be 
 exercised. 
 
 "And the general disposition of the Courts in this country has been 
 to confine municipalities within the limits that a strict construction of 
 the grants of powers in their charters will assign to them; thus apply- 
 ing substantially the same rule that is applied to charters of private 
 incorporations. The reasonable presumption that the State has 
 granted in clear and unmistakable terms all it has designed to grant 
 at all." 
 
 In proposing and adopting the amendments of 1906, the 
 voters of the State seem to have assumed that to specify that 
 the legal voters of a city or town could enact or amend their 
 
35 
 
 charter was sufficient. This was merely the grant of a power 
 by name, without providing- of what such power consists, for 
 there is no definition, in Section 2 of Article XI, as amended, 
 of what a charter is. 
 
 In / Abbott on Municipal Corporations, page 40, it is said: 
 
 "The power to alter, amend, or repeal the charter of a public 
 corporation must necessarily exist without limitation in the sovereign, 
 otherwise there would be 'numerous petty governments existing within 
 the State, forming a part of it, but independent of the central of the 
 sovereign power.' " 
 
 But in Oregon, by the amendments of 1906, is this sove- 
 reign power lodged in the legal voters of the respective 
 municipalities ? By the amendment of Section 2 of Article XI 
 of its Constitution, it took from the Legislature the right 
 to "enact, amend, or repeal any charter or act of incorporation 
 for any municipality, city or town," and gave the right to enact 
 or amend their charter to their legal voters, "subject only to 
 the Constitution and criminal laws of the State of Oregon?" 
 In the opinion in Straw v. Harris it is said oi said amendment 
 and of said Section la of Article IV: 
 
 "The language used in these amendments considered would appear 
 to give to incorporated cities the exclusive control and management 
 of their own afifairs, even to the extent, if desired, of legislating within 
 their borders, without limit, to the exclusion of the State." 
 
 It can hardl)^ be doubted that this is exactly what the 
 proposers of these amendments, and, presumably, what the 
 majority of the voters in 1906 intended in adopting these 
 amendments. And this was done apparently without a knowl- 
 edge of the primary principles of constitutional law or of the 
 law relating tO' municipalities. 
 
 In order to arrive at this conclusion, however, the Supreme 
 Court must have overlooked its decision in the case of Hood 
 River Lumbering Company v. Wasco County, 35 Oregon, 498. 
 This was a case where the constitutionality of a statute was 
 involved, v/hich did not provide for notice to the non-consent- 
 ing owner of proceedings for appropriation of his property 
 and gave him no opportunity to be heard as a matter of right. 
 The Court held the law unconstitutional on this ground. On 
 page 508 Mr. Justice Bean said : 
 
 "A notice not provided for by law is, in truth, no notice at all, and 
 it is the province of the Legislature, and not of the Courts, to enact 
 
36 
 
 laws which shall prescribe the notice that brings parties into Court. 
 If no notice is provided by law, no effective notice can be given, since 
 a notice not authorized can have no legal force, and, without a notice 
 authorized by some valid statute, there can be no due process of law. 
 The Courts have no right to supply the omission by interpolating 
 provisions, for it is their duty to give effect to the statutes as they are 
 written, and they cannot amend imperfect enactments." 
 
 As a matter of strict constitutional law, under the amend- 
 ments of 1906, can any Oregon municipality give to itself the 
 right to exercise any sovereign powers not granted to it by its 
 charter from the Legislature? Must not the right to exercise 
 these sovereign powers be granted by amendment of the Con- 
 stitution made by the legal voters of the whole State of Oregon, 
 not only to municipal corporations in existence when these 
 amendments were adopted, but tO' those created thereafter? 
 And thus prevent the abuse of the exercise of these powers 
 by municipalities, to the prejudice of the rights of the rest of 
 the people of the State. 
 
 And thus it must have come that the Oregon Supreme 
 Court found itself in a position where it must either hold said 
 initiative amendments of 1906, relating to municipalities, void 
 for uncertainty or relating only to its business affairs, or 
 otherwise, in order to make them workable and not "in viola- 
 tion of our fundamental law," and to amend them by judicial 
 decisions, or, in the language of the Court, to "read into them" 
 appropriate words and phrases and limitations. And so we 
 have the decision in Straw v. Harris. But that case does not 
 settle all the questions that must arise under these initiative 
 amendments, which themselves "are in violation of our funda- 
 mental law." 
 
 I have treated of some, only, of the questions involved in 
 these initiative amendments to- the Oregon Constitution relat- 
 ing to the amendments of charters of municipal corporations. 
 I have the highest respect for the Oregon Supreme Court and 
 for the learned lawyers who' are its Justices. They have had 
 legal problems that are not easy tO' solve in the cases involving 
 these amendments of the Oregon Constitution which they have 
 had to decide. Whatever may be their views, or those of the 
 Oregon Bar Association, as to the advisability of adopting 
 these amendments, they are parts of the Oregon Constitution 
 and must be respected accordingly. 
 
37 
 
 I have endeavored, in this address, to show the danger and 
 impracticability of the people making radical changes in a 
 State Constitution without considering, and in contravention 
 of the history, the principles, and the fundamental law of a 
 republican form of government and in opposition to the tradi- 
 tions and to the genius of our institutions. 
 
 Appendix A 
 
 Section i of Article IV, as amended, of Oregon Consti- 
 tution is as follows : 
 
 " § 1. The legislative authority of the State shall be vested in a 
 Legislative Assembly, consisting of a Senate and House of Repre- 
 sentatives, but the people reserve to themselves power to propose 
 laws and amendments to the Constitution and to enact or reject the 
 same at the polls, independent of the Legislative Assembly, and also 
 reserve power at their own option to approve or reject at the polls any 
 act of the Legislative Assembly. The first power reserved by the 
 people is the initiative, and not more than eight per cent of the legal 
 voters shall be required to propose any measure by such petition, and 
 every such petition shall include the full text of the measure so pro- 
 posed. Initiative petitions shall be filed with the Secretary of State 
 not less than four months before the election at which they are to be 
 voted upon. The second power is the referendum, and it may be 
 ordered (except as to laws necessary for the immediate preservation 
 of the public peace, health, or safety), either by the petition signed by 
 five per cent of the legal voters, or by the Legislative Assembly, as 
 other bills are enacted. Referendum petitions shall be filed with the 
 Secretary of State not more than ninety days after the final adjourn- 
 ment of the session of the Legislative Assembly which passed the bill 
 on which the referendum is demanded. The veto power of the 
 Governor shall not extend to measures referred to the people. All 
 elections on measures referred to the people of the State shall be had 
 at the biennial regular general elections, except when the Legislative 
 Assembly shall order a special election. Any measure referred to the 
 people shall take effect and become the law when it is approved by a 
 majority of the votes cast thereon, and not otherwise. The style of 
 all bills shall be: 'Be it enacted by the people of the State of Oregon.' 
 This section shall not be construed to deprive any member of the 
 LegislatiA^e Assembly of the right to introduce any measure. The 
 whole number of votes cast for Justice of the Supreme Court at the 
 regular election last preceding the filing of any petition for the initia- 
 tive or for the referendum shall be the basis on which the number of 
 legal voters necessary to sign such petition shall be counted. Petitions 
 and orders for the initiative and for the referendum shall be filed with 
 the Secretary of State, and in submitting the same to the people he, 
 and all other officers, shall be guided by the general laws and the act 
 submitting this amendment, until legislation shall be especially pro- 
 vided therefor." 
 
38 
 
 Note I. The above section is an amendment to the 
 original Constitution, and was adopted by the Twentieth 
 Legislative Assembly ; adopted by the Twenty-first Legislative 
 Assembly ; adopted by the people, by a vote of 62,024 for, to 
 5,668 against it, June 2, 1902. Total vote of the State June 
 2, 1902, 92,990. 
 
 Note 2. Section i as originally adopted was as follows : 
 
 "The legislative authority of the State shall be vested in the 
 Legislative Assembly, which shall consist of a Senate and House of 
 Representatives. The style of every bill shall be: 'Be it enacted by 
 the Legislative Assembly of the State of Oregon,' and no law shall 
 be enacted except by bill." 
 
 Appendix B 
 
 Section la of Article IV of Oregon Constitution is as 
 
 follows : 
 
 " § la. The referendum may be demanded by the people against 
 one or more items, sections, or parts of any act of the Legislative 
 Assembly in the same manner in which such power may be exercised 
 against a complete act. The filing of a referendum petition against 
 one or more items, sections, or parts of an act shall not delay the 
 remainder of that act from becoming operative. 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 muncipal legislation. 
 Not more than ten per cent of the legal voters may be required to 
 order the referendum nor more than fifteen per cent to propose any 
 measure, by the initiative, in any city or town." 
 
 Note. — The above section was proposed by initiative peti- 
 tion filed in the office of the Secretary of State February 3, 
 1906, and adopted by vote of the people, 47,678 for, and 16,735 
 against, June 4, 1906. Total vote of the State June 4, 1906, 
 99.445- 
 
 Appendix C 
 
 Section 2 of Article XI, as amended, of Oregon Consti- 
 tution is as follows : 
 
 " § 2. Corporations may be formed under general laws, but shall 
 not be created by the Legislative Assembly by special laws. The 
 
39 
 
 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 crim- 
 inal laws of the State of Oregon." 
 
 Note I . The above section was proposed by initiative peti- 
 tion filed in the office of the Secretary of State February 3, 
 1906, and adopted by vote of the people, 52,567 for, and 
 19,852 against, June 4, 1906. Total vote of the State June 4, 
 1906, 99,445- 
 
 Note 2. Section 2 of the original Constitution read as 
 follows : 
 
 "Corporations may be formed under general laws, but shall not be 
 created by special laws except for municipal purposes. All laws passed 
 pursuant to this section may be altered, amended or repealed, but not 
 so as to impair or destroy any vested corporate rights." 
 
 Appendix D 
 
 As another instance of the working of the initiative under 
 the amendments of the Oregon Constitution, attention is called 
 to the amendment of Article VII of the Oregon Constitution, 
 adoped at the election held November 8, 19 10, 
 
 The amendment provides, in effect, that the judicial power 
 of the State shall be vested in one Supreme Court and in such 
 other Courts as may, from time to time, be created by law. 
 It further provides that the judges shall be elected by the 
 legal voters for a term of six years; that the Courts shall 
 remain as at present constituted until otherwise provided by 
 law; and that in all civil cases, three- fourths of the jury may 
 render a verdict. 
 
 The main objectionable features of this amendment are in 
 its Section 3, which is as follows : 
 
 "Section 3. In actions at law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be preserved, 
 and no fact tried by a jury shall be otherwise re-examined in any 
 Court of this State, unless the Court can affirmatively say there is no 
 evidence to support the verdict. Until otherwise provided by law, 
 upon appeal of any case to the Supreme Court, either party may have 
 attached to the bill of exceptions the whole testimony, the instructions 
 of the Court to the jury, and any other matter material to the decision 
 of the appeal. If the Supreme Court shall be of opinion, after con- 
 sideration of all the matters thus submitted, that the judgment of the 
 
40 
 
 Court appealed from was such as should have been rendered in the 
 case, such judgment shall be affirmed, notwithstanding any error com- 
 mitted during the trial; or if, in any respect, the judgment appealed 
 from should be changed, and the Supreme Court shall be of opinion 
 that it can determine what judgment should have been entered in the 
 Court below, it shall direct such judgment to be entered in the same 
 manner and with like effect as decrees are now entered in equity 
 cases on appeal to the Supreme Court. Provided, that nothing in this 
 section shall be construed to authorize the Supreme Court to find the 
 defendant in a criminal case guilty of an offense for which a greater 
 penalty is provided than that of which the accused was convicted in 
 the lower Court." 
 
 It will be seen that there is apparently a conflict between 
 the provisions of the first sentence of Section 3, relating to 
 the effect of a verdict by a jury in an action at law, and the 
 power and duty of the Supreme Court on an appeal when 
 there is attached to the bill of exceptions by either appellant 
 or respondent, "the whole testimony, the instructions of the 
 Court to the jury, and any other matter material tO' the 
 decision of the appeal." 
 
 Under the familiar rule of construction that where, in a 
 statute, there are apparently conflicting provisions, they must 
 be reconciled if it is possible to do so. Section 3 should be 
 construed tO' mean that the verdict of a jury cannot be 
 re-examined by any Court inferior to the Supreme Court, and 
 only by the latter when the whole record is before it. Thus, 
 a Circuit Court cannot grant a new trial if there be a verdict 
 of a jury, with a scintilla of evidence to support it, even when 
 such a verdict is excessive or outrageous or given under 
 prejudice or passion; probably, not on account of newly dis- 
 covered evidence. Once a verdict, always a verdict, until it 
 reaches the Supreme Court. The sufficiency of the verdict will 
 apply to appeals to the Circuit Court where there is a jury 
 trial in the County Court or in a Court of a Justice of the 
 Peace. It would seem that practically there can be no appeal 
 to the Circuit Court, when there has been a jury trial in an 
 inferior Court. The testimony is not transmitted in such 
 appeals to the Circuit Court. But the provisions of the first 
 sentence as tO' the conclusions of a verdict by a jury do not 
 apply to a criminal case, for the last sentence of Section 3 is : 
 
 "Provided, that nothing in this section shall be construed to 
 authorize the Supreme Court to find the defendant in a criminal case 
 
41 
 
 guilty of an ofifense for which a greater penalty is provided than that 
 of which the accused was convicted in the lower Court." 
 
 The appeal provided for in Section 3 applies to both civil 
 and criminal cases. The words are: "Upon appeal of any 
 case to the Supreme Court" the provisions apply. And what 
 are the provisions upon an appeal? Either the appellant or 
 the respondent may (and certainly the appellant always will) 
 "have attached to the bill of exceptions the whole testimony, 
 the instructions of the Court to- the jury, and any other matter 
 material to the decision of the appeal." Does this include the 
 verdict? It is immaterial. The verdict of the jury, in the 
 Court below, is not necessarily even a guide to the Supreme 
 Court. It must be guided by "the whole testimony, the 
 instructions of the Court to the jury," and also "any other 
 matter" that either the appellant or respondent may deem 
 "material to the decision of the appeal." It may enter a judg- 
 ment "after a consideration of all the matters thus submitted.'" 
 If the Supreme Court decides for the respondent, it may do so, 
 "notwithstanding any error committed during the trial" by the 
 Court below or by the jury. It must consider whether the 
 judgment "was such as should have been rendered in the Court 
 below," after a review of the whole testimony, and also after 
 considering "other matters" in the record. There may be 
 similar action by the Supreme Court, in favor of the appellant, 
 if "it shall be of the opinion that it can determine what judg- 
 ment should have been entered in the Court below." What, 
 then, is the value of the verdict? By this method of appeal 
 is not trial by jury practically abolished in Oregon? And yet 
 trial by jury has been in existence in English-speaking coun- 
 tries from the time of the Anglo-Saxon rule in England until 
 the present day! 
 
 No provision is made in this amendment for sending the 
 case back to the lower Court for re-trial. Its apparent object 
 is to authorize the Supreme Court to make a final determina- 
 tion in every law case appealed, and also in criminal cases, and 
 to direct what judgment shall be entered in the Court below. 
 But how can the Supreme Court make such a determination 
 when the Court below has excluded testimony which should 
 have been admitted? Or made other rulings materially preju- 
 dicial to the rights of one of the litigants ? To appeal a civil 
 
42 
 
 action to the Supreme Court, merely on errors of the lower 
 Court, will amount to nothing if there has been a verdict of a 
 jury, for "no fact tried by a jury shall be otherwise re-exam- 
 ined in any Court of this State," excepting only when a case 
 is appealed to the Supreme Court, and the whole testimony, 
 etc., is attached to the bill of exceptions. Any matter which 
 can now be shown after the trial, as, for instance, improper 
 conduct by the jury, or that prejudice or passion influenced 
 its verdict, and not appearing by the record of the trial, it 
 would seem, cannot be considered by the lower Court or by 
 the Supreme Court. Certainly if the Supreme Court did take 
 cognizance of such new matters, it could not well determine 
 what the judgment should be. But this amendment gives the 
 Supreme Court the power to dispense a kind of crude. Oriental 
 justice, which may cover deficiencies in this amendment. 
 
 While Section 3 gives the right by law to change the 
 powers conferred by it on the Supreme Court in regard to 
 determining what judgments shall be entered in civil and 
 criminal cases, there is no right, by any law, to change the 
 first sentence of Section 3. A change in the latter can be 
 made by Constitutional amendment only. If the power is 
 taken from the Supreme Court to set aside a verdict and to 
 render a judgment, then a verdict once given cannot be 
 re-examined by any Court; however unjust or unfair, it 
 must stand. For centuries the jury has been a check on the 
 tyranny and corruption of judges, while, at the same time, 
 upright judges have corrected the verdicts of ignorant, preju- 
 diced, and venal juries. To do away with this balance of 
 power is to set aside the best safeguards for justice which the 
 wit of man, guided by the experience of centuries, has been 
 able to devise. 
 
 Judgements of the Supreme Court in Criminal Cases 
 
 At first sight, the first sentence of this Section 3 would 
 make it appear that this Section 3 applied to civil cases only. 
 But that is not the fact. The rest of the section applies to 
 criminal cases also. The punctuation is bad. The word 
 "provided," which is preceded by a period, should be preceded 
 by a colon. What follows after the word "provided" is a part 
 of the sentence. There is no limitation on the "appeal of any 
 
43 
 
 case to the Supreme Court," but the hmitation is "Provided, 
 that nothing in this section shall be construed to authorize the 
 Supreme Court to find the defendant in a criminal case guilty 
 of an offense for zuhich a greater penalty is provided than that 
 of which the accused was convicted in the lower Court." 
 
 Mark the words, the offense "of which the accused was 
 convicted in the lower Court," not the offense nor crime for 
 which he was indicted nor for which he was tried ! If the 
 accused, in a lower Court, is convicted of a crime for which 
 he was not indicted nor tried, of course an appeal will lie. 
 But the Supreme Court may find him guilty of an offense, 
 without indictment, the only limitation being that the Supreme 
 Court cannot "find the defendant * * * guilty of an 
 offense for which a greater penalty is provided than that of 
 which the accused was convicted in the lower Court." This 
 is made plainer, and is accentuated, by the following provision 
 of Section 5 of said amendment, viz : "No person shall be 
 charged in any Circuit Court with the commission of any 
 crime or misdemeanor defined or made punishable by any of 
 the laws of this State, except upon indictment found by a 
 grand jury." By a necessary implication, this provision does 
 not apply to the Supreme Court, which on appeal may find 
 the accused guilty of another crime or offense, but not one 
 "for which a greater penalty is provided than that of which 
 the accused was convicted in the lower Court." The accused 
 may be indicted in a Circuit Court for murder, and convicted 
 of rape or arson by the Supreme Court ; indicted for burglary, 
 and convicted on appeal of mayhem ; indicted for forgery, and 
 found guilty of obtaining money on false pretenses ! And may 
 thus be convicted of a crime for which he was not given a 
 right to make a defense. If Circuit Courts are abolished by 
 law, can persons be tried for criminal offenses without indict- 
 ments? Indictments are only necessary in Circuit Courts. 
 
 Certainly the proposers of this amendment knew little of, 
 or cared nothing for the history of the English people. They 
 ignored the examples of history. Of how, for centuries, the 
 English people struggled against oppression and tyranny, and 
 for the right of a fair and legal trial by a trial jury in civil 
 and criminal cases, and in all felonies upon an indictment 
 found by a grand jury; of how they were triumphant in 
 
44 
 
 the so-called revolution of 1688; of the establishment of the 
 Bill of Rights, which, in its essential features, is a part of the 
 original Constitution of the State of Oregon; of the causes 
 which led to the American Revolution ; of the Revolution itself ; 
 of the Declaration of Independence. They ignored the debates 
 in the Convention when the Constitution of the United States 
 was formed; the fifth and sixth amendments to the Constitu- 
 tion of the United States ; what was published in The Federal- 
 ist; personal liberty as opposed to tyranny; and human rights 
 as against the tyranny of Courts. Take this amendment, with 
 its contradictory provisions, and determine, if you can, what 
 was in the minds of its framers, and what was their intent. 
 
 The people and the legal voters of Oregon are certainly 
 of as high average intelligence as those of any other State in 
 the Union. Its earliest pioneers were people of high courage 
 and intelligence, who first saved Oregon and then made it. 
 Oregon has ever since attracted conservative people. It has 
 been no place for the adventurer or the idler. Up to 1900, its 
 growth was not fast. Its population, as shown by the census of 
 that year, was 413,536. Its population, as shown by the census 
 of 19 10, is 672,765, an increase of 226,261 in ten years. But 
 only a part of Oregon's voters have taken the initiative amend- 
 ments seriously. Very few of them have read the proposed 
 amendments, fewer still have taken the trouble to give any 
 serious thought as to what most of the initiative amendments 
 meant. Many do not vote on initiative measures, hoping that 
 what is right or proper will prevail. Many who voted for 
 this amendment of Article VII of the Constitution were misled 
 by the first clause of its ballot title. Its ballot title was as 
 follows : 
 
 "For amendment to the Constitution of the State of Oregon, pro- 
 viding for verdict by three-fourths of jury in civil cases; authorizing 
 grand juries to be summoned separate from the trial jury, permitting 
 change of judicial system by statute, prohibiting re-trial where any 
 evidence to support verdict; providing for affirmance of judgment on 
 appeal notwithstanding error committed in lower Court, directing 
 Supreme Court to enter such judgment as should have been entered 
 in lower Court; fixing terms of Supreme Court; providing judges of 
 all Courts be elected for six years, and increasing jurisdiction of 
 Supreme Court." 
 
 This careless, not to say dilettant, way of voters consider- 
 ing or not considering serious amendments of the Constitution 
 
45 
 
 by the initiative is one of the strongest reasons against its use. 
 If the voters will not seriously, carefully, intelligently and con- 
 scientiously act, then it must continue to be a failure and, at 
 the same time, a menace to the stability of government as it 
 has heretofore prevailed in the United States. 
 
 Consider the vote by which this amendment was adopted ! 
 Initiative amendments do not require a majority of all the 
 voters, merely a majority of the votes cast for or against the 
 amendment. The total number of votes cast for Governor, 
 which was less than the number of registered voters, at the 
 election November 8, 1910, when this amendment was adopted, 
 was 1 17,690. The vote in favor of the adoption of this amend- 
 ment was 44,545, and against its adoption 39,307. The affir- 
 mative votes were 14,301 less than a majority, a proportion 
 of votes cast for the amendment as compared with the total 
 votes for Governor of less than thirty-eight per cent. There 
 were 33,738 voters for Governor who did not vote on the 
 amendment at all. The total number of voters who voted 
 against this amendment, and those who^ did not vote on it, 
 is 73,045, as against 44,545 who voted for it. And thus a 
 Constitution is amended in Oregon and the vital principles of 
 American institutions and the precedents of law, and the safe- 
 guards of liberty and of a republican form of government, 
 may be set aside. 
 
 It may be that my conclusions as to the effect of this 
 amendment are wrong, but I believe I am right. In any 
 event, a radical change has been made in Oregon's funda- 
 mental law. It is true, the Oregon Supreme Court may, by 
 its decisions, amend this initiative amendment of Article VII, 
 and say that its effect must be as the Supreme Court decides. 
 It was held in Straw v. Harris, 54 Ogn. 424 (103 Pacific 
 Reporter, yjy), that "the language used in the amendment 
 considered would appear to give" certain powers, and that 
 "whatever may be the literal import of the amendment, it 
 cannot be held that the Oregon Constitution can be so 
 amended." But this is a limitation on the power of the voters 
 of Oregon to amend the Constitution, and is a limitation that is 
 not now in the Constitution itself. What then of this sacred 
 right of the initiative? And what of the doctrine, by which 
 it is upheld — that the people are never wrong? And thus 
 
46 
 
 thirty-eight per cent of them are right in amending the Con- 
 stitution for the other sixty-two per cent. Let the minority 
 rule ! 
 
 As there are no limitations on the powers of the voters to 
 amend the Oregon Constitution, it would not be impossible 
 to have an amendment providing for referendum votes on 
 decisions of the Supreme Court. A petition with nine thou- 
 sand signatures would require such an amendment to be sub- 
 mitted to a vote at the next election. 
 
 I have written to show in how crude, unsatisfactory, and 
 ignorant a manner radical changes may be made by initiative 
 amendments to a carefully considered and established Consti- 
 tution, such as Oregon has had for more than fifty years. 
 It is to be hoped that the time is not far distant when the 
 legal voters of Oregon will invoke the initiative to abolish it. 
 
FLC 
 
 LB D 
 
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