DENECKE, Chief Justice.
This is a declaratory judgment proceeding in which officers of Clackamas County intervened and asked for a judgment that chapter 665, Oregon Laws 1977 violates the Oregon Constitution. Chapter 665 proposed to the electorate of Clackamas, Multnomah and Washington counties sweeping changes in the organization of the Metropolitan Service District (MSD), a special service district created in 1970 to manage basic public services, such as sewers and public transportation, in the Portland metropolitan area.
The enabling legislation for MSD permitted the establishment of a metropolitan service district in any "metropolitan area," ORS 268.030, defined as the "Oregon portion of a standard metropolitan statistical area [SMSA] designated by an agency of the United States." ORS 268.020(2). By 1970 the Census Bureau had designated the Portland, Salem and Eugene areas as SMSAs. To date, however, MSD is the only metropolitan service district ever organized in this state.
Chapter 665 amended many sections of the enabling act, ORS ch. 268, including the sections dealing with the powers of a district and the selection of the governing body.
Section 31 of ch. 665 provided for the referral of the entire act to the voters of the three counties for their approval or rejection. In the referendum a majority of all the voters of the three-county area approved a ballot measure incorporating the Act. A majority in Clackamas County, however, voted no. The Governor declared that the Act had been approved by the voters. At a subsequent election the voters elected the governing board and executive director of the "new" MSD. The bulk of the Act took effect on January 1, 1979. Ch. 665, § 30.
Two residents of Clackamas County filed this action in 1978, against various officials of the state, MSD, the Columbia Region Association of Governments and Clackamas County. By stipulation the Clackamas County officials were dismissed as defendants and permitted to intervene as plaintiffs. The circuit court granted summary judgment to the defendants on all issues. The Court of Appeals affirmed the judgment. Reilley v. Secretary of State, 41 Or.App. 293, 598 P.2d 323 (1979). We allowed intervenors' petition for review.
At trial and before the Court of Appeals, the intervenors attacked the validity of ch.
Specifically, intervenors contend that by rewriting the charter of MSD and by restricting the applicability of ORS ch. 268 to Clackamas, Multnomah and Washington counties the legislature created a corporation by a special law.
In order for intervenors to prevail all three of these propositions would have to be true. Defendants concede that MSD is an Art. XI corporation, but contest the validity of the other premises on which intervenors rely.
The intervenors sharply attack the Court of Appeals' decision that Art. I, § 21 "saves" the statute. However, we need not and do not decide that controversy as we conclude for a different reason that the legislature did not violate the prohibition of Art. XI, § 2.
The first sentence of Art. XI, § 2 states: "Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws." The history of that section supports our conclusion that the legislature did not "create" the new MSD, as that term is used in Art. XI.
The current text of Art. XI, § 2 derives from the original Oregon Constitution of 1859, the same section of which stated: "Corporations may be formed under general laws, but shall not be created by special
The first sentence of the current Art. XI, § 2 has descended almost untouched from the version the voters approved in 1906.
Nothing in the debate over the home rule amendments states specifically what meaning the sponsors attached to the phrase "created by the legislative assembly." The clause could be read to prohibit the legislature even from submitting to the people a proposal for the establishment of a municipal corporation. Alternatively, it could mean only that the legislature may not impose a new local government apparatus on a selected group of citizens, without giving those people a chance to approve or veto the proposal.
We think that the latter interpretation is more consistent with the intent of the home rule amendments. Granted, such an interpretation gives the legislature complete freedom to propose, although not to mandate, the formation of a new municipal corporation. But the voters of the locality are granted the final choice whether to create the corporation. So long as the legislative decision to enable a corporation to be established by legislation requires affirmative ratification by the affected voters, the home rule principle is secure.
The interpretation of Art. XI, § 2 advocated by the intervenors would severely cramp the flexibility of the legislature in coping with problems that uniquely impact one area of the state. In ch. 665 the legislature carefully delineated the boundaries of MSD to exclude the rural portions of the tri-county area. If Art. XI, § 2 were read as intervenors suggest, the legislature could not directly set those boundaries. That task would have to be delegated by general enabling legislation to some board or commission. Similarly, legislation defining the responsibilities and powers of MSD would have to be enacted as general enabling legislation, overlooking the fact that the Portland metropolitan area faces problems unique to Oregon's largest city.
Of course, the legislature could find a way to indirectly address the needs of particular
The constraints that intervenors would impose on the legislature are especially onerous, in light of the fact that the Constitution recognizes no procedure by which the people of the tri-county area could create MSD on their own initiative. Art. XI, § 2 permits the voters of every city and town to enact and amend their municipal charter.
We do not think that the intent of Art. XI, § 2 is to hamstring legislative attempts to deal with regional problems which towns, cities and counties are illequipped to handle. We perceive a significant difference between the submission of a proposal to the voters, and the creation of a corporation by the legislature. For these reasons we hold that the requirements of Art. XI, § 2 were satisfied by the provision in ch. 665 for submission of the Act to the voters of the tri-county area.
In LaGrande/Astoria v. PERB, supra, 281 Or. 137, 284 Or. 173, the cities made no contention that the legislature had invalidly enacted special laws. The controversy concerned the second and third sentences of Art. XI, § 2, not the first sentence concerning special laws. Writing in 1915 McBain inquired "* * * whether the requirement of general legislation for cities was devised to establish anything that might with propriety be called a home rule right." McBain, The Law and the Practice of Municipal Home Rule, p. 96.
He answered his inquiry:
LINDE, J., did not participate in this decision.
TONGUE, Justice, dissenting.
The majority holds that although Article XI § 2 of the Oregon Constitution, as adopted by the voters of this state in 1906, expressly prohibits the legislature from "creating" municipal corporations by special
I cannot subscribe to such a doctrine. Under the precedent now established by the majority, the legislature, at the urging of special interest groups, may now again embark upon ventures in municipal government by special laws. For example, if Eugene and Springfield, Coos Bay and North Bend, Medford and Ashland, or Salem and West Salem cannot agree upon proposals for the solution of problems of local concern ranging from mass transit and waste disposal to police or fire protection, the legislature may now enact a special law to create a "service district" with boundaries including both cities, and with powers that infringe upon the powers of both cities, including powers of taxation. Under the decision by the majority, even though the voters of the smaller of the two cities involved may vote decisively against such a proposal, they would be forced to accede to powers of the new "service district," including the taxes levied by it, if the voters of the larger of the two cities vote in favor of the proposal.
For over 40 years prior to 1978 it had been held by unanimous decisions of this court that the state could not legislate, even by general laws, on matters primarily of local concern to cities, which were held to have exclusive control over such matters under their constitutional powers of home rule. In that year a majority of this court, in LaGrande/Astoria v. PERB, 281 Or. 137, 576 P.2d 1204 (1978), limited the home rule powers of cities to matters involving the structure and procedures of municipal government and held that the state can legislate by general law as to all matters of substance, including those primarily of local concern. See dissenting opinion in LaGrande/Astoria. Now the majority, by its decision in this case, has held that the state can also legislate on all such matters by special laws providing for "service districts," as well as by general laws.
To hold, as does the majority, that in such a situation the legislature has not "created" the "service district" in this case to me is pure sophistry. It often takes more than one to "create" in real life. The legislature conceived this "service district" and defined its structure, powers and boundaries. If this was a paternity suit the Oregon legislature would have no defense.