sequently includes institutions other than the state of Oregon to the legal voters of every cities or towns.

municipality and district as to all local, special, and for their respective municipalities and disand municipal legislation of every character in tricts the president of the board of commissioners of said corporation shall exercise the duties of mayor of a city or town and the secretary shall perform the duties of auditor or recorder of a city or town, and the attorney of the cor

ney of a city or town, and if there be no attor ney of said corporation then the duties required of attorney shall be performed by the secretary of such corporation."

[4] It will now be necessary to determine whether the defendant port is a municipality within the meaning of the organic law. While we recognize the difference between a corporation organized "for municipal purposes," as was permitted by section 2 of arti-poration shall perform the duties of the attorcle 11 prior to 1906, and a pure municipality like a city, still the test for determining the existence of a municipality is as prescribed in Cook v. Portland, 20 Or. 580, 586, 27 Pac. 263, 13 L. R. A. 533, where this court held that the port of Portland was created for municipal purposes, and that it was there fore such a corporation as the Legislature could create by a special law.

"The test of a corporation for municipal purposes adopted by this court seems to have been the right or power to exercise some of the functions of government, and this we apprehend is the true test."

The Legislature has accorded to ports some of the qualities of municipal corporations; for we read in the first section of chapter 39, Laws 1909 (section 6114, L. O. L.), that: "Municipal corporations designated as ports may be incorporated * in manner as in this act hereinafter provided." A port exercises some of the functions of government. Among the powers enumerated the port is authorized

* *

"to make, establish, change, modify or abolish such rules and regulations for the use or navigation in such harbors and rivers, or the placing of obstructions therein or the removal of obstructions therefrom, as it may deem convenient, requisite or necessary or in the best interests of the maritime shipping and commercial interests of the said port, and the rules and regulations so made by it to be enforced by such fines, penalties, and punishments as it in the exercise of sound discretion may deem necessary; and the fines or penalties so imposed or levied shall be recovered in the name of said corporation in any court of this state having jurisdiction of actions for the recovery of fines and penalties imposed by state laws, and shall inure and belong to said corporation, and all punishments so imposed shall be enforced in the name of said corporation in any of the courts of this state having jurisdiction of crimes and misdemeanors under said laws."

It is true that "rules" and "regulations" are the terms employed; but the mere names are not conclusive, because the thing named is described in detail, and from the description the substance is known, and the thing called a "rule" or "regulation" is, in fact, an ordinance or a municipal law carrying a fine or penalty or punishment for a violation. It is clear then that a port possesses at least some of the characteristic qualities even of a pure municipality.

This

The Legislature has therefore viewed a port as a municipality: (a) By defining it to be a municipality; (b) by granting authority to exercise functions of government, to enact certain laws, and to provide fines, penalties, and punishments for violations; and (c) by making provisions for the operation of the initiative and referendum powers. court has confirmed the views of the lawmakers by classing a port with municipal corporations. Straw v. Harris, 54 Or. 424, 430, 103 Pac. 777; State ex rel. v. Port of Bay City, 64 Or. 139, 143, 129 Pac. 496; Cook v. Portland, 20 Or. 580, 27 Pac. 263, 13 L. R. A. 533; Kiernan v. Portland, 57 Or. 454, 466, 111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339; State ex rel. v. Swigert, 59 Or. 132, 133, 116 Pac. 440. When speaking of the port of Toledo in Mackay v. Port of Toledo, 152 Pac. 250, 252, this court says:

"It must be conceded that defendant is a municipal corporation" within the meaning of section 358, L. O. L.

[5] While a port is neither a city nor a town, and although it is not necessary to attempt the solution of any problem growing out of the use of the initiative and referendum powers when exercised by cities and towns, nevertheless a survey of our own judicial utterances made concerning pure municipalities, when considered in their relation to the Legislature, may afford some aid in reaching a correct decision of the instant controversy. Powers exercisable by cities and towns may be placed in two separate classes, which, for the sake of brevity and the want of better terms, will be designated as: (1) Intramural; and (2) extramural. When the legal voters of a city enact municipal legislation which operates only on themselves and for themselves, and which is confined within and extends no further than the corporate limits, then such voters are exercising intramural authority. When, however, the legal voters of a city attempt to exercise authority beyond the corporate limits of their municipality, they are using an extramural power.

[6] By the plain provisions of the ConstiThe act of 1909 gives further recognition tution the Legislature is prohibited from ento ports as municipalities by carefully pro-acting, amending, or repealing a city charter viding for the operation of the initiative and by a special law. The language employed in referendum. It is set forth in section 6124, section 2 of article 11 has been the subject of L. O. L. (section 8 of chapter 39, Laws of much discussion, resulting in a contrariety of 1909), thus: opinion as to whether the Legislature possesses authority to enact a general law when it has the effect of amending the charters of

"In the exercise of the initiative and referendum powers reserved under the Constitution of

cities and towns. Even this court has not | Pac. 637, Ann. Cas. 1914C, 483; Riggs v. followed an unswerving course when consid- Grants Pass, 66 Or. 266, 268, 134 Pac. 776; ering the right of the Legislature to enact general laws affecting the intramural powers of cities. Opinions which either hold or assume that the Legislature is permitted to pass general laws regulating intramural authority appear in many adjudications. Straw v. Harris, 54 Or. 424, 437, 103 Pac. 777; Kiernan v. Portland, 57 Or. 454, 467, 111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339; State ex rel. v. Port of Tillamook, 62 Or. 332, 341, 124 Pac. 637, Ann. Cas. 1914C, 483; Churchill v. Grants Pass, 70 Or. 283, 288, 141 Pac. 164; State ex inf. v. Gilbert, 66 Or. 434, 439, 134 Pac. 1038; McMinnville v. Howenstine, 56 Or. 451, 457, 109 Pac. 81, Ann. Cas. 1912C, 193; State ex rel.. v. Swigert, 59 Or. 132, 135, 116 Pac. 440; West Linn v. Tufts, 146 Pac. 986, 987. See, also, California-Oregon Power Co. v. City of Grants Pass (D. C.) 203 Fed. 173, 175; Portland Ry., L. & P. Co. v. City of Portland (D. C.) 210 Fed. 667, 672; and the dissenting opinions in Kalich v. Knapp, 73 Or. 558, 142 Pac. 594, 145 Pac. 22. The right of the Legislature to amend municipal charters by general laws has been squarely denied in Branch v. Albee, 71 Or. 188, 142 Pac. 598; Kalich v. Knapp, supra; Pearce v. Roseburg, 150 Pac. 855, 859.

The legal voters of cities and towns are not obliged to look to the Legislature for the right to exercise any intramural power; but the whole sum of intramural authority is set at large, and the legal voters may exercise all of that authority or only such part of if as they may desire, subject, of course, to the Constitution and criminal laws of the state, and subject also to the right of the people of the commonwealth to amend charters or enact supervisory legislation by the use of the initiative. Robertson v. Portland, 149 Pac. 545, 547. Extramural authority, however, is not available to the legal voters of cities and towns, unless the right to exercise it has first been granted either by a general law enacted by the Legislature or by legislation initiated by the people of the whole state. The right to employ intramural authority finds its source in the language of the Constitution, because the legal voters of cities and towns are by that instrument expressly empowered to enact and amend their own charters; but permission to employ extramural authority must be granted to cities and towns before the privilege can be exercised. One power coexists with the Constitution, while the other power does not exist at all, unless the people of the whole state either grant the authority themselves by the initiative or extend the privilege through their representatives, the Legislature. Thurber v. McMinnville, 63 Or. 410, 415, 128 Pac. 43; Branch v. Albee, 71 Or. 188, 205, 142 Pac. 598; Coleman v. La Grande, 73 Or. 521, 525, 144 Pac. 468; Kalich v. Knapp, 73 Or. 558, 578, 142 Pac. 594, 145 Pac. 22; State ex rel.

Couch v. Marvin, 67 Or. 341, 345, 136 Pac. 6; City of McMinnville v. Howenstine, 56 Or. 451, 466, 109 Pac. 81, Ann. Cas. 1912C, 193. The opinion of Mr. Justice King in the lastmentioned case is not in harmony with what is said here, but the reasoning of that opinion has never been followed, and is now disapproved, although a correct result was reached. Precedents have firmly established the rule that extramural power cannot be employed by cities and towns unless a law exists permitting it, and some prior adjudications have advanced a step further, and held that a general law enacted by the Legislature permitting the exercise of extramural power does not by its own force ingraft that power upon the charter of a city, but the general law may be likened to a continuous offer of a power which nevertheless cannot be used until the legal voters of the city have accepted the offer by amending their charter so as to include the proffered power. Riggs v. Grants Pass, 66 Or. 266, 270, 134 Pac. 776; Kalich v. Knapp, 73 Or. 558, 564, 142 Pac. 594, 145 Pac. 22. While it may be dictum, still it would seem that there is much force in the contention that, if a city cannot exercise a given power unless permission is first granted, and if the Legislature can lawfully grant that permission, then the Legislature may with equal right regulate and supervise the power granted or, unless prevented by the intervention of vested rights, withdraw it entirely.

[7] We have determined that a port is a municipality within the meaning of the Constitution, although it is not a city or a town, but we have yet to ascertain the relations subsisting between a port and the Legislature. Ports cannot be created by the Legisla ture by special laws (Farrell v. Port of Columbia, 50 Or. 169, 91 Pac. 546, 93 Pac. 254). but they may be formed under general laws All corporations (Straw v. Harris, supra). may be formed under general laws. All corporations cannot, however, enact or amend their own charter or acts of incorporation. Only one class of corporations is authorized to enact or amend a charter. The right of a city or town to enact or amend its charter exists only because the third sentence of section 2 of article 11 of the Constitution creates the right; and the language which confers the privilege by necessary implication excludes all other corporations. Cities and towns are not the only corporations embraced by section 2 of article 11 because private corporations are included in the first sentence, nor are cities and towns the only municipalities mentioned in that section of the organic law. At the time of the adop tion of section 2 of article 11 municipalities other than cities and towns were in actual existence, and the very section of the organic

right to enact and amend their own charters | the manner of exercising those powers thus also recognizes that other municipalities than granted. All classes of municipalities may be cities and towns did exist, and when a formed under general laws, but none except particular class of municipalities, as cities cities and towns are favored with the priviand towns, was selected from municipalities lege of enacting or amending their own in general and favored with a specified charters or acts of incorporation. It seems privilege, the single act of selection was of clear then that municipal legislation, within itself equivalent to saying that no other kind the meaning of section la of article 4, when of municipalities could exercise the same applied to municipalities, other than cities privilege. The argument has been made and and towns, refers to legislation which is perapproved in at least one case that the mitted and made necessary for carrying into amendment of a charter is municipal legis- effect a lawful power previously granted. lation within the meaning of section la of It must be remembered, too, that "municipal article 4, and that the right to enact munic- legislation" does not embrace every step takipal legislation included the right to amend en or act done by a municipality. Long v. City a charter or act of incorporation of a port. of Portland, 53 Or. 92, 101, 98 Pac. 149, 1111. Farrell v. Port of Portland, 52 Or. 582, 98 A port has no right to legislate unless that Pac. 145. As already noted, both sections of right is first created by a law; but, when the organic law must be construed together. the right to legislate is conferred, then secBoth sections were adopted at the same time. tion la of article 4 immediately operates, and It is plain that section 2 of article 11 gives the initiative and referendum are at once cities and towns power to enact or amend made available, and the exercise of such their own charters, while other municipali- power to legislate is municipal legislation. ties are excluded; and, construing the two If it does not rise to the dignity of a city sections of the Constitution together, it canor town, a municipality cannot take unto not be said that section la of article 4 was itself and exercise any power whatever, undesigned to grant a power which a compan- less the right is first granted by a law passed ion section purposely withholds. It is incongruous to assert that the power to amend by the people of the whole state or by a is granted by section la of article 4 and The fact that a port cannot exercise any general statute enacted by the Legislature. prohibited by section 2 of article 11. Both sections of the Constitution operate with power at all unless permitted by some law equal force; one is not more potent than passed by the Legislature or enacted by the the other. However, there is no conflict in people of the whole state with the aid of the organic law. By the terms of section the initiative, and the circumstance that la of article 4 every municipality, whether it a port is not a city or town, and therefore be a city or town, or whether it be a port, cannot amend its own charter or act of inhas the right to employ the initiative and corporation, lead with a compelling force referendum powers "as to all local, special, to the conclusion that the Legislature has and municipal legislation," and this means ample authority to amend laws previously Moreover, that such municipality may apply the initia- passed by it concerning ports. tive and referendum powers when enacting saying that a port cannot exercise any power municipal legislation to carry out and make unless expressly permitted by the Legislature effective an authority previously granted. or allowed by the people of the entire state, A city is chartered to improve streets, to as- and stating that a port cannot amend its sess the cost of the improvement against ad-wn charter or act of incorporation, when joining property, and to enact ordinances for carrying out the granted power. The ordinances which are enacted in the exercise of the power to improve constitute municipal legislation. It is true that amending a charter may in an enlarged sense constitute municipal legislation; but the power to enact that kind of municipal legislation is confined to cities and towns, and exists only because of section 2 of article 11. A port is granted power to adopt rules and regulations carrying fines, penalties, and punishments, to be imposed for any violations; and when the port, in pursuance of the previously granted power, prescribes rules and regulations with fines, penalties, or punishments, it is adopting municipal legislation within the meaning of section la of article 4. All municipalities are granted the initiative and referendum powers, but none except cities and towns are favored with the privilege of providing for

taken together, are equivalent to a declaration that the Legislature possesses ample authority to adopt amendments which at once operate on all ports. The Constitution does not carry any inhibition against the Legislature enacting general laws which regulate or even withdraw powers previously granted by that body of lawmakers to munici palities, which are not cities or towns, unless vested rights create an insurmountable obstacle. When the Legislature grants a power to ports, that power is not irretrievably lost to the Legislature; but the same lawmaking body may afterwards by a gener al law regulate, add to, lessen, or even withdraw that power to the same extent as before 1906. A striking illustration of the results which would be worked out by the argument of plaintiff is furnished by the statute providing for the formation of ports. Section 6121, L. O. L., declares that:

municipality:

"To the full extent which the state of Oregon | (3) Cities and towns are favored with two might itself exercise and control or to which it distinct privileges not awarded to any other can grant to corporations organized under the (a) They may enact and provisions of this act the right to exercise the same, corporations organized under the provi- amend their own charters; (b) they may sions of this act shall be and are hereby granted prescribe their own procedure for the exfull control of all bays, rivers, and harbors with-ercise of the initiative and referendum. (4) in their limits, and between their limits and the sea, with full power and authority to, from time to time, make, establish, change or abolish wharf lines in such harbors and rivers."

Powers exercisable by cities and towns are of two classes: (a) Intramural; and (b) extramural. There are precedents holding that cities and towns are immune from interference by the Legislature when exercising intramural powers, and prior adjudications may also be found which decide that the Leg

By the terms of the statute the port of Astoria is clothed with all the power of control over the Columbia river from that port to the sea; and yet another port may be organized farther up the river, and the sec-islature may enact general laws affecting the ond port is also armed with the same com- exercise of intramural powers. The rule is plete control over the waters of the river now established that cities and towns cannot to the sea, so that two public bodies of ex- use extramural powers unless first permitted actly equal potency, and possessing powers to do so by a law passed by the Legislature identically the same in degree, quality, and or the people of the whole state. (5) Section kind, are applying all their powers to the la of article 4 does not empower a municipalsame thing, namely, the Columbia river from ity to take unto itself any municipal authorithe port of Astoria to the sea. Two or more ty, but the language "local, special, and municports cannot each exercise the whole sum of ipal legislation" only means that, if a powjurisdiction over the same thing at the same er which has been lawfully granted carries time. It is like the meeting of two irresisti- with it the right to legislate, then that right ble forces. If the legal voters of a port have to legislate is "municipal legislation." This the right to decide whether a general law section of the Constitution does not mean amending the powers of ports shall apply that a municipality can legislate unto itself to that port, then such legal voters have an a power to legislate. None but a city or a equal right to decide for themselves that they town can legislate a power unto itself withwill not relinquish or suffer the impairment out the aid of a statute, and that privilege is of any power previously granted to them; confined to the exercise of intramural powand, if they can decline to surrender a power, ers. Excluding cities and towns, all municthey can refuse to permit the Legislature ipalities may be controlled, supervised, and ever again to enact any legislation which in regulated by general laws passed by the the slightest infringes upon the previously | Legislature, provided such general laws do granted power to control the Columbia river not impair the initiative and referendum to the sea; and, furthermore, any power powers concerning "municipal legislation," whatsoever, when once granted to a port and to the same extent as before 1906, when secaccepted by it, would be forever lost to the tion 2 of article 11 and section la of article Legislature from the very moment of the 4 became parts of the Constitution. grant. But the language of the Constitution does not contemplate that a port, when formed under a general law fashioned by the Legislature, assumes the shape of an imperium in imperio. A port is not endowed with the quality of independence, but it is subordinate to the Legislative Assembly. When the Leg-6121, L. O. L.? In strict harmony with that islature grants power to a port, that power is not thereby irretrievably lost to the grantor, but the grant may be increased or diminished, or even revoked if vested rights have not intervened. The port of Astoria is now clothed with the powers which were added by the act of 1915. The views herein expressed overrule Farrell v. Port of Portland, 52 Or. 582, 98 Pac. 145.

The decree of the circuit court is affirmed.

BEAN, J. (dissenting). But one question is necessarily involved in this suit, viz.: What force or construction shall be given to chapter 53, Laws of 1915, amending section

part of section 2 of article 11 of the Constitution which provides that "corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws," the Legislature enacted chapter 39, Laws of 1909 (section 6114, L. O. L., etc.), providing for the incorporation under general law of municipalities designated as ports. The act prescribes a form of peReducing a portion of the discussion to the tition for an election for the organization form of a recapitulation: (1) No corporation of a port, a form for proclamation of the may be created by a special law passed by result, and a form for an act of incorporathe Legislative Assembly, but all kinds of tion, or what may be termed a charter for corporations may be formed under general the municipality, when the same is adopted laws passed by the Legislature. (2) Section by the formation of a port under the pro2 of article 11 and section la of article 4 visions of the act. The law has been sustainemploy the term "municipality" in a compre ed and upheld at various times. Straw v. hensive sense, so as to include: (a) Pure Harris, 54 Or. 424, 103 Pac. 777; Bennett municipalities like cities and towns; and Trust Co. v. Sengstacken, 58 Or. 333, 113

writer understands, upon the theory that any act of incorporation of a port then exsuch general law furnishes convenient and isting. On the other hand, the general plan serviceable machinery or forms to be used prescribed in the first act is carefully prein the creation of ports. It does not purport served. The constitutionality of the amendto create a port, or confer any authority up- ment is not and cannot be questioned. Straw on such a municipality, except by adoption v. Harris, 54 Or. 424, 103 Pac. 777; Bennett thereof, by the legal voters of the district Trust Co. v. Sengstacken, 58 Or. 333, 113 desiring to come within its provision and Pac. 863. The commissioners of the port of complying therewith; in other words, ports | Astoria, however, reading this amendment, are purely voluntary corporations. In 1910 and apparently forgetting that it was merethe port of Astoria was organized in con- ly a suggested plan to be availed of by the formity to the directions of the act and pur- voters or not, as they might elect, proceeded suant to a general plan inaugurated and au- to enforce its provisions as though it had thorized by section la of article 4 and sec- been regularly adopted, and prepared to extion 2 of article 11, as amended in 1906, pro- pend the sum of $100,000 in the purchase and viding for local self-government. In making operation of steamboats, power boats, vesthis compact the people of the port of Astoria sels, and water crafts, etc., without the sancadopted as their act of incorporation or tion in any manner of the legal voters of charter the many provisions of the law of the port. This suit is the result. 1909 detailing the powers and privileges of ports so organized. This document then served the people of that district as their warrant of authority or charter, for all intents and purposes, as fully as though the same had been enacted for this particular port by the people of the whole state. All this was in perfect harmony with the Constitution and the statute. In 1915 the Legislative Assembly, in furtherance of the plain mandate of our organic law, deeming it wise to extend the provisions of the act of 1909, and provide a further plan so that ports might avail themselves of additional privileges, if the people residing therein so desired, adopted chapter 53, Laws of 1915, amending section 6121, L. O. L., by adding to subdivision 5 thereof the following:

The position of the commissioners is not sanctioned by either the organic law or legislative enactment. Reverting to the last section of the act of 1909, of which section 6121, L. O. L., as amended, is now a part, we find the following declaration:

"Nothing in this act contained shall be construed as in any way altering or abridging pow ers now exercised or enjoyed, or by law authorized to be exercised or enjoyed by or reserved unto any such port or corporation heretofore created by and now existing under the laws of this state: Provided, however, that any such port or corporation heretofore organized and now in existence, may reincorporate under the provisions of this act."

This emphasizes the intent expressed in the general features and language of the law to the effect that it was not supposed by the "Also to acquire, charter, own, maintain and lawmakers that the amendatory enactment operate steamboats, power boats, vessels and would be taken as a charter before being water crafts for the transportation of all kinds adopted by the electors of a port. Nowhere of merchandise, passengers and freight for hire, in the act is it manifest that it was the legand to engage generally in the coast wise trade and commerce both domestic and foreign and in islative will that the original or amendatory transporting for hire all kinds of merchandise act should have a retroactive effect or change and freight. Also to establish, operate and the status of the existing port. If, as demaintain water transportation lines in any of the navigable waters of the state of Oregon and clared in the statute, it is necessary for a waters tributary thereto, any portion of which port to incorporate under and adopt as its may touch the boundaries of such port. Also to law any part of the statute, it is just as esown, acquire, construct, operate and maintain sential that it adopt the whole, or the amendrailroad terminal grounds and yards, and conFor a struct, operate and maintain such line or lines ment of 1915, in the same manner. of railroad, with necessary side track, turnouts port to do this works no hardship; otherwise and switches and connection and arrangements it would be possible for the Legislative Aswith other common carriers, as in the judgment of the port commissioners may facilitate sembly to pass a general law for the organwater commerce between such point and points ization of ports with little power, say 1 within the boundaries of the port as the port per cent., and after several ports were incommissioners may from time to time determine, corporated thereunder to amend the several all for hire and to carry and transport freight and to move passenger trains thereon and acts of incorporation or charters by enacting thercover for hire. Also to engage generally in a general law giving municipalities 99 per the business of buying and selling coal, fuel oil cent. of the authority, without the consent of and all kinds of fuel for steamboats and power the electors of the district. In 1906 the peoboats and power vessels of all kinds, and generally to do and cause to be done all things ple of the state changed their organic law necessary and convenient whether herein ex- and ordained as follows: pressed or not to successfully carry out the powers herein granted."

This, it should be kept in mind, should be read into the act of 1909 as a part thereof. In neither of the legislative enactments is any intention evinced to make the amendment mandatory or to in any way change

"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 munici pality, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to