We conclude that plaintiff's corporate status does not deprive it of "standing" to challenge Ordinance 93-1. The city argues that, even if plaintiff has standing to assert its declaratory judgment claim, the fact remains that the matter is no longer justiciable, because no voter filed a referendum petition within the time prescribed by law. Relying on State et al. v. Gibson, 183 Or. 120, 191 P.2d 392 (1948), and Smith v. Patterson, 130 Or. 73, 279 P. 271 (1929), the city argues that, because the time for filing a referendum petition has passed, no referendum now can be ordered, and plaintiff's constitutional challenge is moot. Once again, however, the city confuses the authority of the courts' authority to grant specific relief with the courts' authority to adjudicate a matter at all.
In each instance the courts declared the emergency clause invalid and ruled that the statute or ordinance was not immediately effective but that its effective date was postponed until after the lapse of time required before nonemergency measures could become effective. Significantly no question concerning the effect of failure to comply with conditions precedent to the enactment of valid nonemergency statutes or ordinances was presented by the litigants or ruled by the courts and we assume that those conditions precedent were met. What we have said of these decisions is equally true of State ex rel. Ryers v. Gibson, 183 Or. 120, 191 P.2d 392, relied on by defendants. In Sanborn v. City of Boulder, 74 Colo. 358, 221 P. 1077, on which defendants also rely, a City Council enacted an ordinance with an invalid emergency clause.
[1] The rule that strict compliance with such statutory requirements is mandatory and jurisdictional, and that failure to so comply is fatal to the referral procedure has been adopted in many jurisdictions. Kochen v. Young, 252 Iowa 389, 107 N.W.2d 81 (1961); In re Loughmiller, 3 Ill. App.2d 146, 120 N.E.2d 683 (1954); State ex rel. Kurtz v. Shaffer, 155 Ohio St. 491, 99 N.E.2d 479 (1951); Pottsville Referendum Case, 363 Pa. 460, 70 A.2d 651 (1950); State ex rel. Griffith v. City of Walnut, 166 Kan. 296, 201 P.2d 635 (1949); State ex rel. Ryers v. Gibson, 183 Ore. 120, 191 P.2d 392 (1948); Kerley v. Wetherell, 61 Idaho 31, 96 P.2d 503 (1939); Carriere v. Board of Registrars of Voters of Fitchburg, 257 Mass. 287, 153 N.E. 564 (1926); Ferle v. Parsons, 210 Mich. 150, 177 N.W. 397 (1920); Aad Temple Bldg. Assn. v. City of Duluth, 135 Minn. 221, 160 N.W. 682 (1916); In re Opinion of the Justices, 114 Me. 557, 95 A. 869 (1915); Ralls v. Wyand, 40 Okla. 323, 138 P. 158 (1914); Earp v. Riley, 40 Okla. 340, 138 P. 164 (1914); Rushton v. Lelander, 15 Cal.App. 448, 115 P. 56 (1911). In State ex rel. McQuesten v. Hinkle, 130 Wn. 525, 228 P. 299 (1924), the candidate mailed his declaration of candidacy to the office of the Secretary of State. It arrived in Olympia on the last day for filing, but after the office had closed at 12 o'clock noon.
Here the date for taking action had been fixed by Resolution of the Council as May 24, 1960. Any time before that date would be a time earlier than May 24, in other words, not later than May 23. Hence, the petition filed May 24 was not filed within the time required by Code section 408A.2. [3] It is the general rule that the time limit fixed by statute for filing a referendum petition is mandatory and jurisdictional. 62 C.J.S., Municipal Corporations, section 456 at page 876, section 456c(2) at page 882 in boldface; 37 Am. Jur., Municipal Corporations, section 215, page 850; 28 Am. Jur., Initiative, Referendum and Recall, section 28, page 455; 50 L.R.A., N.S., 221; L.R.A. 1917B 34; Ann. Cas. 1916B 824; 1 McQuillin on Municipal Corporations, Third Ed., page 567; Dubyak v. Kovach, 164 Ohio St. 247, 129 N.E.2d 809; State ex rel. Byers v. Gibson, 183 Or. 120, 191 P.2d 392, 393; In re Referendum, 383 Pa. 162, 117 A.2d 699; State ex rel. Griffith v. Walnut, 166 Kan. 296, 201 P.2d 635; Re Opinion of Justices, 114 Maine 557, 95 A. 869; Earp v. Riley, 40 Okla. 340, 138 P. 164; In re Loughmiller, 3 Ill. App.2d 146, 120 N.E.2d 683. [4] Nor may an insufficient petition be made sufficient by amendment after the time limit for filing a petition has expired.
Accordingly, defendants assert that the measure went into legal effect, and cannot now be referred. See State et al v. Gibson, 183 Or 120, 122-23, 191 P2d 392 (1948) (statute prescribing deadline for filing referendum petition is mandatory and, if a petition is not filed within that time, the ordinance becomes a law and is not referable). Plaintiff contends that the petitions were timely submitted to defendant Scott.
It has been held in other jurisdictions that the time periods in statutes providing for referendum are mandatory. E.g., Souther v. Butler, 195 Ga. 566, 24 S.E.2d 668, 671 (Sup. Ct. 1943); Kochen v. Young, 252 Iowa 389, 107 N.W.2d 81, 84 (Sup.Ct. 1961); Dubyak v. Kovach, 164 Ohio St. 247, 129 N.E.2d 809, 812 (Sup.Ct. 1955); State v. Gibson, 183 Or. 120, 191 P.2d 392, 393 (Sup.Ct. 1948); Nunn v. New, 148 Tex. 443, 226 S.W.2d 116, 117 (Sup.Ct. 1950); State v. Melton, 66 Wn.2d 157, 401 P.2d 631, 633 (Sup.Ct. 1965). See also, 5 McQuillin, Municipal Corporations, § 16.64, p. 239 (3d ed., 1969 Revised Volume); 42 Am. Jur.2 d, Initiative and Referendum, § 33, p. 682 (1969); 62 C.J.S. Municipal Corporations § 456(c) (2), p. 882 (1949).