Stated in condensed form, ORS 260.027 imposes a monetary limit upon the total expenditures that can be made in support of or in opposition to a candidate for public office. ORS 260.154 prohibits any expenditure in support of or in opposition to a candidate unless the person making the expenditure is a candidate or is acting with the prior consent of the candidate....

We are faced, then, with the initial question of whether the legislature may exercise its authority to regulate the conduct of elections by limiting the rights of individual citizens to spend money in an effort to persuade their fellow citizens of the merits or demerits of electoral candidates without violating the prohibitions contained in Article I, sections 8 and 26 of the Oregon Constitution.

Article I, sec. 8, provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject what ever; but every person shall be responsible for abuse of this right.

Article I, sec. 26, provides:

No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of grievances (sic).

If we hold that either of these provisions of the Oregon Constitution are violated by the Statutes in question, it would not, then, be necessary to discuss the effect of the federal constitution (First Amendment) because in such case it would not come into play.

Overarching all of the foregoing considerations is the inescapable fact that the limiting legislation closes or impedes important channels of communication on public issues and thus denies citizens freedom of expression where the protection of that constitutional right is the most necessary to preserve our system of government.

Defendant asks us to cast this constitutional pro

"Unlike the Congress which is dependent for legislative authority upon a constitutional grant, the state legislative power is plenary. Thus state legislation is valid unless contrary to constitutional limitation. Jory v. Martin, 153 Or. 278, 285, 56 P.2d 1093 (1936).

tection aside to meet alleged evils which are described in broad generalities and unsupported by reliable evidence. The interests described in Article I were not intended to be swept away by this kind of speculation.

Plaintiff further cross-appeals from the trial court's refusal to award him attorney's fees. Although plaintiff concedes that as a general rule American courts will not award attorney's fees to the prevailing party absent authorization of statute or contract, he correctly points out that courts of equity have the inherent power to award attorney's fees. This power frequently has been exercised in cases where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as his own. 19 We recognized this equitable exception to the general rule in Gilbert v. Hoisting & Port. Engrs., 237 Or. 130, 384 P.2d 136, 390 P.2d 320, cert. denied 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964),20 a substantially similar case to the one at hand. In Gilbert, the plaintiffs sued the union of which they were members to require fair and democratic elections. We allowed the plaintiffs attorney's fees at both trial and appellate levels because

...The preservation of the democratic process in the functioning of unions is a matter of primary concern, not only to union members but to the public as well. ... Those members of the union who in good faith seek to preserve the internal democracy of their union should not have to bear the expense of a successful suit.

237 Or. at 138, 384 P.2d at 140.

It is beyond dispute that the interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution is even stronger than that present in Gilbert. Correspondingly, plaintiff in this case, at least as much as the plaintiffs in Gilbert, should not be required to bear the entire cost of this litigation the benefits of which flow equally to all members of the public. Therefore, the case must be remanded for the determination and award of reasonable attorney's fees.

19See, Falcon, Award of Attorney's Fees in Civil Rights and Constitutional Litigation, 33 Md.L.Rev. 379 (1973); Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L. Rev. 301 (1973); Note, 24 Hastings L.J. 733 (1973). 20 See also, Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).

Discussion Notes

1. In what other contexts might state courts recognize a claim for attorneys fees?

2. All of the issues discussed in this section are thoroughly covered in Friesen, "Recovering Damages."

3. It is becoming more common for federal constitutional claims to be brought in state courts,

often joined with state constitutional law claims. See Steven H. Steinglass, Section 1983 Litigation in State Courts (New York: Clark Boardman, Co., 1987); Steven H. Steinglass, "The Emerging State Court Section 1983 Action: A Procedural Review," University of Miami Law Review 38 (May 1984): 381.

[W]e must never forget, that it is a constitution we are expounding.

Chief Justice John Marshall McCulloch v. Maryland 17 U.S. 316, 407 (1819)

Marshall's famous statement, of course, referred to the federal constitution. Should the same attitude he sought to engender with reference to the federal constitution apply when courts interpret or construe state constitutions? Do the courts exhibit a similar attitude, or do they tend to treat state constitutions more as they treat statutes? What techniques of state constitutional interpretation may be identified, and do these techniques differ from federal constitutional interpretation?

Some state constitutions contain provisions relating to interpretation. For example, Article I, section 23 of the South Carolina Constitution:

The provisions of the Constitution shall be taken, deemed, and construed to be mandatory and prohibitory, and not merely directory, except where expressly made directory or permissory by its own terms.

Article 4, Section 7, paragraph 11 of the New Jersey Constitution provides:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

The classic work on state constitutional interpretation was Thomas M. Cooley's A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, first published in 1868 and updated in numerous subsequent editions. Many courts rely on this work as authority, referring to it simply as "Cooley's Constitutional Limitations." But see, Thomas Reed Powell, "Book Review," Harvard Law Review 41 (December 1927): 272; William F. Swindler, "State Constitutional Law: Some Representative Decisions," William and Mary Law Review 9 (Fall 1967): 166 (describing Cooley's treatise as "now obsolete").

A major factor in state constitutional interpretation is the constitution's general limiting function.*

*Therefore, many of the difficult questions of judicial interpretation of state constitutions involve implied limitations on power. Walter Dodd, "Implied Powers and Implied Limitations in Constitutional Law," Yale Law Journal 29 (1919):

160:

The preceding discussion has suggested a real antithesis between constitutional construction as it relates to the national government on the one side and constitutional construction as it relates to the state government on the other. With respect to the United States, emphasis has been upon powers, and perhaps the most important single manifestation of judicial action has been the doctrine of implied powers. With respect to the states, emphasis has been upon limitations, and the most important single manifestation of judicial action has been the doctrine of implied limitations. Theoretically state powers are original powers, subject only to such limitations as appear in constitutional texts, and are to be construed liberally; national powers are granted or delegated, and should in theory receive a more restricted application. Actually the reverse is true, and limitations upon states in state and national constitutions are construed more strictly against the state than are textually equivalent limitations as against the national gov

ernment.