Ex Parte Wagner
- Reporters:
- , , , ,
- Before:
- Williams
(after stating the facts as above). The question raised in this case is whether or not a petition
The next question is: Were said provisions self-executing on the 18th day of December, A. D. 1907? The Supreme Court of Oregon, in the case of
Stevens v. Benson
(Or.) 91 Pac. 577, held that the initiative and referendum provisions as contained in the Oregon Constitution were self-executing. The only difference between the provisions in that Constitution and those of this state is that in the former it is provided that, in submitting such petitions to the people, the Secretary of State and all other officers shall be guided by the general laws and the act submitting the initiative and referendum amendment to the people for adoption or rejection until legislation shall be especially provided therefor, clearly indicating that it was the intention in adopting the Oregon amendment that the same should then and there become self-executing. This clause does not appear in the Oklahoma Constitution. Substantially such provision was contained therein prior to the time that the constitutional convention reassembled
The Legislature carrying out the intention of the Constitutional convention with commendable fidelity, have enacted what is known as House Bill No. 174, entitled “An act to carry into effect the initiative and referendum powers reserved by the people
In the case of Taylor v. Hutchinson et al, 145 Ala. 207, 40 South. 109, the court says:
“Our Constitution contains many instances of non-self-executing provisions. Iri these cases there is always some indication that something is left for the Legislature to do, or there is something in the nature of the provision that renders such legislation necessary.”
In the case of Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626, discussing the question as to whether or not a provision of the Constitution of that state was self-executing, the court said:
“The question in every case is whether the language of a Constitutional provision is addressed to the courts or the Legislature. Does it indicate that it was intended as a present enactment, complete in itself as definite legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined both from a consideration of the language used and of the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed is fixed by the provision itself, so that they can be determined by examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing.”
See, also,Acme Dairy v. City of Astoria (Or.) 90 Pac. 153; Swift & Co. v. City of Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404;Logan et al v. Parish of Ouachita, 105 La. 499, 29 South. 975.
Section 3, art. 5 Const. (Bunn’s Ed. § 55), relating to the initiative and referendum provision, provides that “the Legislature shall make suitable provision for carrying into effect the provisions of this article.” This especially indicates that it was not the intention of the constitutional convention that said articles should become effective until made so by act of the Legislature. In determining whether or not a provision of the Constitution is self-executing, we should consider the language in the light of the surrounding circumstances and conditions under which it was adopted with a view of ascertaining the intention of the parties framing it. We accordingly conclude that on the 18th day of December, A. D. 1907, the provisions in our Constitution relating to the initiative and referendum were not self-executing, and that they did not become effective until the 16th day of Aj>ril, A. D. 1908, when the act of the Legislature herefore referred to was approved by the Governor of the state.
It is evident that if the provisions of article 5, relating to the initiative and referendum, were not self-executing on December 18, 1907, that section 4, art 18, was also not self-executing, and it results as a matter of course that the petition demanding a referendum vote on the ordinance, filed with the mayor of the city of
Hence it is not necessary, in order to properly dispose of this case, to determine whether or not, after a city or municipality passes an ordinance and it becomes effective, a petition demanding the referendum on such ordinance thereafter being filed with the proper officer, in accordance with the charter or ordinance of said city, or with the general laws of the state, would have the effect to supersede or suspend the operation of such ordinance until the next municipal election. That question is not now properly before this court for determination; it being admitted that the ordinance under which the relator was prosecuted was properly enacted and published and otherwise valid. The only question before this court now is whether or not the demand for the referendum on such ordinance had the effect to supersede or suspend said ordinance. Having reached the conslusion that at the time such ordinance was passed and published the provisions in the Constitution relating to the initiative and referendum not being self-executing, although the same have since then been carried into effect by legislation, would not entitle the relator to the relief prayed for.
Writ of habeas corpus denied.
Turner and Dunn, JJ., concur; Kane and Hayes, JJ., concur in the conclusion denying the writ.