In Re Initiative Petition No. 315, State Question No. 553, 649 P.2d 545

In Re Initiative Petition No. 315, State Question No. 553

649 P.2d 545

Okla.

1982

Check Treatment

*1 remaining in the dedica- ment with fee find successors. We passing to his

tor an created plat the dedication streets use to- the public

easement for vested in was simple the fee title

alleys and only by burdened abutting landowners

an easement.

AFFIRMED. J., BARNES,

IRWIN, J., V. C. C. HARGRAVE,

LAVENDER, SIMMS, OPA- WILSON, JJ., concur.

LA and NO. INITIATIVE PETITION

In re QUESTION

STATE NO.

Supreme Court of Oklahoma. 5, 1982.

Feb. Rehearing

Supplemental Opinion 20, 1982.

May *2 attacks

Four are made on the validity of petition: 1) imposition gate of a tax on admis- sions and a tax sale of tickets, proposed by peti- 7 of *3 tion,1 the violates Okla.Const. art. 10 20, 19, and 55. art. §§ § 2) petition2 pro- 9 of the Section option a violates the poses county vote Okla.Const. art. 5 § 3) signatures number of valid is The by votes be determined the cast for presidential the state office of elector 4,1980 at the November election rath- George Miller and by Miller & Dollarhide gubernatorial er than the election held Winterstein, Jr., City, W. for J. Oklahoma of 1978. in November contestants. 4) petition Proponents circulation of Swinford, Crowe, Thweatt, Dunlevy, ninety-day period pre- exceeded the Swinford, W. by Johnson & Burdick John by O.S.Supp.1973 § scribed Gilbert, D. Meyers, Kent Barbara Snow Jr.., City, Spearman, and C. H. Oklahoma

Edmond, for proponents. I II urge The contestants unconstitu- HODGES, Justice. petition tionality of 7 and 9 renders §§ validity petition, sufficiency The of the No is any invalid. assertion made signatures, length subscribed of the procedural steps before submission of Racing Peti- period circulation of the Horse The the petition violate the constitution.3 315, Ques- tion, Initiative Petition No. State constitutionality of 7§§ and on the assault challenged. The tion No. have been initially by 9 of countered petition is proceeding bifurcated this was ordered premature. question defense that is peti- validity Court determine Adjudication re evidentiary Supreme hear- In an Until conducting tion before Norman, Oklaho- sufficiency ing of Initiative Petitions concerning the number 74-2, P.2d 8 signatures. ma, Numbered 74-1 petition imposes gener- 1.Section 7 of the tax on the State Commission to of Oklahoma gate receipts pari-mutuel tickets: all taxes levied al revenue fund. One-third of wagers paid pari-mutuel to the shall be hereby imposed: following are taxes period Commission within reasonable (a) percent (10%) A tax of ten of the day’s racing pro- of each time after the close amount on tickets received licensee gram. grounds for admission to the where such meetings horse races are held or conduct- county petition Section 9 of the relates ed. All herein tick- taxes levied on admission option: city paid ets shall be in which to the the track pari-mutuel No racetrack shall licensed is located. city If a track not located within limits, any county majority unless the of the vot- levied on admission tickets paid county, voting county shall be ers said at an election held which the track approve conducting purpose, is located. for that pari-mutuel (b) county. percent racing A of not less tax than twelve in said An horse eighteen filing (12%) percent (18%) more than election shall be called proceeds county petition on the from the sale of board con- with the election percent (10%) taining tickets. shall The tax be divided into three ten than less equal parts county. one-third to be retained qualified voters within licensee; licensee as one-third held purses partici- trustee to pating Petition No. Ques be distributed as In re Initiative 1980). paid by (Okl. P.2d 595 horses and one-third to be tion No. (Okl.1975), petition of the constitutionality sub- infirm because it violates the ject petition matter of proposed provides art. Section 9 Okla.Const. 5.5§ the proposi- was not considered until after county option if a permit an election to passed tion was the voters.4 The rule petition containing filed ten less than was modified in Norman Petitions. The percent signatures qualified court O.S.Supp.1973 held that under 34 § con- county. voters in the The contestants raised, the if constitutional questions are re- legal tend that 16% of voters form, constitutionality procedure, petition un- quired countywide to initiate a subject if matter be considered der art. 5.§ court resolves that the determination could imposed charge Contestants that the tax prevent unnecessary an expensive and elec- on gate 7A violates art. admissions tion. by the tax imposed because is a quintessential question *4 Propo- county city purposes.6 state for or whether a determination of the constitu argument nents counter with the 7A§ tionality subject of 7 matter and §§ tax, directly impose levy does not or a nor prevent 9 costly could a and useless election. does out paying it affect of state funds. We provi find that it could. Because the Proponents argue spite the ex- of appear sions of 7 9 be integral to §§ press following language, “the parts petition, view of we do not them hereby levy or imposed,” imposition no tax We, therefore, as severable. will answer made, because order for 7 to become § challenges subject the constitutional county a a county, effective in favorable of matter and 9. §§ option must pursuant § vote take place The validity attempted imposition 20, 10, of petition. Pursuant to art. § of a tax on challenged admission tickets is pur- levy state not taxes for local attempt by contestants urging that it is an poses.7 by city state or county a tax for levy case, however, In the instant the tax on purposes. proceeds pari-mu- The tax on gate provided admissions for 7A§ tuel tickets and Oklahoma allocation to the petition has no effect even petition if the Racing alleg- Horse is attacked Commission adopted aby people statewide vote of the ing purposes. it is a tax imposed private for until county option a favorable vote takes Both the proposed challenged taxes is place particular county. pro- in a The tax they because assert contestants do not particular vided 7A coun- by authorizes § 1) require- conform: to the constitutional ty levy a tax result as the of the favor- ments that their purposes and sums dis- option able county vote whether coun- specified; 2) tinctly the constitutional ty parimutuel racing. will have horse procedure money. for appropriation of It is asserted that 7 violates the Okla.Const. “tax" The contestants contend that § 14, 19, 20, 10, 15, 5, art. is im- and art. 55. petition §§ authorized 7B of the § § Contestants also 9 of the posed contend that private § purpose in contravention district, Beverage legal Oklahomans Modem county Alcoholic ber of voters in such or Shelton, (Okl. 1972); Controls v. provided P.2d 1089 as herein therefor in State at 259, In Re Initiative Petition No. large.” Question 376, (Okl.1957); 316 P.2d 139 In Re Initia 112, 114, 117, 118, 10, provides: tive Petitions Nos. The 20§ 153 Okl. Okla.Const. art. 205, (1931); State, 6 P.2d 703 McAlister v. Legislature impose “The not shall taxes for 143, (1923); Cross, Threadgill Okl. 221 P. 779 town, purpose any county, city, or 403, (1910). 26 Okl. 109 P. 558 municipal may, by other corporation, but general laws, proper confer on the authorities 5, provides perti- 5. The Okla.Const. art. § thereof, respectively, to assess part: nent collect such taxes.” ***** requisite petitioners The number of City of Ardmore v. Excise Bd. of Carter for the invocation of the initiative refer- County, (1932); Spann endum in twice, shall Okl. 8 P.2d counties districts bear double, State, (1931). the ratio to the whole num- “tax” within not a meaning 15.8 of art. Con- art. §§ the Okla.Const. B of paragraph urge construing that because 14 and the case authorities testants § the “tax” to for two-thirds of provides § that section of the constitution.9 as licensee, and one-third be retained the tax purses, Paragraph distributed as B of 7 authorizes a

trustee to be § the mean- in an amount not pari-mutuel betting within fee public purpose is not for gift and amounts ing of art. percent, § less than four nor more than six per- private public funds donation who con which is retained the licensee Proponents to art. contrary charg sons pari-mutuel betting. § ducts by alleging this assertion refute part of betting fee is ing pari-mutuel B of 7 is paragraph § term “tax” as used bett general practice pari-mutuel with the term synonymous not “taxes” exercise the police power ing.10 14; art. the two-thirds used in § state, legislature, whether are not retained the licensee proceeds through the statewide people therefore, 15 is funds; and, art. § public suppres prohibition, process, extends applicable. gambling.11 regulation gaming sion or regulation of extends to that, police power of The as is the case It should be noted maximum amounts 7 minimum B of paragraph A of paragraph bet a licensee as a directly impose charged by the tax does B paragraph practical ting As a fee. This is the effect adoption petition. *5 of the matter, paragraph is under the first one-third nothing imposed concerning 7 of § county has a such, “tax” particular and, B unless and until a it not a as proceeds, of issue vote on the county option 10, favorable Like art. 14. meaning of § within racing. horse parimutuel whether to have wise, proceeds of the the second one-third operation by the directly imposed No tax is B, held which is paragraph to in referred B paragraph provisions terms and as to be distributed licensee as trustee horses, § charge is a participating for purses mean within the than a “tax” or fee rather reading para From an overall 10, legislative The art. ing of § 7, only obvious that B of it is graph § fee for charge or imposing extends proceeds are intended one-third of the total regula part as purses as distribution general paid to be of Oklahoma horse promotion tion the intent obviously fund. It is revenue one-third, referred remaining The racing. retain B licensee paragraph to allow the 7, paid B of paragraph to in § one-third proceeds: two-thirds of the fund, revenue general of Oklahoma for State purses as held in trust to be distributed sub such, funds” and, “public as becomes horses; other one- participating appropriation ject expenditure he sees the licensee third to be used one-third this latter legislature. Only licensee the by the fit. two-thirds retained The B paragraph fee rather referred to proceeds or a charge is in the nature of a meaning of funds” within such, “public of a tax. As the two-thirds than 90, State, 10, 14, 939 provides 256 P. 37 Okl.Cr. 11.Nelson art. 15 §§ Okla.Const. 213, State, (1927); pertinent part 88 Okl.Cr. Prickett v. as follows: (1949). ex rel. Grimes also State See P.2d “§ Taxes shall be levied and collected 570, (Nev.1931), Com’rs., v. Bd. of public purposes only ...” wherein it is stated: any nor shall ... the state make “§ ... otherwise, gift donation ... tax or “Gaming calling is in the business as a any company, corporation.” association or intoxicating selling li- same class as the quors respect tendencies. to deleterious Childers, 140, 228 P. 9. Vette v. 102 Okl. suppress may regulate it without The state 331, Childers, (1924); 197 Okl. V.F.W. v. rights any interfering inherent of those with (1946). P.2d 618 object citizenship it is the which of government protect and secure.” Assoc., See, Racing Donovan v. Eastern 393, (1949). Mass. 86 N.E.2d 903 Therefore, such as ad art. valorem 15.12 because the two- taxes. opinion § thirds meaning are not “taxes” within the County the Harmon distinguishes case of art. “public” 14 nor earlier § “state” decision in McGannon on the basis funds purview within the of art. decision § McGannon did deal requirement distribution the monies in accordance the second 19 but § with paragraph the was B does not contravene limited to the requirement, first that a purpose Oklahoma Constitution. must be stated. instance, In this it not appear does that allege para Contestants that both any imposed taxes authority under the

graphs of 7 are the refer § invalid because petition 7 of the be annually would recur- § ence to “taxes” does not meet: consti taxes, ring but, rather, be would in the requirements tutional purposes that their special nature of taxes. Under rule set specified; sums distinctly forth in explained McGannon as or distin- procedure constitutional for appropriation guished by this Court’s later decision in the money. The Okla.Const. art. 19§ case, Harmon County appears provides every act levying a tax shall purpose requirement of art. 19 would “specify distinctly § purpose inapplicable. though Even the Harmon said tax is levied” and that a tax levied and County case modifies the earlier McGannon collected for one purpose shall be devot decision, levy- act the net effect that an ed to purpose.13 another ing a special tax does set not have to forth State, 145, 124 In McGannon v. 33 Okl. P. a purpose, specific purpose but if a is stated (1912), it was “purpose” held that the tax cannot be devoted to other requirement of art. 19 was intended § purpose. Additionally, it should be noted to apply only recurring to annual previous based re- discussion imposed generally upon property the entire garding petition, challenges to 7 of the state, special and not to a tax. The premised on art. 7 does not §§ McGannon decision was in Ex followed impose most, levy tax. At it is Marler, Parte 282 P. 353 *6 legislative if a authorization for taxation (1929). pur the Contestants contend that favorable on county vote is obtained in a pose 10, requirement of is applica art. 19§ question betting. the of pari-mutuel ble to the “taxes” 7 of the referred to in § Contestants argue provisions that the petition, citing Meyer Lynde-Bowman- v. 7 contravene requirements § the Co., Darby A 480, 130 (1913). 35 Okl. P. 548 5, 55,14 Okla.Const. because 7 art. fails § § review of the Myers case indicates distinctly specify money being the sum of tax in question recurring was an tax annual appropriated. is apparent, It on based the opposed to a special Subsequently, tax. reasons previously given, that 7 of the § in State ex rel. Bd. of of Harmon Com’rs. funds, petition does appropriate public County Comm., v. Oklahoma Tax 5, and that art. applicable. is not § 155, 127 P.2d (1942), it was held that 19, the requirement second that a tax § county The contestants claim that the purpose levied for one shall not be devoted option provision, petition, vote 9 of the § purpose, another was not limited in its violates the Okla.Const. art. 5 which § application to only recurring annual requires signatures in of the votes 16% Childers, 9; supra, treasury V.F.W. v. money note Hawks v. paid “No be shall out of the Bland, Okl. 48, (1932). state, funds, 9 P.2d 720 any of this nor of its nor management, except the funds under its in provides 13. The Okla.Const. art. in pursuance § law, appropriation of an ... pertinent part: every making appropria- such law a new “Every Legislature, tion, act enacted . continuing reviving appropria- the .. an tax, levying specify distinctly pur- shall tion, distinctly the specify appro- shall the sum pose for which priated said tax is object levied ...” it to which is to applied.” provides per- 14. The Okla.Const. art. § part: tinent in Hughes ed pro- Bryan, county petition supra, to invoke initiative because it no cite county. cedures in the Contestants cannot be acted upon county at the level in held authority case been which has legislative absence of at authorization pro- option that that county vote such as the state level.15 petition vided proposed § amounts to “invocation of the initiative” Ill purview with the of art. 5. Contest- § The contestants assert that the number ants Hughes cite P.2d Bryan, 425 of valid signatures is to be determined proc- (Okl.1967)which initiative defines the votes case for the office of presidential ess syllabus in the first as follows: elector on November 1980. The official power peo- “Initiative means the records of the Election Board reflect laws, ple propose bills and and to enact 1,172,303 votes cast for of- were this to reject polls, independent them at the signatures requisite fice. The number of . legislative assembly.. 93,784, Propo- based on 1980 election. this, argue Based on contestants nents signatures contend the number of county option peti- under vote § should be determined the number of tion, legis- amounts to the exercise local votes cast for office of Governor at power, law-making lative function. November, held general election county could not voters 62,194 require' signatures. valid would county proce means initiative whether question The ultimate legalize pari-mutuel dures horse race bet Septem- time of petition, circulation ting legislative absence of statewide 1, 1980, filing peti- ber or the date of prohibi action to remove statewide criminal tion, determinative December is the legisla tions. In the absence either: as mandat- general tive date of election repeal of the the last prohibiting state statute race initiative 2.16 betting; horse a statewide ed art. Okla.Const. statutory prohibition repealing the state 2 provides The Okla.Const. art. county horse betting; race the voters of shall eight legal voters percent independent have no authority or right propose legislative have the process enact means of the initiative of votes measure on the total number based race bet county legalize ordinance to horse for the general cast at last election ting county in that county. receiving highest state number office subject. process does not extend this rely on In re Peti votes. The contestants peti proposed Until the statewide initiative (Okl.1967) in tion adopted, tion is bet legalizing *7 the November support the assertion that of vote, ting county option providing election general is the last election the county authority has conduct no No. Petition 2. In defined art. Conse county question. election on the constitutional in the held that the the Court quently, county option provided vote at cast the votes petition phrase, of the not within “the total number of does fall office enunciat- process definition of the initiative the State general the last election for proposed. police power 15. For of the The a discussion of the the so full test of the measure prohibition, suppres- referendum, encompassing power State the the second is and it regulation gaming, (except necessary sion or of see cases cited in laws as to ordered 11, supra. note public preservation the of immediate the peace, health, safety), by petition either provided by It is 2:§ the Okla.Const. art. signed by per legal voters the five of centum Legislature people bills are enact- the as other “The first the is reserved initiative, per legal eight per voters ed. of the legal centum of the The ratio centum propose right the based voters shall have the stated shall be hereinbefore measure, any legislative per general and fifteen cen- total at the number of votes cast last right legal receiving tum of the voters shall have the the for the State office election propose amendments to highest Constitution at such election.” number of votes petition, every petition such shall include proposal. Any votes at receiving highest uncertainty number of can be avoided election,” general refers to the last by scheduling filing pri- the circulation and filing of the election, precedes post- election which ensuing general or to an num- petition required contains the which poning pending the circulation until after a signatures. argue of proponents ber use general The fact election. that, Lambert, 399 pursuant to Shelton v. No. 281 re- the rule enunciated Petition (Okl.1965), general the last elec- P.2d 467 of a reduction is sults an increase instead preceding general tion means the election not relevant to the construction of art. petition. filing the circulation and of the 2.§ distinguished in Shelton was discussed and We is find the case Petition No. 281 that, be- Petition No. 281. The Court held dispositive and that the minimum number stipulated that a cer- parties cause the had Petition signatures required of valid on election, the preceding tain election was the to a vote of it may 315 before be submitted was in point.17 case 93,784, eight people represents which Petition No. proponents assert the office percent of the votes cast for distinguished. They 281 can be contend: election presidential general elector at the (1) The rule unworkable at because on November held impos- time begun, circulation is it would signatures are many sible to determine how IV necessary, 281 the (2) in Petition No. circu

computation of Contestants contend that signatures number of based reducing on the was more period later election resulted lation for Petition No. 315 and, therefore, ninety days peti the number signatures required place than question on We are not on ballot. tion invalid face.18 The basis for persuaded by arguments. these The time this Attorney contention General subsequent filing circulation and is with- timely approved ballot title without in the control proponents change; no appeal possible; was copies petition In In Re signed Initiative Petition No. a referendum (Okl.1967), Secretary Court said: shall be filed with the (90) days ninety adjournment “Provision in within Section 2 of V of after the Article relating Legislature Oklahoma enacting Constitution to initiative the measure petition, requiring order for the same which the referendum is invoked. The signed to be sufficient it must be a num- sign registered legally electors shall name, their legal equal per ber of voters to at least address, fifteen their and the name of the centum of ‘the total number votes cast at county they Any petition in which reside. general the last receiving election,’ election for the State office provision filed in accordance with this highest number votes at such signed shall not be considered. When the general refers to the last election copies petition filed, timely the Su- preceding filing petition of such preme the state shall make cause requisite signa- has thereon the number of physical made a count of the number tures." signatures appearing petition. Upon on the Supreme provided order of the Court it shall be the O.S.Supp. It is 8 in 1973 § duty Secretary pertinent part: of State forthwith published, newspa- cause to be at least one “When a citizen or citizens desire to circulate *8 per state, general of circulation in the a no- petition initiating a ture, proposition any a of na- filing apparent tice of such and the sufficien- whether to become statute law or an cy insufficiency Constitution, thereof and notice that amendment to the or for the any may purpose invoking citizen or upon legis- of citizens of the state file a a referendum enactments, protest objection petition lative the or an such the citizen or citizens shall, by petition Supreme prepared, when count such made the of Court the state, by signed by Supreme before the same is circulated or a written notice to the electors, copy file a person per- true and exact in Court of same state to the Secretary and, the office filing petition, of State with- protest sons the said ninety (90) days in filing (10) days after such an publica- filed within ten after ” petition, signed copies the thereof tion .... Secretary State, shall be filed with the but

553 10-day appeal period The period expired, be extended.19 90-day could not has statute, O.S.Supp. filed, 34 1975 applicable appeals timely exhausted. provides any person 10(A),20 who is § V wording with the of a ballot dissatisfied parties ten The may appeal title to this Court within have not raised the issue of title, Attorney sufficiency the of the ballot and the (10)days after it is filed the of is- precludes rule general consideration Secretary with General the State. previously sues which have not been proponents petition the with the The filed However, questions when raised.22 with State, ballot title Secretary and the involved, general public which nature are ap- Attorney precirculation the General for the the the large, people affect state at 18, Attorney proval August on 1980. The in- state become their parties indirect 21, approved August General the ballot title pos- terests must be protected prevent 1, circulation, 1980. After on December person the “practical injustice” sible even if 1980, petition was filed the Secre- might objected who is silent.23 have State, tary rely proponents The The title ballot must contain 10(A) for the circula- proposition gist fifty of the proposition in one hundred period Septem- tion did not commence until words or less in language couched 1,1980, ber days expiration ten after the may easily understood by people appeal position time. The basis for this The ballot in engaged practice of law.24 days is that ten person dissatisfied had popular title submitted to vote appeal the ballot approval from the deceptive electorate must be neither nor proponents’ title. to the calcula- According in voters to misleading permit order to tions, expired 90-day period time decision.25 reach an informed 1980, 29, Saturday, peti- November tion was on the business timely filed next principles It is with these mind 1, We day, Monday, December that we feel the bal constrained amend 90-day period agree.21 for circulation . .. “for provides lot title. The title ballot does not begin until title has proposed wagers; providing tax on General, reviewed been ...” Attorney collected distribution of taxes 377, Re No. In Attorney Question Initiative Petition approv- 19. The time for the General’s 9(B): 260, O.S.Supp. (Okl. 1956). al is dictated 34 1975 299 See also 34 No. P.2d 532 O.S.Supp. 10(A). 1975 § (3) days filing after “Within three of such copy Attorney title with the Gener- 541, ballot In Re No. Initiative Petition State Question al, shall, writing, notify Secretary he 310, (Okl.1979). also 601 103 See P.2d proposed title or not the ballot whether 16, (June 1980). Op.Atty.Gen.No.80-116 legal harmony law. is in form and with the proper Should title Martin, 951, (Okl. such ballot not be 561 960 22. Helfinstine v. P.2d form, General, opinion Attorney in the 1977). (3) days, duty, it shall be within said three his prepare and file a ballot title which does Ward, 20 23. Murdock v. U.S. conform to law.” 1009, (1899); Lip- 44 L.Ed. S.Ct. Comm., 597, 188 scomb v. State Ind. 199 Okl. Appeals upon question title of ballot (1948); Petition P.2d In Re Initiative O.S.Supp. 10(A): determined 1975 § City, P.2d No. 10 of Oklahoma 186 Okl. “Any person with the who dissatisfied (1940); Magnolia v. Co. Petroleum may, (10) wording of title within ten a ballot State, (1935); 52 P.2d Mas- days Attorney after the is filed same Shinn, 163 N.Y. sachusetts Nat. Bank Secretary as afore- General with the of State (1900). N.E. said, by petition appeal Supreme ballot which shall be offered substitute 9(A). O.S.Supp. 1975 § 24. 34 appeal title for the one from which the Upon hearing appeal, taken. (Okl. Cartwright, 25. Pierce title court or amend the ballot correct Stillwater, *9 City 1981); Arthur v. court, accept substitute before (Okl. 1980). suggested, may will draft a new one which chapter.” conform to this VI standing reference alone misleading explained in Propositions I This matter referred to a Referee II, supra. Paragraph B of 7 actually this Court to conduct an evidentiary hear- collected, refers to both taxes and fees ing to determine factual issues which relate with following this modification the ballot to the signa- number and sufficiency of title adopted: petition. on the tures IRWIN, J., BARNES, J., C. V. C.

Ballot Title DOOLIN, LAVENDER, SIMMS, HAR- GRAVE, JJ., concur. Initiative Petition No. 315 ALA, J., OP concurs in result. Question No. 553 ALA, J., concurring OP in result: THE GIST THE OF PROPOSITION IS My respect legal views with con- AS FOLLOWS: formity of the Initiative Petition No. 315— Shall a statute here under from those consideration —differ CREATING THE OKLAHOMA of Be- the court on points. three distinct COMMISSION; HORSE RACING I cause advocate that we to aban- return COMPOSITION, PROVIDING FOR case yesteryear doned law of overrule APPOINTMENT, TERMS OF OFFICE recent precedent, give pro- most I would AND OF THE spective COMPENSATION effect to I take. the course wish COMMISSION; change apply propose I AUTHORIZING would not this that will proceeding only but PARI-MUTUEL WAGERING ON to cases follow it. It is for I must RACING; this reason that HORSE GRANTING THE pronouncement, dissent from al- the court’s COMMISSION FULL REGULATORY though only I do judgment concur in its AUTHORITY OVER HORSE RACING insofar as it holds that inasmuch as Petition WHERE PARI-MUTUEL WAGER- No. 315 present-day legal require- meets ING IS CONDUCTED AND PARI- ments, it is protestants’ not vulnerable to THEREON; MUTUEL WAGERING procedural challenges. PROVIDING FOR LICENSING OF RACE TRACKS WHERE PARI-MU- I. CONDUCTED; TUEL WAGERING IS In our constitutional order courts will not ESTABLISHING A TAX GATE ON pass upon the validity legislation in ad- ADMISSIONS A AND TAX AND vance of complaint for its adversarial WAGERS; FEES ON PARI-MUTUEL testing injured opera- one who PROVIDING FOR DISTRIBUTION tion. The party who invokes the COLLECTED; OF AND TAXES FEES comply legislation annul failure to REQUIRING RECORD KEEPING BY our to show law able fundamental “must be HOLDERS; LICENSE PROVIDING invalid, only but statute is FOR OPTION; COUNTY DI- AND he immediately has sustained or dan- RECTING THE LEGISLATURE TO ger sustaining injury some direct as the ENACT LAWS GIVING EFFECT TO result of its enforcement”.1 Mindful of this STATUTE, THE principle we early declined —as as 1910—to be adopted by people? entertain attacks launched on the constitu- YES —FOR THE STATUTE tional validity of being proposed measures NO —AGAINST THE STATUTE adoption peti- means an initiative Mellon, Valley Authority, wander v. Commonwealth Massachusetts Tennessee 297 U.S. 447, 488, 466, 482, U.S. 43 S.Ct. L.Ed. S.Ct. 80 L.Ed. 688 [1935] Ullman, [1923]; 497, 505, (Brandeis, J., Poe v. concurring). U.S. [1961]; S.Ct. 6 L.Ed.2d 989 Ash-

555 II. recognized v. We Threadgill tion. Cross.2 premature testing proposed that of judicial 2, provides legis that Art. 5 Okl.Const. pre- legislative pro measures would invade the measures to be lative or constitutional be posed supported be the initiative must by laws shall rogative “to determine what “legal of prescribed percentage the departments leaving it to the other passed, is to “based percentage That be voters.” validity of determine the question to at the upon total number of votes cast the to en- laws when come be only they [Emphasis last election ”. general added]. rights they against whose forced some one in Art. A which is contained provision, like The court’s deference to self-im- affect.”3 ini-; Okl.Const., municipal 4(b), governs 18 § deep histori- posed with abstention —a rule issue At petitions. tiative and referendum charac- tripartite roots from the cal derived the phrase the “at meaning here is the of an end our government ter of —came to an election”, is applied last as it general Supreme Court opinion 1975 when the In re was filing pre-circulation whose from stric- Adjudication, etc. freed us next days less than 90 before effected I so Because clearly perceive grave tures.4 general post-circulation election and whose from danger system our constitutional In a such election. submission came after pronouncing abstract risky enterprise we held case, Lambert,7 1965 v. Shelton formu- hypothetical questions opinions upon general means the phrase that quoted advance, adoption by lated in law’s pre-circu- precedes election which next proposing those with selfish interests years Two filing petition. lation I measures,5 would return the opposing pronouncing rejected later this view we election”, as teaching Threadgill court to general that the term “last n Okl.Const., 2, refers I must therefore in Art. employed progeny.6 abstain from post-cir that occurs before election joining in proposed the view that the meas- filing petition.8 culation impervious ure is to attack on constitutional I believe grounds. On this issue—which pronounce- I return us to the would express no been prematurely change have raised —I post-Shelton ment in Shelton. specula- encourages view. uncertainty creates may 403, [1910], invalid. It be that encroached to be 2. 26 Okl. 109 P. 558 government powers all whose are adminis- 2, Cross, supra 3. note Threadgill 109 P. at v. department be one administered tered 563. expense government with less than a existing kind in this state and in the other Okl., etc., Adjudication, Supreme In re Union, powers are in which the states of 3, [1975], P.2d but, so, departments; if different exercised judicial testing dangers premature from adopt- presumed people must be correctly proposed measures were assessed government present so with ing form of did 2, Cross, supra in' note 109 P. at Threadgill v. notwithstanding knowledge of that fact this court stated: “We have not where government preferred powers their argument proposed if the overlooked the indepen- separate and be these administered bar will compact void amendment in the case at [emphasis departments...” added]. dent because with between in conflict Congress, the fed- the state and authorized State, 221 P. 96 Okl. 6. McAlister v. Constitution, Secretary if eral may expense and the State, [1923]; 219 P. McAlister petitions, great to file refuse [1923]; In Initiative 33 A.L.R. 1370 re people will be incurred to [1931]; Petitions, In re 6 P.2d 153Okl. holding election. The same state useless etc., Okl., P.2d Petition No. 259 Initiative equal, argument applied if could [1957], greater force, right of courts to sustain the enjoin void act of the the enactment Okl., Lambert, 399 P.2d Shelton hap- infrequently Legislature, it not because [1965], pens Legislature much time that a consumes pass- expense the state in and ing much incurs valid, they but No. State Ques- which think In Initiative Petition laws re 441, Okl., [1967], determine at the instance the courts tion rights have been some suitors whose interested *11 worse, prescribed tion and it gamesmanship. What O.S.1961 8. The current § gives unwilling to take virtually proponents bars version of adopted 1975,11 § gamble a signatures on the of proponents (D) very number subdivision —in —the power will same invoking option initially be needed from as that af- which was forded them in 1965. 8 and 9 must Sections every general 90 days within pari together. They construed are short, power election. In to people’s materia. Nowhere is there in 8§ either is severely propose laws9 restrained to intent legislative § judicial indication pronouncement propo- that requires suspend arrest, ballot during the time nents aof days measure to wait 90 —until fixed title proceedings are in progress, after general the next election —to deter- for com- 90-day period prescribed § mine signa- with certainty the number pletion clearly of circulation. Circulation tures have to constitution them requires does with, begin by, and contin- triggered for a valid ex- exercise power from, ues to run petition’s date of the pressly reserved to the their people fun- pre-circulation filing. post-1965 When damental law. post rule leaves -Shelton amendments light are viewed in of anteced- the people’s precious right guesswork to practice, ent it at apparent once gamble, unwilling with those to take a phrase in 9D the “the ballot § to effect that chance being virtually barred from action title be processed shall . . . to the prior and forced to await the of the next results . petition” circulation . . intend- was election. ed merely permit process to take constitutional of the electorate place completion petition’s before the down, to initiate law if surely is watered either circulation. There is no warrant burdened, not impermissibly circula- when 8 or postponing § the commence- § tion cannot be time with begun at ment the out- 90-day period beyond absolute certainty sig- as to the number come of The clear proceedings. ballot title required natures legally to make the efforts legislative met purpose amply is thus efficacious. I would not leave in effect a construing 9D to the crucial phrase § rule of severely constitutional so law which mean [may] that “the ballot title ... people’s burdens the to initiate meas- right prior processed [completion] ”13 ures at will. Any ... other circulation meaning quoted phrase places in the hands of the III. proponents self-generated device for uni- statutory laterally extending peri- the fixed Before the 1965 amendment 34 O.S. pre-circulation post-circula- od between approval proposed of a ballot title § tion filings gives advantage them to a proposed its measure had to await longer campaign publicity cap- post-circulation filing approval for and final turing public attention. submission to The original a vote.10 legisla- tive language propo- authorized I would therefore overrule deci- prior our nents “pri- to submit proposed ballot title sion that allows commencement of or to peti- the circulation of the initiative period postponed § circulation be- tion” made no reference to effect completion yond proceedings ballot title would have 90-day period on the circulation under 9D. supplied give and new Art. 5 words Okl.Const. the statute that meaning necessary legis- which is to effectuate Okla.Sess.L.1965, p. ch. 34 O.S. harmony. lative intent and Co. v. WRG Const. Supp.1965 9.§ Hoebel, Okl., [1979],

11. 34 O.S.Supp. 1975 9.§ Proposed 14.In the Matter of the Ballot Title O.S.Supp.1975 12. Now 34 § 8. 541, Okl., State [1979]; 601 P.2d 103 Question also, Opinion see 80-116 the Attor- legislature Whenever the intention of the ney General, dated June appears clear from a consideration of enact- pari materia, ments in language be altered as mission tort and is an in its assault. A tax join

Because I the court cannot ac- very ‘occupation or a tax’ ‘property I so tax’ precedent commitment deem cording is, actually harmful what it the same symmetry the law’s convex, lens is a coin is judi- concave principles accord time-honored gold. essentially dif- They silver or restraint, only judgment in the cial I concur *12 ferent, their in their character and both 315 is as it that Petition No. insofar holds mission; a the sole mission or function of procedural not protestants’ vulnerable to revenue, being to and property tax raise challenges. the is mission

when revenue collected its imposes condi- fulfilled. It never is ON SUPPLEMENTAL OPINION places any upon nor the tions restrictions REHEARING of a use of nor the exercise property LAVENDER, Justice: tax,’ ‘license privilege. The mission a Protes- Rehearing, tax,’ tax,’ ‘occupation by In their Petition or or ‘privilege opinion in urge may tants first error the be species whatever name this of tax 5,1982: February called, by regulate given rendered this Court on is to a busi- always a

ness, right engage or control the to occupation. is a con- given imposed It as I. or conditions as an element the dition option county “By ruling that given privi- exercise upon right to a Petition, will vote, and not the Initiative regu- to lege, primary being its mission tax, or this impose levy a Honorable control, tax itself late and and while the impose a can county has ruled voters in condition, yet may always sole tax, being a the one-third State or a invariably part a payment its is made made, wagers charged to on 12% 18% which a upon conditions factor provided as paid to the of Oklahoma statute by conducted business sup (Emphasis 7B of the Petition.” other tax is levied. In under which such plied.) words, object purpose primary In violation of support, allege Protestants occupation which levies an every statute 7, 9, Constitution, Art. §§ the Oklahoma to regulate tax is conduct 20, 26, affected. business arguments are based The of Protestants to species tax or “The kind of a upon misapplication a misconstruction and it by giving belongs it is not made prompted provisions, these Constitutional chang- name, by species changed a nor its “tax- term by generic the use therein enact- name, ing by legislative its either used, the assuming es” and that as therein prop- a decree. It is judicial ment Ini- to the relate provisions Constitutional according erty occupation tax or an tax is tiative Petition before us. Such under given mission the law case. which it levied. tax,” The between a “license demarcation taxes power levy “The to the two tax,” tax,” “occupation on “privilege govern- sources of derived from different hand, one the other “property police tax” on tax occupation ment —the from hand, re is set forth in detail in In Skelton tax property while the power regulate, Tax L. & Z. Production Co.’s Gross is from to raise revenue. power following 1919,1 the language: validity of taxes is tested the two principles determined under different “There no excuse for a confusion tax is taxes, occupation of an validity law. The occupation the two kinds whether question separate determined property They taxes. such a taxes, levy at all power distinct state has the species distinct police their at all tax —whether it is within from each in their kind and other (1919). 1. 81 P. 495 Okl. ity. tax, Wiggins See

power impose Ferry of a state such a Co. East St. regulatory Louis, its attendant conditions. [365], Sup.Ct. U.S. validity [264], 419; tax is not property 27 L.Ed. Western Union Tel. Mass., power Atty. [530], determined whether a state has Co. Gen. 125 U.S. tax levy power Sup.Ct. 961, 965], because such [964, inherent, L.Ed. 790. For further In power necessary to raise the illustration: Gay, Sup.Ct. Thomas v. government being revenue for inherent U.S. itself, 42 L.Ed. of mills very in the tax government fact Territory dollar levied Oklahoma validity of such tax is determined grazed upon rate, cattle an Indian reservation the law its uni- governing its under a federal lease was held be a formity, reasonableness excessive- property valid tax because it was a ness, tax discriminatory or whether it is within proper scope confiscatory, or whether the manner *13 revenue, raise yet, and if territory its assessment and collection is regular sought impose had to a tax of one-tenth irregular or ‘taking constitutes without graze of one mill upon right the mere to process law,’ due amounts to ‘denial reservation, upon payment cattle such equal protection under the law.’ The being tax upon of such made a condition basis of an occupation tax lies in the right the mere to exercise such federal police power regulate, to but the basis of agency, such tax would at once been have property a tax ‘inherent’ in very invalid, yet declared the burden of such governmental protection fact of prop- upon tax instrumentality such federal erty. The proceeds fact of an would have been only part heavy 1/240 as occupation tax may constitute a portion as the tax which the court held to be or the sole source of revenue does not valid; being lighter reason mission, its change nor make it tax was one which very in the nature of less occupation an tax. Nor does the fact of government our dual form a state has that an occupation upon tax levied an levy, no it being occupation an ad valorem basis render the less an tax, tax, tax, while the other the property occupation tax. quite This method is fre- though 240 great, times as was held be quently adopted, might some cases valid, being upon the private lessees’ just be the most and reasonable measure having property a taxable situs within a such tax. Both kinds of may territory. questions same were be levied upon the property, same involved, and same decision rendered in both upon be levied basis, an ad valorem Wagoner Evans, v. 170 U.S. 18 and both be may valid. Or both be inval- Sup.Ct. 42 L.Ed. 1154. id; the property tax because it is exces- “Upon principle the same pro- ‘net sive or discriminatory, occupation and the ceeds tax’ Nevada was held to be valid tax because the state has no power to Gracey, in Forbes v. U.S. L.Ed. levy it. Neither does the fact alone that given may tax be a upon burden ‘gross “And the products Colorado tax’ given business constitute a as test upon mining government claims from the what is, kind of a tax it nor does the Wood, upheld was in Eider v. U.S. or weight amount of such burden alone Sup.Ct. 263, L.Ed. 464. constitute a test as to its validity. A tax may burden, “Upon ‘gross be a very principle onerous same and still valid, perfectly receipts be tax’ was upheld or it of Minnesota very so slight Minnesota, Express as U.S. v. 223 U.S. perceptible constitute no Co. bur- den, yet invalid; wholly Sup.Ct. 56 L.Ed. nor does the fact alone weight of such Dredging Gromer “And in v. Standard burden upon be indirectly agen- a federal Co., 499, L.Ed. Sup.Ct. U.S. cy either change the character of tax held Porto Rican tax was constitute an exclusive test as to its valid- valid. provisions al such tax, as are weight or its cited

“Therefore the Protes- cents, effect in is not of itself dollars tants. validity, a test of its kind. of its nor Caldwell,7 In we held that Thurston “A tax constitutes a burden property Art. 20 of the Constitu Sec. Oklahoma upon given only business extent impos preclude tion not the state from did tax, an occupa- amount but as insofar ing municipal purposes taxes for conditions, tion tax if ancillary cities, counties, relate to acts paid, may stop altogeth- the business townships. er. .. .” Missouri, In R. Meyer,8 K. & T. Co. the con- While was overruled Skelton apply Art. 19 did held that the Court in clusion therein drawn receipts imposed upon tax gross v. Oklahoma

Apache Corp. Gas Products coal, oil, gas, or other ores. production of wherein this Tax Com’n2 Court held that “gross production property tax” is not a tax we Marler,9 upheld In a law Ex Parte but an tax occupation license an cities towns assess permitting (see occupation gas natural producing con- occupational building or license tax on 2), two Syll. the distinctions between revenue purposes. tractors for as as types quoted “taxes” herein imposed regu- charges may be License today they valid were then. lation, revenue, *14 for or for both. by “tax” terms imposed Whether the control, regulate, pro- power to thus or to cog- given of the Initiative Petition are thereby duce and revenue control tax,” tax,” “occupation nomen of a “license rests occupation exercise of the involved tax,” its effect “privilege operational or, legislature,10 the sound discretion of the “property it clearly distinguishes from here, peo- as in the sound discretion tax” contemplated Constitutional through process. ple speaking to, provisions provisions referred and those do not here.3 Thus we have held that apply a “franchise excise imposing statute II. or other against every corporation tax” allege Protestants next for each organization business of $1.25 promulgated to the ballot title amendment $1,000 declaring that the used and capital Initiative Petition makes the this Court right granted “tax” for the imposed materi signatures for which was circulated exist, law is an tax” and not state “excise is to title that ally from the ballot different that a tax tax”;4 munici- “property presented to the voters. pal is an “excise swimming pool receipts made say, it to the modifications Suffice tax”;5 “property and and that tax” merely were ballot title the Court partic- against levied “special assessments” not in did for further clarification for bene- ular property payment to enforce form of taxes”;6 way effect the substance or “general fits thereon are do not title, therefore circulated ballot ef- operational because the nature and Initia- declaring the levies, grounds from the constitute for fect of such removed of Constitution- tive Petition void.11

restrictions and limitations (1914). 7. 40 Okl. P. Okl., (1973). 2. 509 P.2d 109 3. 103 A.L.R. 18. 140, (Okl.D.C.1913). 8. 204 F. Company

4. v. Tax Scott-Rice Oklahoma Com- (1929). 9. 282 P. 353 140 Okl. mission, Okl., (1972). P.2d 4. 10. 51 Am.Jur.2d Licenses and Permits § Enid, City 5. In Re 158 P.2d 348 Okl. (1945), A.L.R. Estes, 142 P. Cress O.S.1971, (1914); (5), City No. Five Dist. Idabel School Okl., Co., (1967). McCurtain 434 P.2d 285 or fee purses for as part distribution as III. the regulation promotion pari-mutu- ground Protestants’ asserted in the final el words, horse racing.” In other it is with- Rehearing Petition for is: police power legislatively regulate ‘fee,’ interpreted by “The 8% to 12% racing. and control horse Court, this Honorable when considered with regulated primarily means which it is is other provisions the Initiative Petition a legislative patently matter unless unrea- charge which allows for their licensees sonable, discriminatory. arbitrary, or We services, excessive; effect and its say employed regulatory cannot means promote a valid ex- wagering, which is not in the Initiative unreason- Petition are so police power.” ercise of the State’s able, as to arbitrary, discriminatory As L. we heretofore said in In Re Skelton struck down as a matter of law. & Z. Co.’s Gross Tax for Production The Petition herein Rehearing filed tax supra: “The occupation of an validity by Protestants is overruled. a state question determined whether has power a tax— levy at all IRWIN, J., J., BARNES, C. C. V. whether it is at police all within the DOOLIN, HODGES, SIMMS, HARGRAVE tax, a state to impose such a WILSON, JJ., concur. regulatory (Empha- attendant conditions.” added.) sis ALA, J., stated in OP abstains for reasons In Jack Shops Dry Lincoln v. State Clean- opinion his herein. we (Syllabus ers’ held Board12 by1 Court): Legislature

“The primarily the judge

of whether facts and exist conditions

make busi- advisable certain be regulated good,

ness public *15 power,

under the police and as to what it, adapted means are best regulate SCOTT, Appellant, Ozol every possible presumption indulged in favor the correctness of such finding, although the courts Oklahoma, Appellee. The STATE of may hold views inconsistent the wis- No. F-80-352. dom such legislation, they may not it annul being violation of substan- Appeals of Criminal of Oklahoma. tive process due unless clearly irrele- vant policy July Legislature may adopt arbitrary, unreasonable or dis-

criminatory.”

What we said Jack Shops Lincoln ap-

plies equally to legislation by Initiative Pe-

tition.

We opinion did not in our

February 1982, hold, as Protestants al

lege, “that police power the state

extends to the promotion gaming

gambling.” legis What we said “The was:

lative imposing charge extends to (1943), appeal P.2d 332 dismissed 320 U.S. S.Ct. L.Ed.