135 P. 3 | Okla. | 1913
The question essential to be determined in this case is as to whether, where cities having a population of over 2,000 inhabitants, having adopted a charter for its own government, under the provision of article 18 of the Constitution, without providing in said charter for the manner of *798 exercising the initiative and referendum powers reserved by the Constitution to the people of such city as to municipal matters or the purpose of amending such charter, section 3388, Rev. Laws 1910, applies. It is in words and figures as follows:
"In all cities, counties and other municipalities which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers reserved by the Constitution to the whole people thereof, as to their municipal legislation, the duties required of the Governor and Secretary of State, by this chapter, as to state legislation, shall be performed as to such municipal legislation by the chief executive and the chief clerk; and the duties required by this chapter of the Attorney General shall be performed by the attorney for the county, district or other municipality. The provisions of this chapter, including those relating to preparation of arguments, shall apply of every city and town in all matters concerning the operation of the initiative and referendum in its municipal legislation on which such city or town has not made or does not make conflicting provisions. The printing and binding of measures and their distribution shall be paid for by the city in like manner as payment is provided for by the state as to state legislation by this chapter, except that delivery shall not be less than eight days before the election at which the measures are to be voted upon. The arguments shall be completed not less than twelve days before the election at which they are to be voted upon. The procedure in municipal legislation shall be, as nearly as practicable, the same as the initiative and referendum procedure for measures relating to the people of the state at large."
In Ex Parte Wagner,
"(1) The initiative and referendum provisions in the Constitution (article 5, secs. 1, 2, 3, 4, 5, and article 18, secs. 4, 5) are not in conflict with the Constitution of the United States (section 4, art. 4), guaranteeing to every state a republican form of government. (2) Said provisions as contained therein are not self executing but are made effective by an act of the Legislature approved April 16, 1908. (3) Until said provisions were made effective by legislation, a *799 petition for a referendum filed with the chief executive officer of a municipality of the first class was of no effect."
In the opinion it is said:
"In said section 17 (section 3388, Rev. Laws 1910), it is provided that in all cities, counties, and other municipalities which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers reserved by the Constitution to the whole people thereof, as to their municipal legislation, the duties required of the Governor and Secretary of State by this act as to state legislation, shall be performed as to such municipal legislation by the chief executive and the chief clerk of such municipality. * * * Section 3, art. 5, Const. (Bunn's Ed. par. 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. * * * 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 Kingfisher on the 18th day of December, A.D. 1907, was without effect and did not operate to supersede or suspend any ordinance."
Section 4a, art. 18, provides:
"The powers of the initiative and referendum, reserved by this Constitution to the people of the state and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this state, with reference to all legislative authority which it may exercise, and amendments to charters for its own government in accordance with the provisions of this Constitution."
Section 5, art. 5 (section 55, Williams' Ann. Const. Okla.), also provides:
"The powers of the initiative and referendum reserved to the people by this Constitution for the state at large, are hereby further reserved to the legal voters of every county and district therein, as to all local legislation, or action, in *800 the administration of county and district government in and for their respective counties and districts."
In Mayor and Councilmen of City of Pawnee v. Pawhuska Oil Gas Co. et al.,
"Sections 17, 18 and 19, art. 1, c. 44, Sess. Laws 190708, vitalized the initiative and referendum provisions of article 18 of the Constitution of this state.
In the opinion it is said:
"Keeping in mind the well-known rule of construction that the meaning of the several provisions of an act are to be determined in the light of its context, including the title, it is clear that articles 5 and 18 of the Constitution, as supplemented by the provisions of said act, are enforceable. That portion of section 17, supra, which provides that the duties required by the Governor and Secretary of State by this act, as to state legislation (article 5, sec. 3, Const.), shall be performed as to such municipal legislation by the chief executive and the chief clerk thereof, harmonizes with the provisions of sections 4b and 5b of article 18 of the Constitution. There appears to be no attempt to require such petition to be filed with the city clerk instead of the mayor. * * * The duty of filing the petition as to state legislation with the Secretary of State, or mayor as to municipal legislation, rests upon the petitioners or their representatives. But if such appeared to be the reasonable construction of section 17, supra, that it was intended that such petition should be filed with the city clerk instead of the mayor, that part of said section thereby conflicting with sections 4b and 5b, art. 18, Const., would fall. The remaining portions of sections 17, 18, etc., would still stand and apply."
These syllabi are to be interpreted in the light of the body of the opinions. Ex parte Wagoner, supra, to the effect that the provisions under consideration in that case were not self-executing, has been followed in the following cases:Norris et al. v. Cross,
Section 3b of article 18 (section 330, Williams' Ann. Const. Okla.) provides for the calling by the legislative authority of any such city of an election at which a board of freeholders may be elected, and for the determination at such election as to whether or not any proceedings toward the adopting of the charter should be had in pursuance of such call.
In State ex rel. Reardon, Co. Atty., v. Scales, Mayor, etal.,
"Section 4a, art. 18, reserves these same powers to the people of every municipal corporation. This latter section was held, in Ex parte Wagner,
In none of the cases was the question as to whether said section was self-executing as to said provision of section 3a for the amendment of such charters raised. For the purpose of this case it is not essential to determine whether that portion of said section 3a is self-executing.
In State ex rel. Reardon v. Scales, supra, it is said:
"In the case of Reeves v. Anderson et al.,
See State ex rel. Lambert v. Superior Court of SpokaneCounty,
In State ex rel. Caldwell v. Hooker, County Judge,
"In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved or exceed the limitations specified. Stevens v. Benson,
See, also, to the same effect, Incorporated Town of Westvillev. Incorporated Town of Stilwell et al.,
Obviously the city of Guthrie, having framed a charter under sections 3a and 3b of article 18 of the Constitution, and not having provided therein for the exercise of the initiative and referendum as to the amendment of such charter, section 3388,supra, (section 17 of the Act of April 16, 1908 [Sess. Laws 1907-08, c. 44, art. 1]), applies as to the petition which requires a substantial compliance with sections 3369, 3370, 3371, and 3373, Rev. Laws 1910. Only a substantial compliance is essential. Palmer v. Benson,
It follows that the judgment of the lower court must be affirmed.
HAYES, C. J., and KANE and TURNER, JJ., concur; DUNN, J., absent and not participating. *804