Ex Parte Griggs , 63 Okla. 138 ( 1917 )

Petitioner was convicted of a violation of a certain ordinance prohibiting pool and billiard halls in the city of Pauls Valley and assessed a fine of $25 and costs, upon failure to pay which he was remanded to the city jail and presents his petition for a writ of habeas corpus, alleging that said restraint is illegal and unauthorized, because said ordinance under which the pretended complaint was issued and arrest and conviction had is void.

On October 24, 1916, there was filed with the clerk of said city an initiative petition demanding submission to the electors of said city of an ordinance prohibiting pool halls and billiard halls within said city, and on October 25, 1916, the mayor issued his proclamation fixing November 7, 1916, as the date for an election to be held thereon, notice of which was published in a newspaper of general circulation in four successive issues. At the election held in pursuance of said proclamation a majority of the electors voting thereon voted in favor of its adoption. On December 5, 1916, the mayor of said city issued a proclamation declaring that as a result of said election said ordinance had been adopted. On December 8, 1916, complaint was filed charging petitioner with a violation of said ordinance, and a warrant was issued and arrest made, resulting in his trial and conviction.

Section 4a, art. 18, Williams' Ann. Const., reserves the powers of the initiative and referendum with reference to all legislative authority which it may exercise and amendments to charters for its own government in accordance with the provisions of the Constitution to the people of every municipality within the state. This section and the following sections of said article were held to be not self-executing. Ex parte Wagner, 21 Okla. 33, 95 P. 435, 18 Ann. Cas. 197.

The First Legislature passed an act entitled:

"An act to provide for carrying into effect the initiative and referendum powers reserved by the people in articles 5 and 18 of the Constitution of Oklahoma, to regulate elections thereunder and to punish violations of this act. * * *" (Laws 1907-08, c. 44.)

This act provides a mode of procedure through which the people of the state and its various municipal corporations might avail themselves of the right to exercise the powers of the initiative and referendum and vitalizes said provisions. Ex parte Wagner, supra; City of Ardmore v. State, 24 Okla. 862,104 P. 913; Mayor, etc., v. Pawhuska Oil Gas Co.,28 Okla. 563, 115 P. 353.

Section 4b of article 18 prescribes the requisites for an initiative petition with reference to municipal legislation, and section 4c is as follows:

"When such petition demands the enactment of an ordinance or other legal act other than the grant, extension, or renewal of a franchise, the chief executive officer shall present the same to the legislative body of such corporation at its next meeting, and unless the said petition shall be granted more than thirty days before the next election at which any city officers, are to be elected, the chief executive officer shall submit the said ordinance or act so petitioned for to the qualified electors at said election; and if a majority of said electors voting thereon shall vote for the same, it shall thereupon become in full force and effect."

The plain meaning of this language is that, when a petition demanding the enactment of an ordinance has been filed with the chief executive officer of a municipality, he shall present the same to the legislative body of such corporation at its next meeting, and unless the legislative body shall grant such petition by enacting the ordinance therein demanded more than 30 days before the next election at which city officers are to be elected, such chief executive officer must then refer said ordinance to the qualified electors of said city at the next election at which any city officers are to be elected for their action thereon. It is admitted that the mayor did not present the petition to the city council, and that it was not submitted at an election at which any city officers were to be elected. Petitioner contends that by reason of the failure to comply with the requirements of this provision the election was invalid; while, on the other hand, it is urged that compliance therewith was unnecessary. The act passed by the First Legislature vitalizing the provisions of articles 5 and 18, with reference to municipal legislation through the powers of the initiative and referendum, is contained in Revised Laws 1910, with certain revisions, as chapter 37, entitled "Initiative and Referendum," consisting of sections 3368 to 3401, both inclusive. Section 3388 declares that in municipalities which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers as to municipal legislation the duties required of the Governor and secretary of state as to state legislation shall be performed as to such municipal legislation by the chief executive and chief clerk, and that the duties required of the Attorney General shall be performed by the attorney for the municipality.

Section 3379 of said act authorizes the Governor, whenever a petition has been accepted and its title decided upon, upon notice in writing by the secretary of state, to issue a proclamation setting forth the substance of the measure and the date of the referendum vote, and section 3394 authorizes the Governor in his discretion to call a special election when any measure shall be initiated by the people or when the referendum shall be demanded against any measure passed by the Legislature. It is contended that the mayor was authorized by reason of said provisions, to call an election upon said initiative petition, without first submitting same to the council for its action thereon. This contention cannot be sustained. While the Legislature was authorized to pass legislation vitalizing said provisions and regulating the method of the exercise of the powers therein conferred, such legislation must be in harmony with the spirit of the Constitution and its object to further the exercise of the constitutional right and make the same more available, and such laws must not curtail the rights reserved or exceed the limitations specified in the Constitution. State v. Hooker,22 Okla. 712, 98 P. 964.

A similar question was presented to the Supreme Court of Oregon in Haines v. City of Forrest Grove, 54 Or. 443, 103 P. 775, which case involved the validity of the charter of the city of Forrest Grove. The general law of 1907 (General Laws 1907. p. 398, c. 226) making provisions for carrying into effect the initiative and referendum powers reserved by the people in section 1 and section 1(a) of article 4 of the Constitution of Oregon in regard to municipal legislation, under which the charter of said city was adopted, provided in section 12 thereof that, if any ordinance, charter, or amendment to the charter of any city should be proposed by petition, such petition should be filed with the city clerk, auditor, or recorder, who should transmit it to the next session of the council, and that the council should either ordain or reject the same as proposed within 30 days thereafter, but if rejected or no action was taken thereon within that time, it should be submitted to the voters of the city or town at the next ensuing election. The council of said city by resolution approved the proposed charter and submitted it to the electors of said city in accordance with the statute. Speaking in reference to this provision, the court said:

"It will thus be seen that the manner of proceeding is clearly indicated in the general act."

And after holding that the word "ordain," in the connection used, was employed in the sense of adopt or approve, that is, that the council might either approve or reject the proposed charter or ordinance, after which proceedings might be taken as therein directed, it held that the adoption by resolution was sufficient, and that error could not be predicated upon such action by the council. In further discussion of the case it was said:

"It will be observed from section 12 of the act of 1907 that more than one way is provided by which charters, amendments thereto, and ordinances may be adopted and become operative. The first is by petition, known as the 'initiative,' by which the matter is called to the attention of the council, whereupon, if it shall not within 30 days be rejected or approved by that body, the clerk is required to submit the bill to the voters of the city, town, or proposed city or town, at the next ensuing election. Another method provided is that, in the event the proposition shall meet with the approval of the council, and they shall so ordain, it may either be submitted to the voters for their approval or rejection, or the council may declare, and thereby make it effective without such submission."

The difference between the Oregon provision and that now under consideration is that under the Oregon statute, when such initiative petition is transmitted to the council, they shall either ordain or reject the same as proposed within 30 days thereafter, while our constitutional provision requires that it shall be presented to the legislative body of the municipality at its next meeting, and unless the petition shall be granted more than 30 days before the next election, the chief executive officer shall submit the same to the qualified electors at the next election at which any city officers are to be elected. The requirement that it be submitted to the legislative body of the municipality is the same in each instance.

A similar provision is contained in Rev. St. Neb. 1913, sec. 5232. At an election held for that purpose under the initiative and referendum statute the voters of the city of Superior, in Nuckolls county, adopted an ordinance forbidding the licensing of saloons; and afterwards, at a special election held for that purpose, an ordinance was adopted relating to and regulating the sale of malt, spirituous, and vinous liquors in said city. Under this last ordinance a license was granted and remonstrators appealed to the district court, where the action of the city council was affirmed, and an appeal taken to the Supreme Court. The cause was reversed in Eyre et al. v. Doerr,97 Neb. 562, 150 N.W. 625, and the fourth paragraph of the syllabus in that case is as follows:

"When a petition for an ordinance under the initiative and referendum statute is filed with the city clerk, and 'the mayor and city council convened before such proposed ordinance can be legally submitted to a direct vote of the voters,' the clerk must 'forthwith present to such body a certified copy of the proposed ordinance.' If the proposed ordinance 'is not made law by the mayor and city council' within the specified time, the 'clerk shall submit the same to the voters.' If the mayor and council are so convened, the clerk cannot submit the ordinance to the voters without first presenting it to the mayor and council."

The requirements of section 4c that such petition shall be presented to the legislative body of the corporation at its next meeting is plain and unambiguous, and does not admit of interpretation, and it would seem to be a condition precedent that such petition be so submitted before any authority exists upon the part of the chief executive officer to submit the same at an election to the electors of said city. It will not do to say that it may be disregarded, and that a failure to observe such requirements will not defeat an election, for to do so would set at naught the will of the people with reference to such matters as expressed in this provision. That construction is recognized by the Legislature in section 3391, Rev. Laws 1910, which authorizes the legislative body of a municipality to submit with each initiative measure a competing bill or resolution, and also authorizes amendments to a municipal charter proposed by initiative petition to be submitted in the same manner and confers power upon such legislative body to order a special election to vote on a municipal measure. This section indicates that it was not the intention of the Legislature to authorize the chief executive officer of a city to submit a measure proposed by initiative petition in a manner differing from that prescribed by section 4c, art. 18, and that it was not the intention to confer upon such chief executive officer the power to call a special election upon any such measure, but it is expressly declared that special elections may be called by the legislative body, thereby excluding the idea that power to do so was conferred upon the chief executive officer.

For failure to submit said initiative petition to the city council for their action thereon in accordance with the requirements of section 4c, and because said council did not order a special election to be held thereon upon the date said election was in fact held, we must hold that said ordinance was not legally submitted or adopted, and that petitioner should be discharged.

All the Justices concur, except THACKER, J., who concurs in the conclusion.