2, Cushing v. Harlow (In re Number)

• Decision Date: 16 February 1932
• Docket Number: Case Number: 22516
• Citation: 157 Okla. 54,1932 OK 124,10 P.2d 271
• Parties: In re INITIATIVE PETITION No. 2, CUSHING, OKLAHOMA. JURNEY et al. v. HARLOW et al.
• Court: Oklahoma Supreme Court

1932 OK 124

10 P.2d 271

157 Okla. 54

In re INITIATIVE PETITION No. 2, CUSHING, OKLAHOMA. JURNEY et al.

Case Number: 22516

Supreme Court of Oklahoma

Decided: February 16, 1932

Syllabus

¶0 1. Constitutional Law--Statutes -- Rule of Construction Applied to Constitutional Provisions and Legislation Vitalizing Same.

In construing a provision of a Constitution the primary inquiry is to ascertain the intention of the framers, and of the people who adopted the same, and in such construction and determination technical rules should be disregarded, and, as a rule, a mean between a strict and liberal construction followed, and when ascertained, such intent must govern. The same rule applies as to the intent of the Legislature in vitalizing such provisions and in enacting legislation to prevent corruption in making, procuring and submitting initiative and referendum petitions.

2. Same--Legislation Supplementing Self-Executing Constitutional Provision.

Though a constitutional provision may be self-executing, yet legislation may be desirable for the better protection of the right secured, and to provide a more specific and convenient remedy for carrying out such provision.

3. Statutes--Rule of Construction of Ambiguous Statute.

If a statute is susceptible of two interpretations, that should be adopted which gives the statute the effect evidently intended by the Legislature, especially if the other construction would render the same invalid.

4. Constitutional Law--Statutes--Construction of Initiative and Referendum Provisions.

In arriving at the intention of the framers of the Constitution relative to the initiative and referendum provisions contained therein and of the people who adopted the same, we must construe the applicable portions of sections 1, 3, and 8 of article 5 and sections 4 (a), 5 (a), and 5 (b) of article 18 together. In arriving at the legislative intent we must construe together the acts of the Legislature making suitable provisions for carrying into effect the provisions of the Constitution and the provision to prevent corruption in making, procuring and submitting initiative and referendum petitions made mandatory upon the Legislature by section 3 and section 8 of art. 5 of the Constitution, respectively.

5. Statutes--Municipal Corporations -- Initiative and Referendum Provisions -- Procedure for Cities--Filing of Petitions With City Clerk.

Section 2, chapter 107, Session Laws 1910-11, now section 6631, C. O. S. 1921, was enacted by the Legislature in accordance with a provision of section 3, art. 5, of the Constitution to carry into effect the provisions of initiative and referendum and prescribe the method of procedure for submitting and voting proposed amendments to the Constitution and other initiative propositions provided for in the Constitution. Chapter 44, art. 1, Sess. Laws 1907-08, was enacted to vitalize the initiative and referendum provisions of the Constitution of the state of Oklahoma. Section 17 of art. 1, ch. 44, now section 6647, C. O. S. 1921, provides that in all cities 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 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 the chief clerk of such city. Construing sections 6647 and 6631 together, we hold that when a citizen, or citizens, of a city which has not by ordinance or charter provided for the manner of exercising the initiative and referendum powers reserved by the Constitution to the qualified electors thereof, desires to circulate a petition initiating a proposition of any nature, whether to become an ordinance or an amendment to its charter or for the purpose of invoking a referendum upon legislative enactments, such citizen, or citizens, shall, when such petition is prepared, and before the same is circulated or filed by electors, file a true and exact copy of same in the office of the chief clerk of said city and within 90 days after the date of such filing, the original petition shall be filed in the office of the chief clerk of said city, and no petition not filed in accordance with such provision shall be considered.

6. Same--City Clerk's Duty to Publish Notice of Filing.

When such original petition is filed in the office of the chief clerk of said city, it shall be the duty of the chief clerk to forthwith cause to be published in at least one newspaper of general circulation within the city, a notice setting forth the date of such filing.

7. Same--Right of Protest and Hearing Thereon.

Any citizen or citizens may, within 10 days after such publication, by notice in writing to the chief clerk of said city and to the party or parties who filed such petition, protest against the same, at which time said chief clerk shall hear testimony and arguments for and against the sufficiency of such petition.

8. Same--Right to Revive Abandoned Protest.

A protest filed by any one, being abandoned by the party filing same, may be revived within 5 days by any other citizen of said city.

9. Same--Decision on Sufficiency of Petition--Right of Appeal to Supreme Court.

After such hearing the chief clerk of said city shall decide whether such petition be in form as required by the Constitution, statutes, and provisions of the charter then in force, and his decision shall be subject to appeal to the Supreme Court of the state.

10. Same--Notice of Appeal Served on City Clerk.

It shall be the duty of the appellants to serve notice upon the chief clerk of the said city in writing of such appeal.

11. Same -- Procedure for Submission of Franchise Ordinance--Effect of Affirmative Vote.

If the chief clerk of said city shall hold an initiative petition and franchise ordinance sufficient in form and no notice of appeal be served upon him in writing within 10 days, he shall notify the chief executive officer of the city of such finding, and the petitioners may then present such petition and proposed ordinance to and file the same with the chief executive officer of the city, and the chief executive officer of the city shall within 10 days after said petition and approved ballot title are filed with him call a special election at which he shall submit the question of whether or not such proposed franchise shall be granted, extended or renewed in accordance with the demands of such petition, and if at said election the majority of said electors voting thereon shall vote for the granting, extension, or renewal of such franchise the same shall be granted by the proper authorities at the next succeeding regular meeting of the legislative body of the city.

12. Same--Decision on Appeal--Mandate of Court Compelling City Clerk to Comply With Statutory Requirements.

If an appeal is taken, this court secures jurisdiction of the chief clerk of said city by virtue of the notice served as provided for by law and on finding an initiative or referendum petition sufficient it may by its own mandate compel said officer to comply with the statute requirements.

13. Same--Effect of Appeal--Trial De Novo.

The appeal from a decision of the chief clerk of a city to the Supreme Court under the provisions of section 6631, C. O. S. 1921, is a transference of the proceeding to this court for a trial de novo and it has jurisdiction to hear and determine the same.

14. Same--When Initiative Measure "Proposed."

An initiative measure is proposed when it is found to be sufficient in form by the authority authorized by law to pass upon and determine the sufficiency thereof and such finding and determination has become final.

15. Same -- Substantial Compliance With Statutory Procedure.

The procedure prescribed by law for vitalizing and carrying into force the initiative and referendum provisions of the Constitution is not mandatory, but if substantially followed will be sufficient. If the end aimed at can be attained, the procedure shall be sustained; clerical and mere technical errors shall be disregarded.

Original proceeding by Doyle Jurney et al. invoking the original jurisdiction of the Supreme Court to a superintending control over the chief clerk and chief executive officer of Cushing, Okla., in proceedings in Re Initiative Petition No. 2, Cushing, Okla.; George Harlow et al., protestants. Order in accordance with opinion.

Poe, Lundy & Morgan and H. R. Duncan, for plaintiffs in error.

S. J. Berton, City Atty., City of Cushing, Okla., and Lydick & Brett, for defendants in error.

SWINDALL, J.

¶1 This matter was begun by the circulation of an instrument labeled Initiative Petition No. 2, Cushing, Okla, whereby the petitioners, Doyle Jurney et al., as legal voters of the city of Cushing, Okla., sought to have submitted to the qualified electors of that city for approval or disapproval a certain franchise according to the terms of which the Interstate Power Company, a Delaware corporation, was to be granted a franchise for a period of 25 years for the operation of an electric light system in the city of Cushing, Okla. The city of Cushing maintains its city government under a charter. It is urged by George Harlow et al., protestants, and herein styled defendants in error, in their brief, that an exact copy of the petition and proposed ordinance was not filed in the office of the chief clerk of the city before the petitions were circulated, and that the chief clerk did not, when the original petition was filed in his office, forthwith cause to be published notice setting forth the date of such filing and advising any citizen of the city of his right to protest as required by section 6631, C. O. S. 1921. This contention does not seem to be well taken. The record shows that a true and exact copy of the petition and proposed franchise ordinance were filed in the office of the chief clerk and the chief...