Atwater v. Hassett

• Citation: 1910 OK 299,111 P. 802,27 Okla. 292
• Decision Date: 26 October 1910
• Docket Number: Case Number: 2061
• Parties: ATWATER v. HASSETT et al.
• Court: Oklahoma Supreme Court

1910 OK 299

111 P. 802

27 Okla. 292

ATWATER v. HASSETT et al.

Case Number: 2061

Supreme Court of Oklahoma

Decided: October 26, 1910

Syllabus

¶0 1. STATUTES--Constitutional Law--Elections--Amendments to Constitution--Initiative--Titles of Statutes. (a) An act entitled "An act carrying into effect provisions relating to the initiative and referendum; prescribing the method of procedure for submitting and voting for proposed amendments to the Constitution and other propositions, and prescribing the method of appeal from petitions filed or from the ballot title; repealing sections 6, 7, and 16 of article 1, chapter 44, of the Session Laws of Oklahoma 1907-08," is not repugnant to section 57 of article 5 of the Constitution.

(b) Said act is neither repugnant to sections 2 and 3 of article 5 of the Constitution, nor sections 1 and 3 of article 24, of the Constitution of this state.

(c) Section 4 (a) of article 3 of the Constitution, an amendment adopted at the election on the first Tuesday in August, A. D. 1910, is not invalid for the reason that it was submitted at the primary election held "throughout the state," at said time, and not at the general election to be held "throughout the state," for the election of state officers on the second Tuesday of said year.

(d) Said section 4 (a) of article 3, supra, is neither repugnant to sections 1 and 7 of article 3, nor section 6, art. 1, or any other provision of the Constitution.

2. CONSTITUTIONAL LAW--Elections--Equal Protection of Laws--Rights and Immunities. (a) Said section 4 (a), art. 3, Const., supra, is neither in violation of the fourteenth nor the fifteenth amendment to the federal Constitution.

(b) Nor is said provision invalid on account of the following provision in section 3 of the Enabling Act:

"* * * The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence."

Error from District Court, Oklahoma County; John J. Carney, Judge.

Action between Joseph Atwater and W. T. Hassett and others. From the judgment, Atwater brings error. Affirmed.

Kane, J., dissenting in part.

Wiley Jones, for plaintiff in error.

C. B. Stuart and W. A. Ledbetter, for defendants in error.--Citing: Cook v. State of Tennessee, 13 L. R. A. 183; May & Thomas Hardware Co. v. Mayor, etc., of Birmingham, 123 Ala. 306; Minor v. Happersett, 21 Wall. 162; Williams v. Mississippi, 170 U.S. 220.

Burford & Burford and Devereux & Hildreth, amici curiae.--Contending, inter alia, that the amendment in question is in conflict with the fourteenth and fifteenth amendments of the Constitution of the United States: Wiley v. Sinkler, 179 U.S. 58; Swofford v. Templeton, 185 U.S. 487; Ex parte Yarbrough, 110 U.S. 651; Carey v. Carter, 48 Ind. 327; State v. Schlitz Brewing Co., 104 Tenn. 715; Yick Wo v. Hopkins, 118 U.S. 356; Pope v. Williams, 193 U.S. 621; Railway Co. v. Mathews, 174 U.S. 105; Pembia, etc., Co. v. Pennsylvania, 125 U.S. 181; Lyman v. Martin, 2 Utah, 145; Home Ins. Co. v. People, 134 U.S. 594; Maxwell v. Dow, 176 U.S. 581; Ho Ah Kaw v. Nunan, 5 Sawy. 552; Ex parte Garland, 4 Wall. 333.

WILLIAMS, J.

¶1 The following questions are raised: (1) Is section 4 (a) of article 3 of the Constitution, as adopted at the election on the first Tuesday in August, A. D. 1910, invalid for the reason that said amendment was submitted at the primary election held "throughout the state" at said time, and not at the general election to be held "throughout the state," for the election of state officers on the second Tuesday of November in said year, and was not submitted under any valid procedure for the amendment of said Constitution? (2) Is said provision in violation of the fourteenth or fifteenth amendments of the federal Constitution, or section 3 of the Enabling Act?

¶2 1. Said amendment was submitted by virtue of the act of March 17, 1910 (Sess. Laws 1910, pp. 124, 125). This court, in Re State Question No. 10, 26 Okla. 554, 110 P. 647, held that said act became effective on the date of its passage and approval by the Governor. It is urged, however, that the title of said act is violative of section 57 of article 5 of the Constitution, and for that reason said act falls. The title of said act relates primarily to one subject only, namely, the "carrying into effect provisions relating to the initiative and referendum" (Const. art. 5, § 58) by prescribing the method of procedure for submitting and voting for amendments to the Constitution and other propositions under such initiative and referendum powers and a method of appeal from the action of the Secretary of State relative to the ballot title, etc., and repealing sections 6, 7, 16, of article 1, c. 44, Sess. Laws 1907-08, which were a part of the act of that session to "carry into effect the initiative and referendum provisions." This title appears not to be repugnant to article 5, § 57, of the Constitution. State ex rel. v. Hooker, County Judge, 22 Okla. 712, 98 P. 964; Rea, County Clerk, v. Board of County Com'rs., infra. It is further urged that said amendment is invalid for the reason that it was submitted by virtue of sections 1, 2 and 4, art. 2, of said act (Sess. Laws 1910, p. 124), which provides:

"Section 1. If the Legislature should desire to ascertain the sentiment of the people upon any proposed amendment to the Constitution, it may, by concurrent resolution, suggest to the citizens of the state such proposition as an amendment to the Constitution. Such resolution shall set forth the proposed amendment in full and should the citizens of the state proceed to initiate such proposition within one year thereafter, then it shall be the duty of the Secretary of State, when the required petitions have been filed in his office to cause an attached copy thereof to be filed with the chairman of the state election board, together with a certificate of the fact that the proposition was originated by concurrent resolution of the Legislature setting forth such resolution.

"Section 2. All propositions first suggested to the people by the Legislature, as provided by section 1 of this article, shall be printed by such election board, and they shall have the supervision of the printing of the ballots for such proposed amendment, and such proposition shall be printed either on a separate and independent ballot or upon the ballot upon which the names of candidates appear, should such election occur upon the day when candidates are being voted for. Provided, however, that the state election board shall not be empowered to change the form of any ballot as prescribed by the Legislature. Should such title be. printed upon ballots containing the names of candidates, such board shall cause such proposition to appear immediately following the names of such candidates. If separate ballots are used at each election for county candidates, only local propositions can be printed thereon. All statewide or district propositions shall be printed only upon the state ballots. Such election board shall cause the said title of each proposition to be printed, followed by the words 'For the Amendment,' which words shall be in a separate paragraph and at least one-fourth of an inch below such title. Said words shall have no distinguishing marks about them."

"Sec. 4. Electors shall vote upon all propositions submitted under the provisions of this act, and which were first suggested by concurrent resolution of the Legislature, in the following manner: Should the elector desire to vote for the proposed amendment, he shall leave the words 'For the Amendment,' intact without erasing same. But should he desire to vote against such proposition, he shall strike out the words, 'For the Amendment,' with a pencil mark. When such words are so erased after any proposition, the ballot shall be recorded as having been cast against the same, and whenever they are not so erased, such ballot shall be recorded as having been voted for such proposition."

¶3 Section 3 of article 5 of the Constitution provides:

"All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference."

¶4 Section 1, art. 3, p. 270, Sess. Laws, 1909, provides:

"Whenever any measure shall be initiated by the people in the manner provided by law, or whenever the referendum shall be demanded against any measure passed by the Legislature, the Governor shall have the power, in his discretion, to call a special election to vote upon such question."

¶5 Section 1 of article 24 of the Constitution provides:

"Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by two-thirds vote of each House, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately."

¶6 Section 3 of article 24 provides:

"This article shall not impair the right of the people to amend this Constitution by a vote upon an initiative petition therefor."

¶7 This amendment not having been submitted by virtue of section 1, art. 24, supra, the same has no application to this case. Said amendment was submitted on an initiative...