Caruth v. State
| Decision Date | 20 November 1923 |
| Docket Number | 14615. |
| Citation | 223 P. 186,101 Okla. 93,1923 OK 980 |
| Parties | CARUTH, MAYOR OF CITY OF SHAWNEE, v. STATE EX REL. TOBIN ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 19, 1924.
Syllabus by the Court.
Section 3 (a) of article 18 of the Constitution authorizes any city containing a population of more than 2,000 inhabitants to frame a charter for its own government consistent with and subject to the Constitution and laws of this state, and provides that upon its approval by the Governor the charter shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it.
By section 4 (a), art. 18, of the Constitution, the powers of the initiative and referendum are reserved to the people of every municipal corporation within this state, with reference to all legislative authority which it may exercise, and amendments to the charter for its own government in accordance with the provisions of said Constitution.
Chapter 161, Sess. Laws 1919 (section 4504, C. S. 1921) is amendatory of section 536, Rev. Laws 1910, and provides for the amendment, revocation, or repeal of city charters, adopted and approved pursuant to the foregoing constitutional authority, and prescribes the procedure by which such proposed amendment, revocation or repeal may be initiated.
Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as, constitutional and legal, until their unconstitutionality or illegality has been judicially determined.
Chapter 161, Sess. Laws 1919 (section 4504, C. S. 1921), applies only to cities whose charters make no provision for the amendment revocation, or repeal of such charters. Where in a city charter itself the method for its amendment, revocation, or repeal is provided, such method is exclusive.
A city charter, when adopted by the people and approved by the Governor, pursuant to constitutional authority, becomes the organic law of the city, and the provisions thereof supersede all laws of the state in conflict therewith, in so far as such laws relate to purely municipal matters.
Article 17 of the charter of the city of Shawnee, pertaining to the initiative, applies only to such municipal legislation as the council might enact, and does not include within its scope the submission of the question of whether or not such charter should be repealed.
Where neither the Constitution nor the charter of a city provides for the revocation or repeal of such charter and the adoption of the laws of the state pertaining to municipal corporations, as the governing laws of the city, and such provision is made by act of the Legislature, the repeal of such charter and the adoption of the laws of the state as the organic law of the city may be effected in the manner provided by statute.
Two or more congruous propositions may be united as one in an initiative petition, and in a submission thereof to an electorate so as to have an expression of the voters determine whether such composite proposition, with each of its elemental propositions, shall be adopted.
Proceedings under the initiative and referendum provisions of the Constitution and statute should be construed liberally in favor of the petitioners.
Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
Mandamus by the State, on the relation of Thomas P. Tobin, John Kerker, and J. A. Farriss, against George B. Caruth, as Mayor of the City of Shawnee. From an order issuing a peremptory writ, the respondent appeals. Affirmed.
Wyatt & Waldrep, Goode & Dierker, and Arrington & Evans, all of Shawnee, for plaintiff in error.
F. H Reily, A. M. Baldwin, A. J. Carlton, and I. C. Saunders, all of Shawnee, for defendants in error.
This is an appeal from the action of the trial court in issuing a peremptory writ of mandamus, directing the plaintiff in error, respondent below, to issue his proclamation as mayor of the city of Shawnee, calling a special election in said city for the purpose of submitting to the qualified electors thereof the question of whether or not the charter of said city, and all amendments thereto, should be repealed and the form of city government provided for by the laws of the state of Oklahoma adopted, and, in case said question carried, then to issue a subsequent proclamation calling a primary election to be held in said city for the purpose of nominating candidates for the various offices, and thereafter to issue his proclamation calling a general election for the purpose of electing officers of said city.
It appears that on the 20th day of June, 1923, the defendants in error, relators below, filed with the respondent a certain petition purporting to be signed by more than 25 per centum of the qualified electors of said city, petitioning said respondent to submit to the qualified electors of said city for their approval or rejection, at an election to be called by him, the question of whether or not the charter of said city and all amendments thereto should be repealed and the laws of the state of Oklahoma for cities of the first class having a population of less than 20,000 be adopted for the government of the city, and calling a primary and general election for the nomination and election of the city officers provided for by said laws.
On receipt of this petition, and on said 20th day of June, 1923 the respondent delivered the same to the city clerk of the city, with directions to proceed forthwith to examine said petition, and the names appearing thereon, and to make a finding as to whether or not said petition was sufficient in form and substance, and to report the number of legal voters of said city found to have signed said petition; that said city clerk made such examination and investigation and thereafter, on the 28th day of June, 1923, made his finding and report in which he found and certified that said petition contained approximately 1,700 names, but that only 336 thereof were the names of duly qualified electors, and that said petition was wholly insufficient to demand the calling of an election; that the total number of votes cast at the last preceding general municipal election held in said city was 2,547, and that said petition did not contain 25 per centum of the votes at the last general municipal election.
This action was filed on June 27, 1923, the day before the city clerk made and filed his findings and report on said petition, and an alternative writ of mandamus issued thereon. In his return to said writ, the respondent, among other things, pleaded the insufficiency of said petition so filed. Upon a trial, the court granted a peremptory writ of mandamus directing the respondent to call an election as demanded by said petition, and it is this action of the court of which the respondent complains.
The chief contention of respondent is that the proper procedure was not followed by the relators, in that they failed to observe the provisions of the city charter relating to elections on initiative petitions. In support of this contention, it is argued that the provisions of the city charter relating to elections on initiative petitions are supreme as to all municipal matters, except in those respects wherein the same are in conflict with the Constitution; that as to elections called on initiative petitions, the statute of the state, the charter of the city, and the Constitution are to be construed together and all given effect, except that in case of a conflict the provisions of the statute must give way to the charter and Constitution, and that by construing these provisions together the proper procedure is pointed out.
Let us look to the Constitution, statute, and charter provisions to determine whether this contention of respondent is correct, and whether these provisions construed together point out the procedure for the repeal of the charter.
Section 3 (a), art. 18, of the Constitution, authorizes any city containing a population of more than 2,000 inhabitants to frame a charter for its own government consistent with and subject to the Constitution and laws of this state, and provides that upon approval of such charter by the Governor it shall become the organic law of the city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it; and by the provisions of section 4 (a) of article 18 of the Constitution the powers of the initiative and referendum are reserved to the people of every municipal corporation within the 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 the Constitution.
On May 22, 1908 (Laws 1907-08, c. 12) the act of the Legislature entitled "An act to enable all cities containing a population of more than two thousand inhabitants to frame and adopt charters for their own government, and to extend and define their powers," became effective. Sections 533-540 Rev. Laws 1910. The provisions of this act are in many respects practically identical with the aforesaid constitutional provisions, both of which provide for the amendment of city charters, but neither of which provide for the repeal of such charters.
Under the aforesaid constitutional provision, the city of Shawnee adopted a charter for its own government, but no provision was made therein for its repeal. Thus, it will be seen that neither the Constitution of the state, the charter of the city, nor the act of the Legislature of May 22, 1908, supra provided the procedure for the repeal of a city charter, or in terms authorized such repeal. This situation existed until 1919, when the Legislature by chapter 161, Sess. Laws 1919 (section...
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