City of Ardmore v. State
Decision Date | 02 November 1909 |
Citation | 104 P. 913,24 Okla. 862,1909 OK 257 |
Parties | CITY OF ARDMORE et al. v. STATE ex rel. BEST. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Whether section 18 of the act of the Legislature entitled "An act providing for carrying into effect the initiative and referendum powers reserved by the people in articles 5 and 18 of the Constitution of the state of Oklahoma, regulating elections thereunder, and to punish violations of this act" (Sess. Laws, 1907-1908, p. 440, c. 44), fixing the time resolutions and ordinances of a municipal Legislature shall become effective, applies to an ordinance providing for an election to determine whether certain public utility bonds shall be issued is not determined, and is specifically reserved for the future consideration of the court.
In ordering an election in a city of the first class, on a question of whether certain public utility bonds shall be issued, 10 days' notice of such election, by publication of the mayor's proclamation calling the election in a newspaper of general circulation in such city at least 10 days prior to the date of the election, is required (section 1, art. 4, of an act entitled "An act regulating elections in cities and towns ***" [Sess. Laws 1909, p 268, c. 16]); but, if the notice be published for a less time than 10 days prior to the election, a court of equity will not, for this reason alone, declare the election void, where it is not shown or alleged that any one failed to vote because of the failure to publish the proclamation for the full statutory period, and where it is conceded that the general voting public had notice of the election and participated therein.
Under section 1, art. 4, of the act entitled "An act regulating elections in cities and towns ***" (Sess Laws 1909, p. 268, c. 16), the time of opening the polls at elections in cities of the first class, for the determination of whether certain public utility bonds shall be issued shall be set forth in the mayor's proclamation calling and giving notice of the election, and the statute fixing the times of opening and closing the polls at general elections does not apply.
Section 27, art. 10, of the Constitution authorizes any city or town by a majority vote of the qualified property taxpaying voters of such city or town, voting at an election held for that purpose, to become indebted in a larger amount than that specified in section 26, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by the city.
A public park is a "public utility" within the meaning of that term as used in section 27, art. 10, of the Constitution, and bonds for the improvement of such parks are by said section authorized to be issued by incorporated cities and towns in the manner therein provided for.
Error from District Court, Carter County; Stilwell H. Russell Judge.
Mandamus by the State, on relation of I. R. Best, against the City of Ardmore and others. Judgment for relator, and respondents bring error. Affirmed.
J. B. Moore, for plaintiffs in error.
W. A. Ledbetter and J. B. Perkins, for defendant in error.
HAYES, J. (after stating the facts as above).
By section 1, art. 5, of the Constitution the power is reserved to the people of the state to propose laws and to enact or reject the same at the polls independent of the Legislature, and also to approve or reject at the polls any act of the Legislature. These powers, designated as the initiative and referendum, are, by section 5 of the same article, reserved to the legal voters of every county and district of the state as to all local legislation or action in the administration of county or district government. Section 4(a), art. 18, reserves these same powers to the people of every municipal corporation. This latter section was held, in Ex parte Wagner, 21 Okl. 33, 95 P. 435, not to be self-executing. 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 the state of Oklahoma, to regulate elections thereunder, and to punish violations of this act." Sess. Laws, 1907-1908, p. 440. c. 44. This act undertakes to provide a procedure by which the people of the state and of municipal corporations may avail themselves of the right to exercise the powers of the initiative and referendum. Section 18 of this act, after providing the manner of verifying referendum petitions against any orders or resolutions of any municipal legislative body, and providing the time in which the same shall be filed, contains the following provision: "No ordinance or resolution of a municipal Legislature shall become operative until thirty days after its passage and approval by the executive officer, unless the same shall be passed over his veto and in that case it shall not take effect and become operative until thirty days after such final passage except such measures necessary for the immediate preservation of peace, health, or safety; and no such emergency measure shall become immediately operative, unless it shall state, in a separate section, the reasons why it is necessary that it shall become immediately operative, and the question of emergency shall be ruled upon separately and be approved by the affirmative vote of three-fourths of all the members elected to the city council taken by ayes and noes, and the whole measure be approved by the executive officer."
The ordinance involved in this case does not contain the emergency clause, and plaintiff in error insists that it did not, under the provisions of said section 18 quoted above, become effective until 30 days after its passage. Defendants in error, on the other hand, contend that the referendum cannot be invoked against ordinances of the character of this ordinance, and that this ordinance for that reason was unaffected by said section, and became effective immediately upon its passage and approval. Under the view we take of the law applicable to the facts as they exist in this case it is unnecessary for us to decide whether the language of said section 18 quoted above applies to ordinances of the character involved in this case; for, if we assume, without deciding, that it does apply to this ordinance, still we think that the election in this case was a valid election. Because of the importance of a correct decision of this question to the different municipalities of the state, and to those who have already purchased their securities, we reserve a final determination of this question until a decision of the same is necessary to a determination of the case presented.
The proclamation of the mayor of Ardmore calling the election to vote upon the issuance of bonds was first published on February 21, 1909. Assuming, without deciding, that this first publication was premature and unauthorized because the ordinance in question had not then become effective, still we think that sufficient publication was made after the expiration of 30 days after the passage of the ordinance as to render the election valid. The statute in force at the time of the adoption of the ordinance (section 354 Wilson's Rev. & Ann. St. 1903), as well as the statute in force at the expiration of 30 days after the passage of the ordinance (section 1, art. 4, c. 16, p. 268, Sess. Laws, 1909), required the mayor of any city of the first class to give notice of such election, for the purpose of...
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