Coyle v. Smith

• Citation: 113 P. 944,28 Okla. 121,1911 OK 64
• Decision Date: 09 February 1911
• Docket Number: Case Number: 2225
• Parties: COYLE v. SMITH et al. *
• Court: Supreme Court of Oklahoma

1911 OK 64

113 P. 944

28 Okla. 121

COYLE v. SMITH et al. *

Case Number: 2225

Supreme Court of Oklahoma

Decided: February 9, 1911

Syllabus

¶0 1. CONSTITUTIONAL LAW--Encroachment on Executive--Discretion of Governor. The action of the Governor in convoking the Legislature at, or adjourning it to, another place than the seat of government "when in his opinion the public safety or welfare, or the safety or health of the members, require it," such convoking or adjournment having been separately concurred in by a two-thirds vote of all the members elected to each branch of the Legislature, is conclusive upon, and not subject to be reviewed by, this court.

2. STATES--Legislature--Membership. The legislative body, as convoked and constituted at an extraordinary session, assembling more than 15 days after the date of the regular state election held throughout the state in November, 1910, the House of Representatives being composed of the members elected at said election, and the Senate in part by the members elected at said election: Held, that said body was legally constituted.

3. STATUTES--"Special Law"--"Local Law"--Locating State Capital. An act entitled "An act providing for the permanent location of the seat of government and capital of the state of Oklahoma, creating a board of capital commissioners and defining its powers and duties, authorizing the Governor to accept for capital purposes the proceeds of the sale of land, or donations from other sources, and declaring an emergency," is neither a special nor a local law.

4. SAME--Subjects and Titles. The title of said act is not repugnant to section 57 of article 5 of the Constitution.

5. STATUTES--Enactment--Passage--Reading of Bill. When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated. approved, and deposited was not read on three different days in each House.

6. STATES--Admission--Effect of Enabling Act. Said act is not invalid on account of the provision of the Enabling Act requiring by irrevocable ordinance that the capital of the state shall temporarily be at the city of Guthrie, and not be changed therefrom previous to A. D. 1913, after which time it shall be located by the electors of said state at an election to be provided for by the Legislature.

7. STATES--Seat of Government--Power of Legislature to Locate. It is within the power of the Legislature to locate the capital of this state.

* Appealed to the Supreme Court of the United States.

Action by W. H. Coyle against Thomas P. Smith and others for an injunction. Petition dismissed.

Dunn and Kane, JJ.. dissenting.

John H. Burford, C. G. Hornor, Frank Dale, A. G. C. Bierer, Frank B. Burford, and Ben F. Hegler, for plaintiff.

C. B. Stuart, B. F. Burwell, and W. A. Ledbetter, for defendants.

WILLIAMS, J.

¶1 The following questions are essential for determination:

(1) Was the action of the Governor in convoking the Legislature at Oklahoma City valid?

(2) Was said legislative body as convoked at said extraordinary session legally constituted?

(3) Is a certain act passed at said session, entitled "An act providing for the permanent location of the seat of government and capital of the state of Oklahoma, creating a board of capital commissioners and defining its powers and duties, authorizing the Governor to accept for capital purposes the proceeds of the sale of land or donations from other sources, and declaring an emergency," a special or local law?,

(4) Is the title of said act repugnant to section 57 of article 5 of the Constitution?

(5) Is said act void for the reason that it was not read on three different days in each House?

(6) Is said act violative of the provisions of the Enabling Act requiring that the capital of the state "shall temporarily be at the city of Guthrie and not be changed therefrom previous to A. D. 1913, after which time it shall be located by the electors of said state at an election to be provided for by the Legislature," with the limitation that the Legislature, except as shall be necessary for the convenient transaction of the public business of said state at said capital, shall not appropriate any public moneys of the state for the erection of buildings for capital purposes during such period?

(7) Can the Legislature locate the capital of the state?

¶2 1. Section 14 of article 6 of the Constitution of this state provides that the Governor "may convoke the Legislature at, or adjourn it to, another place, when, in his opinion, the public safety or welfare, or the safety or health of the members require it; provided, however, that such change or adjournment shall be concurred in by a two-thirds vote of all the members elected to each branch of the Legislature." The obvious meaning of this provision is that when the Governor convokes the Legislature in session at any place other than the capital, after assembling, each House must separately concur in such convocation by a two-thirds vote of all the members elected to the respective bodies. It is admitted that by a two-thirds vote of all the members elected to each branch of the Legislature such call was separately concurred in, after the Legislature assembled in Oklahoma City. If it was necessary for the Legislature to first meet at Guthrie, the seat of government, and, having concurred in such call, to adjourn to the place at which it was originally convoked, said provision of section 14, supra, must be construed to mean that the Governor may convoke the Legislature at another place other than the capital, when, in his opinion, the public safety or welfare, or the safety or health of the members may require it, provided, however, that such change shall be concurred in by a two-thirds vote of all the members elected to each branch of the Legislature, at a meeting held at the capital before assembling at the place to which it was convoked. Such seems not to be the reasonable construction. It was evidently contemplated by the framers of the Constitution that before the Governor would convoke the Legislature at a place other than the seat of government, an emergency would exist involving the public safety or welfare, or the safety or health of the members requiring such temporary change in the place of assembling, and if such exigency required them to assemble at another place, it would not be reasonable to suppose it was intended, or be reasonably practicable for, the Legislature to first assemble at the seat of government and concur in such call of the Governor, before they could legally assemble at the place to which they were convoked. Such emergency as was contemplated would, in most instances, render that impossible; for instance, in time of war, insurrection, epidemics, or pestilence, etc.

¶3 The reasonable construction is that after they were convoked at such other place, when they assembled, unless two-thirds of all the members elected to each branch of the Legislature separately concurred in such call then such call would be a nullity. It appearing that such call was so concurred in after assembling at the place to which they were convoked, the action of the Governor and the Legislature in the premises is conclusive upon, and not subject to be reviewed by, this court. Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559; State ex rel. v. Brown, Judge, 24 Okla. 433, 103 P. 762; Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537; In re Special Session, 9 Colo. 642, 21 P. 477; People v. Hatch, 33 Ill. 9; Farrelly v. Cole, 60 Kan. 356, 56 P. 492, 44 L. R. A. 464; Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L. R. A. 258, 94 Am. St. Rep. 357; People v. Rice, 65 Hun 236, 20 N.Y.S. 293; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634; Vanderheyden v. Young, 11 Johns. (N.Y.) 150; In re Legislature Adjournment, 18 R.I. 824, 27 A. 324, 22 L. R. A. 716; State v. Fair, 35 Wash. 127, 76 P. 731, 102 Am. St. Rep. 897.

¶4 2. Section 9, art. 5, of the Constitution of this state, provides:

"The Senate, except as hereinafter provided, shall consist of not more than forty-four members, whose terms of office shall be four years: Provided, that one senator elected at the first election from each even numbered district shall hold office until the fifteenth day succeeding the regular state election in nineteen hundred and eight, and one elected from each odd-numbered district at said first election, shall hold office until the fifteenth day succeeding the day of the regular state election in nineteen hundred and ten: And provided further, that in districts electing two senators the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term."

¶5 And section 10 of article 5 of the Constitution provides:

"The House of Representatives, unless otherwise provided by law, shall consist of not more than one hundred and nine members who shall hold office for two years. Provided, that the representatives elected at the first election shall hold office until the fifteenth day succeeding the day of the regular state election in nineteen hundred and eight: And provided, that the day on which state elections shall be held shall be fixed by the Legislature.

"(a) The first Legislature shall meet at the seat of government upon proclamation of the Governor on the day named in said proclamation, which shall not be more than thirty days nor less than fifteen days after the admission of the state into the Union. * * *"

¶6 Section 40 of the Schedule of the Constitution is as follows:

"The terms of all officers of the state government elected at the time of the adoption of this Constitution shall begin upon the admission of

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