Dagwell v. Thornton

• Decision Date: 08 July 1953
• Citation: 259 P.2d 125,199 Or. 8
• Parties: DAGWELL et al. v. THORNTON, Atty. Gen. et al.
• Court: Oregon Supreme Court

Page 125

259 P.2d 125

199 Or. 8

DAGWELL et al. v. THORNTON, Atty. Gen. et al.

Supreme Court of Oregon.

Argued and Submitted July 7, 1953.

Decided July 8, 1953.

Don S. Willner, of Portland, David Robinson and Sidney I. Lezak, of Portland, on the brief, for appellants.

Lloyd G. Hammel, Asst. Atty. Gen., Robert Y. Thornton, Atty. Gen., on the brief, for respondents.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, BRAND and PERRY, JJ.

LATOURETTE, Chief Justice.

This is an appeal by Benjamin D. Dagwell, Philip S. Hitchcock, E. J. Ireland, Julius J. Nodel and Thomas J. Tobin, from the action of the Attorney General in fixing a ballot title of a proposed referendum which attacks chapter 495, Oregon Laws 1953, the same being as follows:

'An Act

'Relating to discrimination by places of public accommodation, resort or amusement because of race, religion, color or national origin; and providing remedies and penalties therefor.

'Be It Enacted by the People of the State of Oregon:

'Section 1. All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement, without any distinction, discrimination or restriction on account of race, religion, color or national origin.

'Section 2. A place of public accommodation, resort or amusement shall mean any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement; provided that nothing contained in this Act shall be construed to include or apply to any institution, bona fide club or place of accommodation, resort or amusement, which is in its nature distinctly private.

'Section 3. All persons against whom any distinction, discrimination or restriction on account of race, religion, color or national origin has been made by any place of public accommodation, resort or amusement as defined herein shall have a cause of action to recover damages in the sum of not to exceed $500 from the operator, manager or employe of such place, and in any such action the operator, manager or employe shall be jointly and severally liable.'

The ballot title prepared by the Attorney General is as follows:

'Purpose: Declaring all persons are entitled to equal facilities and privileges in any place of public accommodation, resort or amusement without discrimination because of race, religion, color, or national origin. Gives to persons discriminated against a legal right to sue to recover damages up to $500 from person that discriminates.'

Appellants assert that the said ballot title

'* * * does not accurately state the purpose of this measure. * * *

'Specifically, appellants object to that portion of the ballot title which declares that the bill applies to 'any place of public accommodation, resort, or amusement.' The definition of public accommodation contained in the Act limits the use of that term to certain specifically enumerated places of public accommodation.'

The 1953 legislature amended § 81-2106, O.C.L.A., relating to ballot titles where the initiative or referendum is invoked. By such amendment the short ballot title is reduced from ten to six words and is designated a 'caption', and the general ballot title is reduced from 100 to 50 words, and it is incumbent upon the Attorney General, in providing the general ballot title, to set forth in abbreviated form the chief purpose of the measure. In addition to this the Attorney General is directed to include a descriptive summary of the measure distinct from the ballot title, expressing, in not more than 150 words, the purpose of the measure. It is further provided:

'* * * In making such ballot title and summary the Attorney General shall to the best of his ability give a true and impartial statement of the purpose of the measure and in such language that the same shall not be intentionally an argument or likely to create prejudice either for or against the measure. Any person who is dissatisfied with the ballot title or summary provided by the Attorney General for any measure, may appeal from his decision to the Supreme Court by petition, praying for a different title or summary and setting forth the reason why the title or summary prepared by the Attorney General is insufficient or unfair. * * *.'

The question before us is whether or not the ballot title, as prepared by the Attorney General, is insufficient, unfair, misleading or confusing. See Allen v. Van Winkle, Attorney General, 136 Or. 173, 298 P. 241; Wieder v. Hoss, 143 Or. 122, 21 P.2d 780; Richardson v. Neuner, 183 Or. 558, 194 P.2d 989; Blitz v. Neuner, 194 Or. 1, 240 P.2d 1193.

In preparing the general ballot title the Attorney General embraced the language used in § 1 of the act, i. e., 'any place of public accommodation,' etc. Section 1 of the act was limited by § 2 in that a place of public accommodation, etc., was specifically defined.

To determine the chief purpose of the measure under consideration the act must be construed in its entirety rather than by piecemeal, and, from such construction, it is clear to us that the ballot title prepared by the Attorney General is too broad and comprehensive and therefore insufficient, unfair and misleading.

It is understandable that the Attorney General would cleave as closely as possible to the language of the statute; however, as hereinbefore pointed out, an isolated section of the statute may not be employed to determine the main purpose of the act.

For the above reasons the following ballot title, which is in the language of the title of the act itself, is certified by us to the Secretary of State:

'Purpose: Declaring all persons are entitled to equal facilities and privileges in places of public accommodation, resort or amusement without discrimination because of race, religion, color or national origin. Gives to persons discriminated against a legal right to sue to recover damages up to $500 from person that discriminates.'

WARNER, Justice (dissenting).

Addressing myself to the matter before us as an abstract proposition, I find myself in complete accord with the holding of the majority that the ballot title prepared by the attorney general is misleading. I also agree that the one designed by the court makes for a sufficient and fair statement of the purpose of the act to which it refers.

As a legal matter, however, and the occasion for this dissent, it is my position that it is our duty to refuse to take jurisdiction in this proceeding.

The reason for this conclusion is simple and direct. Section 81-2106, O.C.L.A., as amended, mandates this court to rewrite a contested ballot title in the event it determines that the one devised by the attorney general is insufficient or unfair. In so doing, the legislature has attempted to impose upon this court duties of a nonjudicial character and obligations having a political import.

The state constitution gives positive recognition to the concept of three separate branches of government and lays upon us the heavy and clear duty to void the encroachments of one department upon the domain and traditional independence of the others. Art. III, § 1, provides:

'The powers...