Ex parte Haley

• Decision Date: 11 October 1949
• Docket Number: 33297.
• Parties: Ex parte HALEY.
• Court: Oklahoma Supreme Court

210 P.2d 653

202 Okla. 101, 1949 OK 218

Ex parte HALEY.

No. 33297.

Supreme Court of Oklahoma

Oct. 11, 1949

E. J Haley applied for a writ of habeas corpus.

The Supreme Court, Luttrell, J., discharged the writ, and held that a prior statute condemning bookmaking establishments for receiving bets on horse racing which may have been invalid was legally re-enacted when the 1941 statutes were adopted by the Legislature, and hence the conviction of petitioner thereunder was valid. It further held that the Court of Common Pleas in which petitioner was convicted did not automatically cease to exist after the City of Tulsa acquired a population in excess of that permitted in statute for establishment of such courts.

Syllabus by the Court.

1. Section 991, 21 O.S.1941, was legally re-enacted when the Legislature by special act, 75 S.L.1943, Ch. 4, section 1, 75 O.S.Supp. § 114, adopted the 1941 Statutes as the law of the State, and such section then became law, although it was not in force and effect prior thereto.

2. When a measure enacted by the Legislature has been submitted to a vote of the people under the referendum provisions of the State Constitution, and such measure is adopted at the election, but such measure nevertheless fails of adoption because of invalidity of the election, a subsequent legislature may then re-enact the measure, and in so doing does not violate that part of section 3, of Art. 5, of the State Constitution, which provides, 'any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise.'

3. Under the facts and circumstances stated in the opinion the court of common pleas of Tulsa County did not automatically cease to exist upon the City of Tulsa having acquired a population in excess of 90,000 people.

Frank Hickman, Tulsa, for petitioner.

Mac Q Williamson, Attorney General, Sam H. Lattimore, Assistant Attorney General, for respondent.

LUTTRELL Justice.

This is an original petition filed in this court by E. J. Haley for writ of habeas corpus. We assumed jurisdiction for the reason that the present existence of the court of common pleas of Tulsa County, a court of civil as well as criminal jurisdiction, was involved.

Petitioner alleges that he is illegally restrained of his liberty by the sheriff of Tulsa County, Oklahoma, and confined in the county jail under commitment issued out of the court of common pleas of said county under arraignment on an information charging him with the operation of a bookmaking establishment for the purpose of receiving and reporting bets on horse racing contrary to the provisions of 21 O.S.1941 § 991. It is alleged that his arrest on such charge and commitment thereunder is illegal for the reason that section 991, supra was not then in force as the law of the state.

The above section was first enacted by the Legislature in 1913. At the same session the Legislature enacted another and independent act relating to gambling.

Pursuant to petitions calling for a referendum on both these acts such acts were submitted to the people on an election held on August 4, 1914, for adoption or rejection, at which election both acts were adopted.

This court in the case of Ex parte Smith, 49 Okl. 716, 154 P. 521, held the election invalid so far as it related to the general gambling act because of failure to print and circulate a sufficient number of pamphlets containing the act and arguments relating thereto. The general gambling statute was re-enacted by the Legislature in 1916, 21 O.S.1941, § 941 et seq.

It is further asserted and alleged by petitioner that the facts concerning the election and upon which this court based its decision in the case of Ex parte Smith, supra, were the same with reference to the act here involved, being section 991, supra. Petitioner in support of such allegation in his brief tenders in evidence the records and files in that case and also asserts that this court will take judicial knowledge of such fact. Since the respondent makes no serious denial of such allegation, we shall for the purpose of this case accept such allegation as having been established and hold that the referendum election on the act here involved was invalid, and that section 991, supra, was not in force at the time the petitioner was arrested and the commitment issued, unless such section has been re-enacted by the act of the Legislature adopting the 1941 Code as the law of the state.

The respondent contends that regardless of the invalidity of the referendum election, section 991 was re-enacted upon the adoption of the 1941 Code, and is now in force and effect as the law of the state and was so in force at the time petitioner was committed. In support of such contention he cites the case of Atlas Life Insurance Co. v. Rose, 196 Okl. 592, 166 P.2d 1011, 1014. Gilmer v. Hunt,

167 Okl. 175, 29 P.2d 59. The provision however was re-enacted by the Legislature in 1943 when it adopted the Statutes of Oklahoma 1941 as the law of the state and such provision is now in full force and effect.'

Petitioner contends that the conclusion reached in that case is erroneous, and in effect urges that the case to this extent should be overruled. This challenge impels us to reexamine the rule there announced.

The Legislature in 1941 passed a law authorizing compilation of the statutes of the state, Title 75, Ch. 4, S.L.1941. Section 1 of that Act, 75 O.S.1941, section 101, authorized and directed West Publishing Company to compile, codify and annotate the Oklahoma Statutes, 1941.

Section 2, 75 O.S.1941 § 102, provides that, among other things, said statutes shall contain: '* * * all laws of the State of Oklahoma of a general and permament nature now in force, including all laws and amendments of a general and permanent nature passed by the Regular Session of the Eighteenth Legislature, 1941, with all repealed laws and those held unconstitutional by the highest courts eliminated.'

Section 8, 75 O.S.1941 § 108 provides: 'The Oklahoma Statutes, 1941, prepared by West Publishing Company, and in one (1) volume as above provided for, after the same shall have been approved by the Justices of the Supreme Court of the State of Oklahoma as hereinabove provided, shall, as provided in Section 9, be, and are hereby, adopted as the general and public laws of the State of Oklahoma and the official Statutes of the State of Oklahoma, as to all laws therein contained. * * *'

Under authority of the above sections the statutes were compiled by West Publishing Company. Upon the completion of such compilation the Code as so compiled was approved by the Justices of the Supreme Court in December, 1941.

On the 12th day of April, 1943, the Legislature adopted the Code as compiled and approved by the Justices of the Supreme Court as the law of the State by the following adopting act which in so far as here material provides, Title 75, Ch. 4, S.L.1943, section 1, 75 O.S.Supp. § 114: 'That the Oklahoma Statutes, 1941, compiled, codified and annotated and indexed under and by the provisions of House Bill No. 519 of the Eighteenth Legislature of the State of Oklahoma, approved May 9, 1941, Session Laws of 1941, pages 457 to 460, inclusive, and compiled, codified and annotated under and by the supervision of the Justices of the Supreme Court of the State of Oklahoma and approved by them on December 31, 1941, and promulgated and published by C. C. Childers, Secretary of State, under proclamation dated the 27th day of January, 1942; said Oklahoma Statutes, 1941, being further identified as one volume, containing pages 1 to 3589, inclusive, be and the same is hereby adopted and made of force as the Code and Revised Statutes of the State of Oklahoma to be known as 'Oklahoma Statutes 1941,' and that all general laws of the State of Oklahoma not therein contained be and the same are hereby repealed.'

We think it quite clear that upon the passage of the above act adopting the 1941 Code, and making the same of force as the Code and Revised Statutes of the State, such Code and all the laws therein contained thereafter became the law of the state, including section 991, supra, although such section may not have been in force and effect prior thereto. We, in effect, so held in the Atlas case, supra, and we see no reason for departing from the rule there announced. Courts from other states under a substantially similar state of facts have arrived at the same conclusion.

In the case of Berg v. Berg, 139 Neb. 99, 296 N.W. 460 463, it appears that the Nebraska Legislature in the year 1911 passed an act creating a Code Commission and authorized such Commission to assemble and codify the Statutes of the State with specific directions to eliminate all statutes theretofore repealed. A section of the statute which had previously been repealed was inserted in the Code by the Code Commission. The Code as prepared and compiled was thereafter adopted by the Legislature as the law of the State. The court held that notwithstanding such repealed section was inserted in the Code contrary to the provisions of the act creating the Commission and authorizing the compilation, upon the adoption of the Code as the law of the state, such repealed section was thereby re-enacted and thereafter in force as a law of the state. The court there said: 'Though the report included matter the commissioners were not specifically authorized to include, the formal adoption and approval of the report of the commissioners, embodying section 8177, by the legislative enactment of chapter 3, Laws 1913, was as much an expression of legislative will, as to what it should contain, as was the expression in the Act of 1911, and a later expression...