Ex parte Wagner
| Decision Date | 27 April 1908 |
| Citation | 95 P. 435,21 Okla. 33,1 Okla.Crim. 148,1908 OK 7 |
| Parties | Ex parte WAGNER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The initiative and referendum provisions in the Constitution (article 5, §§ 1, 2, 3, 4, 5, and article 18, §§ 4, 5) are not in conflict with the Constitution of the United States (section 4, art. 4), guaranteeing to every state a republican form of government.
Said provisions as contained therein are not self-executing, but are made effective by an act of the Legislature approved April 16, 1908.
Until said provisions were made effective by legislation, a petition for a referendum filed with the chief executive officer of a municipality of the first class was of no effect.
An ordinance having been passed and published, and thereafter a petition for referendum filed with the mayor of Kingfisher and afterwards said relator being convicted in said municipal court for an alleged violation after the filing of said petition, he is not entitled to be discharged from said conviction.
Application of C. L. Wagner for a writ of habeas corpus. Writ denied.
On December 5, 1907, the mayor and council of the city of Kingfisher, Okl., passed an ordinance, No. 118, entitled "An ordinance providing for a levy and collection of a license tax on certain trades, occupations, callings businesses and avocations, and regulating the same and providing penalties for violations thereof." The ordinance provided for the punishment of persons engaged in business without having paid a license tax as prescribed by said ordinance. On December 12, 1907, the ordinance was published in the official organ of said city. On December 18 1907, a petition signed by 25 per cent. of the qualified voters of said city, demanding a referendum vote on said ordinance, and requesting that same be held in abeyance until such election was held at which said ordinance could be voted upon and approved or rejected by the electors of said city was filed with the mayor thereof. On December 20, 1907, relator, C. L. Wagner, was tried and found guilty of violating said ordinance, and adjudged to pay a fine and costs of the action. The relator refused to pay the fine, and for that reason was committed to the city jail by the respondent, George H. Brown, the marshal of said city, under a commitment issued by the police court on the judgment rendered against said relator. The relator alleges in his petition that ever since that date he has been restrained of his liberty under said commitment. Thereafter, on the 2d day of January, 1908, application was made to this court for a writ of habeas corpus for the purpose of determining whether or not he was lawfully restrained of his liberty, and the same was issued on said date, made returnable on the 11th day of January, 1908. The ordinance was in due form, and there is no allegation against its invalidity, but the contention is that by virtue of said petition filed for a referendum vote that the same was held in abeyance until the next city election. George H. Brown, marshal of said city, as respondent, made his return to said writ, showing that he held the relator under a commitment issued by the police court of said city on a judgment of conviction for the violation of said ordinance. The facts as heretofore set out were admitted on a hearing of this cause.
C. G. Horner and P. S. Nagle, for relator.
John T. Bradley, Jr., for respondent.
The question raised in this case is whether or not a petition demanding a referendum vote upon an ordinance duly passed by a city of the first class after the same had taken effect and was in force, such demand having been presented to and filed with the chief executive officer of such city after such ordinance had been published, suspends the force and effect of said ordinance until the next municipal election. Of course, the question necessarily arises as to whether or not the different sections in the Constitution providing for the initiative and referendum are valid, and were in force and effect or self-executing on the 18th day of December, A. D. 1907, the date on which the petition demanding a referendum on said ordinance was filed with the mayor of the city of Kingfisher. The initiative and referendum provisions, relating, not only to the affairs of the state, but also to counties and cities, are taken substantially from the Constitution of Oregon. The Supreme Court of that state, in the case of Kadderley v. Portland, 44 Or. 119, 74 P. 720, 75 P. 222, has held that the same are not in conflict with section 4, art. 4, Const. U.S., guaranteeing to every state a republican form of government.
The next question is: Were said provisions self-executing on the 18th day of December, A. D. 1907? The Supreme Court of Oregon, in the case of Stevens v. Benson (Or.) 91 P 577, held that the initiative and referendum provisions as contained in the Oregon Constitution were self-executing. The only difference between the provisions in that Constitution and those of this state is that in the former it is provided that, in submitting such petitions to the people, the Secretary of State and all other officers shall be guided by the general laws and the act submitting the initiative and referendum amendment to the people for adoption or rejection until legislation shall be especially provided therefor-clearly indicating that it was the intention in adopting the Oregon amendment that the same should then and there become self-executing. This clause does not appear in the Oklahoma Constitution. Substantially such provision was contained therein prior to the time that the constitutional convention reassembled after the proposed Constitution had been provided to be submitted to the people for adoption or rejection. When the convention reconvened, in order to obviate any possible objection that might be made by the President of the United States to the same, wherein it was required by section 4, art. 4, Const. U.S., and the terms of the enabling act (Act June 16. 1906, c. 3335, 34 Stat. 267) to be republican in form, and not in conflict with the provisions of said act, that part was eliminated, leaving it to the Legislature to carry same into effect. There was undoubted wisdom and precaution in that act. If the enemies of the principle of the initiative and referendum in popular government had been able to convince the department of justice of the federal government that such provisions of the initiative, and referendum, when adopted by a state, rendered such state government unrepublican in form, still it remained that until the Legislature acted that the principle was not self-executing in the Oklahoma...
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Fent v. Henry
...in itself, or does it contemplate subsequent legislation to carry it into effect? 11 Am.Jur. pg. 690, sec. 73; Ex parte Wagner, 21 Okla. 33, 1 Okla.Crim. 148, 95 P. 435 (1908). At the time the measure was adopted in 1967, six congressional districts existed. The measure did not, by its expr......