Herbring v. Brown

• Decision Date: 29 April 1919
• Citation: 92 Or. 176,180 P. 328
• Parties: HERBRING v. BROWN, ATTY. GEN.
• Court: Oregon Supreme Court

180 P. 328

92 Or. 176

HERBRING v. BROWN, ATTY. GEN.

Supreme Court of Oregon

April 29, 1919

In Banc.

Original proceeding in mandamus by Karl Herbring against George M Brown, Attorney General. Demurrer sustained, and writ dismissed.

Theodore A. Bell, of San Francisco, Cal., and Dan J Malarkey, E. B. Seabrook, and Malarkey, Seabrook & Dibble, all of Portland, for petitioner.

George M. Brown, Atty. Gen., in pro. per.

Elisha A. Baker, of Portland, for Anti-Saloon League of Oregon, and Wayne B. Wheeler, of Washington, D. C., for Anti-Saloon League of America, amicus curiæ.

McBRIDE C.J.

This is a proceeding in mandamus arising from the following facts During the Thirtieth Legislative Assembly of the state of Oregon, which adjourned on February 27, 1919, there was enacted House Joint Resolution No. 1, which is a ratification of a proposed amendment of the Constitution of the United States, popularly known as the "National Prohibition Amendment."

On March 18, 1919, petitioner filed with the Secretary of State of Oregon a proposed form of petition demanding a referendum of said resolution, which petition is in form and substance as required by law.

On March 19, 1919, the Secretary of State sent to the Attorney General two copies of said petition and requested him to provide a ballot title therefor.

On March 25, 1919, after considering the matter in the meantime, the Attorney General refused to provide a ballot title on the ground that in his opinion the measure was one which could not be referred to the people for two reasons: First, that a reference thereof to the people would violate article 5 of the federal Constitution , wherein that article provides that the subject-matter thereof should be passed on by the "Legislature," which, as there used, is synonymous with "Legislative Assembly," and excludes the referendum. Second, that such reference to the people would violate section 1 of article 4 of the Oregon Constitution, wherein it is provided that the people of Oregon "also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly," because, it is claimed, the resolution, sought to be referred, is not an "act" within the meaning of the above-quoted phrase.

Much of the argument here is devoted to a discussion of the constitutionality of the proposed reference.

We do not believe this resolution, ratifying the proposed constitutional amendment, or any other resolution of our Legislature, was made the subject of referendum by sections 1 and 1a of article 4 of our amended Constitution, which are as follows:

"Section 1. The legislative authority of the state shall be vested in a Legislative Assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly. The first power reserved by the people is the initiative, and not more than eight per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent. of the legal voters, or by the Legislative Assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the Legislative Assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the state shall be had at the biennial regular general elections, except when the Legislative Assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be: 'Be it enacted by the people of the state of Oregon.' This section shall not be construed to deprive any member of the Legislative Assembly of the right to introduce any measure. The whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor."

"Sec. 1a. The referendum may be demanded by the people against one or more items, sections, or parts of any act of the Legislative Assembly in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections, or parts of an act shall not delay the remainder of that act from becoming operative. The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten per cent. of the legal voters may be required to order the referendum nor more than fifteen per cent. to propose any measure, by the initiative, in any city or town."

It seems clear to us that these sections apply only to proposed laws, and not to legislative resolutions, memorials, and the like. In the initiative clause it is said:

"The people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls."

The reservation clause reads:

"And also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly."

In the provision for referendum we find a direction that--

"Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the Legislative Assembly which passed the bill on which the referendum was demanded."

In section 1a we find the provision that--

"The referendum may be demanded by the people against one or more items, sections, or parts of any act of the Legislative Assembly in the same manner in which such power may be exercised against a complete act."

To ascertain what is meant by the terms "bill" and "act," as used in the amendments quoted above, we must refer to the sense in which they were used in the Constitution before the initiative and referendum amendments were passed. The word "bill" occurs in section 1 of article 4 of the original Constitution, where it is said, "The style of every bill shall be, 'Be it enacted by the Legislative Assembly of the state of Oregon,' and no law shall be enacted except by bill," thus indicating that a "bill" is a proposed law; a document in the form of a law presented to the Legislature for enactm...