Holmes v. Appling
| Decision Date | 25 May 1964 |
| Citation | 237 Or. 546,392 P.2d 636 |
| Parties | Robert HOLMES and Charles Sprague, Plaintiffs, v. Howell APPLING, Jr., Secretary of State, State of Oregon, Defendant. |
| Court | Oregon Supreme Court |
Keith D. Skelton, Eugene, and Verne W. Newcomb, Portland, argued the cause for plaintiffs. With them on the brief were Sabin, Dafoe & Newcomb and Jack B. Schwartz, Portland.
John J. Tyner, Jr., Asst. Atty. Gen., Salem, argued the cause for defendant. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, DENECKE, LUSK, and WARNER, JJ.
This is a mandamus proceeding of which this court took original jurisdiction under the Constitution of Oregon, Article VII, Section 2, and ORS 34.120. The petitioners are two former governors of this state, the Honorable Robert D. Holmes and the Honorable Charles A. Sprague. The defendant is the Secretary of State of this state. The purpose of the proceeding is to compel the defendant to furnish a ballot title for a measure which the plaintiffs seek to have submitted to the voters of Oregon for their approval or rejection at the election to be held on November 3, 1964, pursuant to the initiative provisions of the Constitution of Oregon. The alternative writ alleges that heretofore the plaintiffs delivered a signed copy of an initiative petition to the defendant, who sent two copies thereof to the Attorney General for the furnishing of a ballot title; that the Attorney General has transmitted a ballot title to the defendant, but the defendant has refused to perform his mandatory duty to furnish them a ballot title, as required by ORS 254.060(2). 1 The measure which the plaintiffs desire to have thus submitted to the electorate is entitled: 'Proposed Constitutional Amendment.'
As stated in his answer to the alternative writ, the defendant refused to furnish a ballot title for the measure because he had been advised by the Attorney General that the petition proposed a new constitution or a revised constitution and that the initiative power reserved to the people to amend the constitution does not permit the submission to the people of a revised or new constitution and that he was acting upon such advice.
The question for decision is whether the proposed measure is, in truth, an amendment of the existing constitution, a revision of that document, or a new constitution.
We proceed to an examination of the relevant provisions of the present constitution.
Article IV, Section 1, Constitution of Oregon, states:
It will be noticed that that section of our constitution is concerned with the power to propose 'amendments to the constitution.' It does not employ the term 'revision.'
Article XVII, Section 1, states:
(Italics added.)
That section of our constitution refers to 'amendment or amendments' and to a 'new' constitution. Like Article IV, Section 1, from which we quoted above, it does not mention a revision.
From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution. Section 1 of Article XVII specifies the method whereby the legislature may propose amendments; it provides that 'Any amendment or amendments' may be proposed in either branch of the Legislative Assembly and if the proposal meets with the approval of a majority of all the members elected to each of the two houses, the 'amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their appoval or rejection'.
We come now to the provisions dealing with revision of the constitution.
Section 2, subdivision (1), of Article XVII provides:
* * *'
It will have been observed that the foregoing section begins with these words: 'In addition to the power to amend this Constitution * * * a revision of all or part of this Constitution' may be proposed in either house of the Legislative Assembly and that the section requires the vote of at least two-thirds of all the members of each house before the proposed revision may be referred by the secretary of state to the people for their approval or rejection. It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate.
It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by those who favor amendments, revision, or other change only through the use of one of the specified means. Boyd v. Olcott et al., 102 Or. 327, 202, P. 431.
The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, v. 1, Oregon Laws 1961, p. 1514, and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, Senate and House Journal, 1963, pp. 872-873.
While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution and a complete constitution, commencing with the customary 'The people of Oregon ordain this Constitution,' and including an article providing for the transition period between the date of its adoption and the day it was to go into effect. It is 56 typewritten pages in length. It contains many and important changes in substance, many others in language, removing ambiguities and correcting errors, and still others in the arrangement of its various provisions.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. There is, indeed, much in the document to indicate that it is intended to be a new constitution, rather than a revision, and that those who drafted it so considered it. We call attention to the following provisions. (The italics in all the matter quoted are added.)
The enacting clause reads:
'Be It Enacted by the People of the State of Oregon:
'The Constitution of the State of Oregon is amended by adoption of the following Constitution of the State of Oregon in lien of the Constitution of the State of Oregon of 1859, as amended, which is repealed:'
Notwithstanding the use of the word 'amended', the foregoing language, considered in its entirety, can only mean that the existing constitution is to be supplanted by a new one.
Article X, Section 6, subdivision 2, reads in part:
'The authorization under the former Oregon Constitution for the incurring of state indebtedness for building and maintaining permanent roads * * * is continued in effect under this Constitution.'
Article XIII, entitled 'Transitional,' provides in part:
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