In re Referendum Petition No. 1, Town of Haskell

• Decision Date: 01 March 1938
• Docket Number: 27523.
• Citation: 77 P.2d 1152,182 Okla. 419,1938 OK 131
• Parties: In re REFERENDUM PETITION NO. 1, TOWN OF HASKELL.
• Court: Oklahoma Supreme Court

77 P.2d 1152

182 Okla. 419, 1938 OK 131

In re REFERENDUM PETITION NO. 1, TOWN OF HASKELL.

No. 27523.

Supreme Court of Oklahoma

March 1, 1938

Rehearing Denied April 5, 1938.

Syllabus by the Court.

1. The power reserved to the people under section 1 of article 5 of the Constitution is modified and limited by sections 2, 3 and 4 of said article.

2. The clerk of a municipality in passing upon the sufficiency of a referendum petition has authority to examine the petition to ascertain whether the legislation involved is prima facie such as may be referred.

3. The clerk of a municipality may properly declare a petition for a referendum insufficient when the legislation sought to be referred carries an emergency clause which is prima facie valid.

4. In towns and cities of this state operating under general laws emergency legislation must be passed and adopted in the manner provided by section 5889, O.S.1931, 34 Okl.St.Ann. § 53.

5. When an ordinance has been passed by the trustees of a town and the emergency attached in the cases and in the manner provided by section 5889, O.S.1931, 34 Okl.St.Ann. § 53, and such ordinance published in the manner required by statute it becomes immediately operative and thereupon, by virtue of section 2, article 5 of the Constitution, is excluded from the referendum.

Proceeding in the matter of the Referendum Petition No. 1 of the Town of Haskell, wherein D. B. Mascho filed a referendum petition demanding that an ordinance of the Town of Haskell carrying an emergency clause be referred to a vote of the people, and wherein Freeman Carter filed a protest challenging the petition for referendum. The town clerk sustained the protest, and the petitioner appeals.

Protest sustained.

Fred W. Martin, of Wagoner, for petitioner.

F. N. Shoemake and Harold Shoemake, both of Haskell, for protestant.

PER CURIAM.

There is here involved the action of a town clerk in sustaining a protest to the sufficiency of a petition which sought to invoke the referendum against an ordinance carrying an emergency clause. The board of trustees of the town of Haskell on April 14, 1936, passed and adopted Ordinance No 141, whereby the operation of pool halls was authorized under certain conditions. The ordinance carried the following emergency clause: "It being immediately necessary for the preservation of public peace, and safety an emergency is hereby declared to exist by reason whereof this ordinance shall take effect and be in full force from and after its passage and publication."

It is conceded that the emergency clause was adopted by the required vote of the trustees, and that the ordinance was duly published. Thereafter, on May 14, 1936, D. B. Mascho, hereafter referred to as petitioner, filed with the town clerk a referendum petition which demanded that said ordinance be referred to a vote of the people of the town. Freeman Carter, hereafter referred to as protestant, filed a protest challenging the petition for referendum on the ground that the legislation sought to be referred was emergency legislation, and therefore not such as could be submitted to a vote of the people. The town clerk after some delay heard the evidence and argument of the parties and sustained the protest and held the petition insufficient. The petitioner prosecuted an appeal to this court. The cause was thereupon assigned to the referees of the court for the purpose of taking testimony and making findings of fact. The parties thereupon appeared before the referees and stipulated concerning the facts. In this stipulation the parties conceded the regularity of all of the proceedings had with reference to the preparation and submission of the referendum to the town clerk and admitted that if the ordinance was one subject to the referendum that the petition should have been held sufficient. The parties further stipulated that the only questions presented for determination are as follows:

"First. Does the protest filed against the referendum petition raise questions which the town clerk has authority to determine on his hearing and this court on appeal?

Second. Is the ordinance No. 141 such an emergency measure as will prevent the same from being subject to the referendum? The special question involved being the emergency clause, and whether or not by reason thereof did the ordinance become immediately operative upon its passage and approval."

It is the theory of the petitioner that the protest filed by the protestant involved a judicial determination of the sufficiency of the emergency clause attached to the ordinance, and that therefore the town clerk had no authority to pass upon this question, and that on appeal this court is likewise limited and that in any event the emergency clause was insufficient to render the ordinance immediately operative. It is the theory of the protestant that the town clerk had authority to determine the nature of the legislation sought to be referred and to pass thereon, and that as a matter of law the emergency clause was sufficient to render the ordinance immediately operative. We will discuss these several contentions in the light of the pertinent constitutional provisions and certain prior decisions of this court.

Under section 1, article 5 of the Constitution, the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any acts of the Legislature. However, under section 2 of said article a limitation is imposed upon the power of referendum, and therein it is expressly provided that it may be invoked against any legislative act, except laws necessary for the immediate preservation of public peace, health, and safety. By section 5 of the same article the powers reserved to the people of the state at large are further reserved to the legal voters of every county and district therein as to all local legislation, and by section 4 (a), article 18 of the Constitution, it is further provided: "The powers of the initiative and referendum, reserved by this Constitution to the people of the State and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this State, with reference to...