Initiative Petition No. 249, In re

• Decision Date: 09 October 1950
• Docket Number: No. 34611,34611
• Parties: In re INITIATIVE PETITION NO. 249. In re STATE QUESTION NO. 349.
• Court: Oklahoma Supreme Court

Page 1032

222 P.2d 1032

203 Okla. 438

In re INITIATIVE PETITION NO. 249.

In re STATE QUESTION NO. 349.

No. 34611.

Supreme Court of Oklahoma.

Oct. 9, 1950.

Rehearing Denied Oct. 13, 1950.

Syllabus by the Court.

1. The general rule is that where two inconsistent statutes are carried into the codified law the one last passed, which is the later declaration of the legislative will, should prevail, regardless of the order in which they are placed in the compilation.

2. Record examined, and held, that Initiative Petition No. 249, herein involved, is substantially in the form required by law, and is sufficient.

3. Where a protestant attacks the signatures appearing on an initiative petition on the ground that the signers were not registered voters, it is presumed that said persons are registered voters, and the burden is upon the protestant to produce sufficient competent evidence to overcome such presumption. Held, in the instant case, that the evidence tending to prove that the signers whose names were attacked were not registered voters was not sufficient to overcome the presumption.

Harry T. Hudson, Jr., Oklahoma City, for protestant.

A. J. Moore, David C. Shapard, Oklahoma City, for proponent.

Paul & McPheron, Durant, amicus curiae.

LUTTRELL, Justice.

This is an appeal from the action of the Secretary of State in holding valid Initiative Petition No. 249, State Question No. 349, proposing amendments to existing laws with reference to the amount of sales tax to be levied upon sales within this state, and apportioning the revenues derived from the increased sales tax therein provided for. To this petition protestant J. M. Ashton filed his written protest, which was by the Secretary of State overruled and denied, the Secretary holding that the initiative petition was valid. Protestant appealed to this court. Hearings upon the protest were had before a referee appointed by this court, and at the conclusion of all the evidence the referee made findings of fact, and filed his report upholding the validity of the initiative petition. Protestant filed exceptions to the findings and report of the referee. The exceptions urged have been briefed and argued orally, and submitted to the court for final determination.

The hearing in this court is a trial de novo, in which the burden rests upon the protestant to establish his various contentions. In re Initiative Petition No. 142, State Question No. 205, 183 Okl. 343, 82 P.2d 803.

By 34 O.S.1941 § 8, an appeal to this court is provided for from the action of the Secretary of State and it is therein provided that upon such appeal 'such court shall give such cause precedence over all others.'

Protestant's first contention is that his challenge to the jurisdiction of the Secretary of State to pass upon the sufficiency of the petition should have been sustained. This contention is based upon the fact that while 34 O.S.1941 § 8, provides that the Secretary of State shall pass upon the sufficiency of the petition and upon protests filed to its sufficiency, 34 O.S.1941 § 26, provides as follows: 'All duties of any nature whatsoever, which by this chapter were originally imposed upon the Secretary of State, shall be hereafter performed by the State Election Board if such board is continued in existence. Should such board be discontinued, the duties herein imposed upon the same shall be performed by the Secretary of State.'

Examination of the statutes discloses that section 26 was passed by the Legislature in 1910, being approved March 17, 1910, and with certain changes in verbiage appears in the Revised Laws of 1910 as section 3401. Section 8 above referred to, S.L.1911, p. 236, was enacted as an amendment to section 2, Art. 1, Ch. 66, of the Session Laws of 1910, and was approved March 18, 1911. Apparently it is also contained in the Revised Laws of 1910 as section 3375. However, it is to be noted that the Act adopting the Revised Laws of 1910, S.L.1911, Ch. 39, expressly provides that it shall not be construed to repeal any Act of the Legislature enacted subsequent to the adjournment of the extraordinary session of the Legislature which convened in January, 1910. Therefore the inclusion of the 1911 law in the Revised Laws of 1910, although followed by the inconsistent provisions of section 3401, did not operate to nullify or repeal it. The two sections are inconsistent, being in irreconcilable conflict. In such case the 1911 law, section 8, supra, being the last statute enacted in point of time, will prevail.

The general rule is that where two inconsistent statutes are carried into the codified law the one last passed, which is the later declaration of the legislative will, should prevail, regardless of the order in which they are placed in the compilation. 50 Am.Jur., p. 471, section 457. Ramsey v. Leeper, 168 Okl. 43, 31 P.2d 852; Stephenson v. O'Keefe, 195 Okl. 28, 154 P.2d 757.

Although the question of the conflict between the two sections does not appear to have been heretofore raised, the court has in numerous decisions upheld the authority of the Secretary of State to pass upon the sufficiency of such petitions. See In re Initiative Petition No. 158, State Question 229, 188 Okl. 111, 106 P.2d 786; In re Initiative Petition No. 242, State Question No. 336, 201 Okl. 423, 206 P.2d 1000; Associated Industries of Oklahoma v. Oklahoma Tax Commission, 176 Okl. 120, 55 P.2d 79. In view of the above this contention is untenable.

Protestant next contends that the Initiative Petition is defective in form in that, while it proposes to amend certain sections of the statute, it omits a portion of one section proposed to be amended, placing a sales tax upon dues or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, and that the certificate, instead of reciting that the following 'proposed law' shall be submitted to the legal voters of the state, provides that the following 'proposed amendments to existing law' shall be submitted to the legal voters of the state. This contention is likewise untenable. Unquestionably an existing statute may be amended by the passage of another statute omitting a portion thereof, just as it may be amended by changing a portion, or by adding to the provisions thereto. The certificate, although not using the exact terms set forth in 34 O.S.1941 § 2, in our judgment sufficiently advises the voters of the nature of the proposed change in the existing laws. We have heretofore held that substantial compliance with the provisions of the statutes with reference to initiative petitions is sufficient, and that mere technical errors will be disregarded. In re Initiative Petition No. 176, State Question No. 253, 187 Okl. 331, 102 P.2d 609; In re Initiative Petition No. 224, State Question No. 314, 197 Okl. 432, 172 P.2d 324. We hold that the petition in the instant case is sufficient in form.

Protestant's last contention is that the referee erred in holding insufficient the evidence adduced by protestant tending to show that persons signing the initiative petition in various counties in the state, including Oklahoma County, were not registered voters. In this connection the oral testimony of the county clerk of Oklahoma County, and of several of the former...