Initiative Petition No. 314, In re

• Decision Date: 25 November 1980
• Docket Number: No. 550,No. 55638,550,55638
• Citation: 625 P.2d 595
• Parties: In re INITIATIVE PETITION NO. 314, State Question
• Court: Oklahoma Supreme Court

Page 595

625 P.2d 595

1980 OK 174

In re INITIATIVE PETITION NO. 314, State Question No. 550.

No. 55638.

Supreme Court of Oklahoma.

Nov. 25, 1980.

Rehearing Denied March 9, 1981.

INITIATIVE PETITION HELD VIOLATIVE OF ART. 24, § 1, OKL. CONST., AND NOT LEGALLY ENTITLED TO BE PLACED ON BALLOT FOR PURPOSE OF POPULAR ELECTION THEREON.

George Miller, W. J. Winterstein, Jr., Miller & Dollarhide, Oklahoma City, for contestants.

John W. Swinford, D. Kent Meyers, John J. Griffin, Jr., Barbara L. Snow, of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for proponents.

J. C. Joyce, Frank Keating, Gerald Hilsher, of Blackstock, Joyce, Pollard, Blackstock & Montgomery, Tulsa, for amicus Cam-Coors, Inc.; Hilton Inn of Tulsa, Inc.; Camelot Inn, Inc., Sheraton Inn-Skyline East.

Neil E. Bogan, Grandon Dean Luthey, Jr., Jones, Givens, Gotcher, Doyle & Bogan, Inc., Tulsa for amicus Stephens Distributing Co.

SIMMS, Justice:

This matter comes before us on a timely protest to the validity of Initiative Petition No. 314, State Question No. 550, and objections to the count of signatures subscribed thereto. Such proceedings are authorized by 34 O.S.Supp.1979, § 8.

This action was ordered bifurcated and the evidentiary hearing on the protest to signatures was referred to a Referee of the Supreme Court. The legal issues raised by contestants directed at the sufficiency and validity of the petition itself were retained by the Court. Briefing time on pure legal issues was accelerated, and the Court heard oral argument.

Due to the pressing public question presented and the short time between oral argument and the deadline for the printing of ballots for the November 4, 1980, general election, this Court announced its decision by an order, with opinion to follow, that Initiative Petition No. 314, State Question No. 550, embraced more than one general subject and was invalid as violative of Const. Art. 24, § 1.

Contestants launched a frontal attack upon Initiative Petition 314, essentially urging that:

(1) It is a resubmission of the same measure presented to the people in 1978 by State Question No. 530, Referendum No. 223, and as such, under Const. Art. 5, § 6, the petition must be proposed by no less than twenty-five per centum of the legal voters, and;

(2) It is invalid on its face because it submits under one proposal multiple separate and distinct subjects in violation of the "one general subject rule" of Art. 24, § 1, supra, and deprives the voters of the opportunity to vote separately for or against each proposal submitted.

We address both propositions.

I.

RESUBMISSION

Const. Art. 5, § 2, provides:

"The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so proposed. 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 petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted. The ratio and per centum of legal voters hereinbefore stated shall be based upon the total number of Const. Art. 5, § 6, provides:

votes cast at the last general election for the State office receiving the highest number of votes at such election."

"Any measure rejected by the people, through the powers of the initiative and referendum, cannot be again proposed by the initiative within three years thereafter by less than twenty-five per centum of the legal voters."

The resubmission argument advanced by contestants presents two questions: First, is the initiative presenting State Question (hereafter S.Q.) 550, a resubmission of the rejected S.Q. 530; and second, if so, how many signatures are necessary to propose it; i. e., what is the meaning of "legal voters" in Art. 5, § 6, supra?

Const. Art. 27, § 3, requires all manufacturers of alcoholic beverages to sell their products to every licensed wholesaler who desires to purchase them on the same price basis and without discrimination. S.Q. 530, ¹ rejected by the voters in 1978, proposed allowing territorial or marketing agreements between brewers of beer or cereal malt beverages and wholesalers. Section 3 of S.Q. 550 also proposes allowing territorial or marketing agreements between brewers of beer or cereal malt beverages and wholesalers.

Contestants argue that the purpose and object of both proposals are the same and that with only a few unimportant variations in language, the two proposals are virtually identical.

Proponents concede that there is "a similarity" between section 3 of S.Q. 550 and S.Q. 530 as they both permit brewers to enter into territorial or marketing agreements (beer franchising), but they contend that the similarity is confined to that single proposal and that section 3 is only a minor part of S.Q. 550.

The essence of proponents' argument is that S.Q. 550 must be viewed as a whole and that as a whole the measure proposes so many more changes than S.Q. 530, that the dissimilarities between the two greatly outnumber the one similarity of beer franchising.

Both parties rely on In re Initiative Petition 271, State Question No. 408, Okl., 373 P.2d 1017, cert.den. 371 U.S. 949, 83 S.Ct. 502, 9 L.Ed.2d 498 (1962) as supporting their respective positions. There the Court was presented with a challenge to that initiative as being a resubmission of S.Q. 397 which had been defeated within the preceding three years. Both questions were reapportionment proposals, however the Court found that they were not the "same measure" because there were significant differences of substance between them.

Among the differences noted by the Court between the two measures were these: (1) the second petition did not guarantee each county a representative as did the first; (2) the second retained the limit of House members which the first petition removed; (3) the second created the vehicle for electing additional Senators while the first petition limited the Senate to 48 members. The Court found that because of the differences, the second initiative was a "substantially different measure" (At 1019) and was not a resubmission under Art. 5, § 6.

There are no differences of any substance between section 3 of S.Q. 550 and S.Q. 530. Contestants are correct that the minor changes in language between the two in no way varied their purpose, object or effect. They both allow brewers to enter into unrestricted franchising agreements.

If section 3 of S.Q. 550 had been submitted alone it would clearly be a resubmission described by Art. 5, § 6, under the guidelines of In re Initiative Petition 271, or any other test. The question then becomes, is section 3 any less a resubmission simply because it is set forth in an initiative containing many other proposals?

The answer is obviously no. Proponents' arguments that under Initiative Petition 271 we must be confined in our analysis of the issue to comparing the entire "measure" Under proponents' theory the same measure could be resubmitted without the requisite signatures so long as it was subsequently presented in a package containing changes in other areas. We emphatically reject such a holding, for it takes no imagination at all to realize that it would nullify Art. 5, § 6.

of S.Q. 550 to the measure of S.Q. 530 and therefore find a multitude of "significant differences" are not well taken. Initiative Petition 271 did not concern a situation such as we have before us and the Court there certainly did not envision a situation where a resubmitted measure would be buried in an initiative containing numerous additional proposals.

We find that section 3 of S.Q. 550 is a resubmission of the same measure rejected in S.Q. 530, and in doing so uphold the spirit and integrity of Art. 5, § 6.

We must next determine the number of signatures required to propose the resubmitted measure by the initiative. Section 6 of Art. 5 provides that any rejected measure cannot be again proposed by the initiative "within three years thereafter by less than twenty-five per centum of the legal voters."

What is the meaning of "legal voters"? Contestants submit that it is the total number of persons properly registered to vote.

Proponents argue that basic rules of construction require Sections 2 and 6 of Art. 5 to be construed together so that "legal voters" in Section 6 means the same as "legal voters" in Section 2; that both percentages are calculated from the number of votes cast in the last general election for the state office receiving the highest number of votes.

We have no decision directly on point although in In re Initiative Petition No. 2, The New Jerusalem Proposition, 26 Okl. 548, 106 P. 823 (1910), while addressing the question of whether the particular joint resolution was either an initiative petition or a referendum within the meaning of § 6, so as to make the second measure a resubmission, the Court noted 106 P. at p. 823 that:

"It is further urged, however, that the same measure as this herein sought to be initiated was rejected by the people through the powers of the initiative and referendum at the general November election in 1908, and as this measure is proposed by less than 25 per centum of the legal voters, based upon the total number of votes cast at the last general election of the state office receiving the highest number of votes at such election, for that reason this petition is insufficient."

But the Court concluded 106 P. at p. 825 that:

"This, neither being a proposed constitutional amendment nor a measure initiated to become a law, was not rejected, and, never having been rejected, the fact that substantially the same measure may have within three years been sought to have been...