Moore v. Oklahoma City

• Decision Date: 01 March 1927
• Docket Number: 18128.
• Citation: 254 P. 47,122 Okla. 234,1927 OK 49
• Parties: MOORE, Commissioner of Public Works, et al. v. OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

254 P. 47

122 Okla. 234, 1927 OK 49

MOORE, Commissioner of Public Works, et al. v. OKLAHOMA CITY et al.

No. 18128.

Supreme Court of Oklahoma

March 1, 1927

Syllabus by the Court.

Section 3(a), art. 18, of the Constitution consists of two groups of provisions, whereby cities containing a population of more than 2,000 may obtain two distinct primary rights, viz.:

First for obtaining a charter, authorizing and granting independent self-government in municipal affairs.

Second for amending such charter after havonce adopted same.

The first object must be obtained through a board of freeholders in the manner prescribed.

The second may be obtained either through an initiated petition or through the legislative authority of such city without such petition.

Said section contains no provision for repealing nor annulling such charter after having been once duly adopted, nor provision whereby the state may revoke the rights therein granted, a charter once duly adopted becomes the organic law of a city, but subject to amendment as provided in said article 18.

A change, in the plan of governing and administering the municipal affairs of a chartered city, from a commission form to a managerial form of government, is not the repeal of its charter nor the adoption of a new charter, nor the surrendering of its charter rights, but is an "amendment" and within the scope of valid amendments, so long as its charter rights and powers of independent self-government are retained and brought forward in the proposed change (citing Words and Phrases "Amendment").

Under any form of city government, the police forces thereof must necessarily co-operate with the peace officers of the state in keeping the peace of the state.

The fact that a provision for issuing and retiring the municipal bonds of a city, is embodied with other provisions in a proposed change in form of city government, and is submitted under one ballot title with the other provisions, does not on the grounds of being unrelated and incongruous, render the election void.

An election will not be held void and set aside on grounds of mere technical irregularities, where it appears that the proposition voted upon had been fully discussed and was fully understood by the voters, and no charge of fraud is made nor any complaint made as to opportunity for full and free expression of the voters.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Suit by Warren E. Moore, as Commissioner of Public Works of Oklahoma City, individually, and the State, on the relation of J. K. Wright, County Attorney of Oklahoma City, against Oklahoma City and others, to test the validity of a purported amendment to the charter of Oklahoma City. Submitted on an agreed statement of facts. From a judgment that the act was an amendment only, and was valid, plaintiffs appeal. Affirmed.

D. S. Levy and J. K. Wright, both of Oklahoma City, for plaintiffs in error.

Frank Martin, R. R. Bell, Frank Wells and D. B. Welty, all of Oklahoma City, for defendants in error.

HARRISON J.

The purpose of this suit is to test the validity of the purported amendment to the charter of Oklahoma City, adopted at the last general election, the object of which was to change from what is designated as the commission form to a managerial form of government.

The principal contention of plaintiffs in error, who were plaintiffs below, is that the purported amendment is not in fact a mere amendment, but in fact and in legal effect is an out and out new charter, and, being a new charter, was not adopted as required by the Constitution of the state, and is therefore invalid.

The questions involved were submitted to the district court upon an agreed statement of facts, and the court held the act to be an amendment merely, and to be in all respects valid, and plaintiffs in error appeal to this court for a reversal of the judgment.

The contentions of plaintiffs in error are based primarily upon the provisions of article 18, § 3(a) of the Constitution, which are as follows:

"Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, by causing a board of freeholders, composed of two from each ward, who shall be qualified electors of said city, * * * at any general or special election, whose duty it shall be, within ninety days after

such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board or a majority of them, and returned, one copy of said charter to the chief executive officer of such city, and the other to the register of deeds of the county in which said city shall be situated. Such proposed charter shall then be published in one or more newspapers published and of general circulation within said city, for at least twenty-one days, if in a daily paper, or in three consecutive issues, if in a weekly paper, and the first publication shall be made within twenty days after the completion of the charter; and within thirty days, and not earlier than twenty days after such publication, it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the Governor for his approval, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this state. Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. A copy of such charter, certified by the chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors and its ratification by them shall, after the approval of such charter by the Governor, be made in duplicate and deposited, one in the office of the Secretary of State, and the other, after being recorded in the office of said register of deeds, shall be deposited in the archives of the city; and thereafter all courts shall take judicial notice of said charter. The charter so ratified may be amended by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof (or by petition as hereinafter provided) at a general or special election, and ratified by a majority of the qualified electors voting thereon, and approved by the Governor as herein provided for the approval of the charter."

The contention is that the purported amendment in question, being in fact and in legal effect a new Constitution, should have been prepared and submitted by a board of freeholders as provided in the first portion of the foregoing section for the adoption of a charter in the first instance by a city containing more than 2,000 inhabitants, and that having been submitted as provided in the latter portion of said section for the submission of mere amendments to city charters renders it invalid as a new charter.

It is not denied that the question was legally submitted, if in legal effect it is an amendment and not a new charter. In other words, it is not denied that the question was properly submitted as an amendment, but, being a new charter, rather than an amendment, it should have been submitted under the provisions for adopting a charter, as provided in the first part of said article 18, § 3(a), and because it was not so submitted, it is invalid.

Plaintiffs in error quote section 4(e) of article 18, Id., also, but as such section has reference only to amendments initiated under the initiative and referendum provisions of the Constitution, it has no decisive effect upon the real question here involved. The really decisive questions seem to us to be:

(1) Whether the matter adopted is an amendment or an entirely new charter.

(2) If a new charter, out and out, whether even then the city, after having been once granted a charter, with the full privilege of self-government in its municipal affairs, would thereafter be limited to the constitutional provision for obtaining a charter in the first instance, when desirous of merely changing its method or system of managing its own purely municipal affairs.

The first of the above questions is presented by plaintiffs in their proposition; they contending that it is not a mere amendment but a new charter.

As to whether it is an amendment only and not a new charter, must be determined partly by the definitions which the courts have given the term "amendment," and the distinctions which they have sought to draw between amendments and new acts, and partly by the peculiar constitutional provision governing the particular matter, but largely by the application of common reason to the real substance before us.

The definitions given the word or term "amendment" by different courts are substantially the same in effect, but, as to determining the exact legal scope, the exact limits of an amendment, or the definite line of distinction between amendments and new acts, and just where an amendment crosses such line and in legal effect becomes a new act, there is no settled rule.

The Supreme Court of California, in Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L. R. A. 312, defines the term as follows:

"* * * The term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed."

In People ex rel. Moore v. Perkins, 56 Colo. 17, 137 P. 55, Ann. Cas. 1914D, 1154, the Supreme Court of Colorado, defines amendment as follows:

"The term 'amendment' being defined as

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