Referendum Petition No. 1, Ordinance 6-B, City of Sand Springs, In re

• Decision Date: 11 July 1950
• Docket Number: No. 32828,32828
• Citation: 220 P.2d 454,203 Okla. 298
• Parties: In re REFERENDUM PETITION NO. 1, ORDINANCE 6-B, CITY OF SAND SPRINGS.
• Court: Oklahoma Supreme Court

Page 454

220 P.2d 454

203 Okla. 298

In re REFERENDUM PETITION NO. 1, ORDINANCE 6-B, CITY OF SAND SPRINGS.

No. 32828.

Supreme Court of Oklahoma.

July 11, 1950.

Syllabus by the Court

1. When an original referendum petition with respect to an ordinance adopted by the legislative body of a city operating under a special charter, which makes no provision as to procedure under the referendum provisions of the Constitution is filed, it is a duty of the city clerk to forthwith cause to be published in at least one newspaper of general circulation within such city, a notice setting forth the date of such filing. Any citizen of the city may within ten days by written notice to the city clerk and the party or parties who filed such petition, protest against the same. Such protest is in time if filed within ten days after the publication of such notice by the city clerk.

2. Where a city clerk fails or refuses to cause to be published notice setting forth the date of the filing of the referendum petition with reference to the adoption of a city ordinance, a citizen of such city may waive the publication of the notice and protest against the referendum petition at any time by written notice to the city clerk and the party or parties who filed the referendum petition.

3. After the referendum has been invoked, and until the voters have acted thereunder, the subject matter of a referred city ordinance is entirely withdrawn from further consideration of the legislative body of the city. It can neither amend nor repeal the ordinance during that time.

4. Under the Constitution and statutes of the State of Oklahoma relating to holding election on referred measures of a municipality, there is a period of time in which the legislative body of the municipality is without power or authority to repeal, amend or re-enact an ordinance regularly before the people for approval or rejection, and that period of time is from the date of filing a valid petition for referendum to the date of the referendum vote.

Marvin T. Johnson and Pinkerton & Wills, Tulsa, for proponents.

Coffey & Coffey, Tulsa, for protestants.

O'NEAL, Justice.

This is an appeal from a decision of the City Clerk of the City of Sand Springs, Oklahoma, holding and declaring insufficient a referendum petition in the adoption of an ordinance of the said city.

From the record it appears that on August 13, 1946, the Board of Commissioners of the City of Sand Springs--said board being the legislative body of said city--adopted an ordinance designated as Ordinance 6-B dealing with the installation and operation of parking meters in said city. Said ordinance was adopted or passed by a majority of the three members of the board, one member dissenting thereto. Thereafter on August 27, 1946, a copy of a referendum petition was filed in the office of the city clerk, having for its purpose the commencement of proceeding to refer the matter of adoption of said ordinance to a vote of the electors of said city; September 5, 1946, notice of the filing of said copy of said petition was published and on September 11, 1946, there was filed with the city clerk and mayor a referendum petition against said ordinance bearing the signatures of 476 persons purporting to be duly qualified voters of said city. September 23, 1946, F. F. Ashby filed a protest as to said referendum petition. Thereafter a hearing was conducted by the city clerk and he found and held said referendum petition insufficient.

The proponents of said referendum petition appealed to this Court. The matter was referred to the Honorable Marion Northcutt, one of the referees of this Court, for a hearing with directions to make findings of fact and conclusions of law and report the same to this Court. The matter was set for hearing before the referee on October 12, 1949. It was stipulated that the number of qualified voters residing within the city of Sand Springs and 1086. In the meantime, September 10, 1949, there had been filed a motion by F. F. Ashby and the city of Sand Springs, to dismiss the appeal herein. The grounds for the motion are that the subject matter of said appeal has become and is not a moot case for the reasons:

'1. That heretofore, to-wit, on the 9th day of August, 1949, the Board of Commissioners of the City of Sand Springs, in regular meeting assembled, did pass and approve Ordinance No. 17B, which ordinance had for its purpose the repealing of Ordinance 6B, same being the ordinance in question involved in said appeal, the title to Ordinance 17B being as follows:

"An ordinance rescinding and repealing Ordinance No. 6B, the same being an ordinance passed and approved by the Board of Commissioners of the City of Sand Springs, Oklahoma, on the 13th day of August, 1946, relating to traffic, and regulating the use of public streets and highways of the City of Sand Springs and providing for the installation, regulation and control of the use of parking meters, and parking meter zones."

To the motion to dismiss, and made a part thereof, was a copy of Ordinance 17-B, referred to in the motion to dismiss. On October 12, 1949, when the matter came on for hearing before the referee the original Ordinance 17-B was offered in evidence and the parties stipulated that the document presented was the original Ordinance 17-B and was in terms the same as the copy attached to the motion to dismiss. The ordinance was admitted in evidence over the objection of the proponent. It was then stipulated and agreed that the charter of the city of Sand Springs does not cover initiative and referendum proceedings, and that the state law relating to reference in this matter is controlling. Thereupon the matter was presented to the referee on the motion to dismiss the appeal and on the merits of the appeal. So far as the record shows there was no evidence introduced tending to prove the insufficiency of the referendum petition nor tending to prove that any of the signatures to the same were not qualified electors of said city of Sand Springs.

The referee found as a fact that the Board of Commissioners of the city of Sand Springs passed and adopted Ordinance 17-B, and that the purpose thereof was to repeal Ordinance 6-B.

The conclusions of law by the referee are: That there was filed in the office of the proper officer of the city of Sand Springs a duly authorized referendum petition containing the signatures of more than 25 per cent of the qualified electors of the city of Sand Springs; that the filing of the protest by F. F. Ashby on the 23d day of September 1946 was within time; that the appeal from the ruling of the city clerk was duly filed and conferred jurisdiction upon the Supreme Court to determine the issues involved; that there is no evidence to contest the fact that the 476 signatures to the referendum petition are those of qualified electors residing within the corporate limits of the city of Sand Springs; that the referendum petition filed on the 11th day of September 1946 was sufficient in all respects and suspended the operation and the effect of Ordinance 6-B as passed and approved by a two-third's majority of the Board of Commissioners of the City of Sand Springs on August 13, 1946; that said Ordinance 6-B was by said process suspended and is now suspended from operation.

The referee further concluded that the motion to dismiss the appeal should be denied for the reason that the Board of Commissioners was without authority in fact and in law to repeal Ordinance 6-B for the reason that the filing of the referendum petition on September 11, 1946, suspended the operation of Ordinance 6-B, and precluded the right of legislative action thereon until a final determination of the question by a vote of the people on the referendum petition.

The referee further concluded, as a matter of law, that the referendum petition submitted in this case is sufficient in all respects and should be so declared by this Court.

There was some question raised as to the right of the city of Sand Springs to appear as one of the parties to the motion to dismiss the appeal. The referee concludes that it is unnecessary to determine the question of the right of the city due to other findings and conclusions made in the proceedings.

The questions involved have been extensively briefed. There is no serious contention that the findings of fact by the referee are incorrect. The principal questions are questions of law.

It is first contended by the proponent that the protest filed by F. F. Ashby, attacking the referendum petition, was not filed within the time allowed by law and is, therefore, of no legal effect.

Ordinance 6-B without an emergency clause, was adopted by the Board of Commissioners of the city of Sand Springs on August 23, 1946. A copy of the proposed referendum petition was filed August 27, 1946. Notice of the filing of the copy of the referendum petition was published by the city clerk on September 5, 1946. The original referendum petition bearing the 476 signatures was filed September 11, 1946. No notice of the filing of the original petition was ever published.

The protest of Ashby was filed September 23, 1946, twelve days after the referendum petition was filed.

The petition of protestant appears to be that the statute calls for the filing of a protest within ten days after the original referendum petition is filed.

It is conceded that the charter of the city of Sand Springs makes no provisions relative to initiative and referendum proceedings and that the matters, therefore, are governed by the state law. The statute relied upon and cited by proponent is 34 O.S.1941 § 8, which, with reference to the time of filing a protest against a referendum petition, provides: 'When such original petition is filed in said office (here the city clerk) it shall be the duty of the Secretary of State (here the city clerk) to forthwith cause to be published in at least one newspaper of general circulation within the State, ...