Ruth v. Peshek

• Decision Date: 03 November 1931
• Docket Number: Case Number: 21974
• Parties: RUTH v. PESHEK, City Clerk.
• Court: Oklahoma Supreme Court

1931 OK 674

5 P.2d 108

153 Okla. 147

RUTH v. PESHEK, City Clerk.

Case Number: 21974

Supreme Court of Oklahoma

Decided: November 3, 1931

Syllabus

¶0 1. Municipal Corporations--Initiative Petition to Amend City Charter--Sufficiency of Petition--Duties of City Authorities.

Initiative petition to amend the city charter filed with the proper authorities of the city, and the record discloses there were 6,678 votes cast at the general election held in the said municipality preceding the filing of the initiative petition and said initiative petition contains signatures of more than ten thousand voters and no protest is filed against said petition, it is the duty of the municipal authorities to examine said petition as to form and sufficiency, and where the same is found to be sufficient in form, it is the duty of the city authorities to call an election thereon.

2. Same--Signatures Presumed Legal--City Authorities not Authorized to Strike or Ignore Signatures Without Hearing.

The names attached to an initiative and referendum petition regularly filed with the city clerk, sufficient in number and for the purpose of having the questions therein contained submitted to an election, are presumed to be the signatures of legally qualified citizens and electors of the said municipality; and that the post offices and places of residence given therein are correct; the city authorities are without jurisdiction or authority to strike from said petition or to ignore the signatures on said petition without a hearing thereon and the proponents of said petition given an opportunity to appear and defend the petition so presented to the city authorities.

3. Same--Right of Appeal to Supreme Court From Action of City Authorities in Refusing to Call Election.

Section 6631, C. O. S. 1921, providing for appeal for measures provided for the people of the state at large, provides that such appeal shall be taken from the Secretary of State to the Supreme Court and provides a procedure therefor. Section 6647, C. O. S. 1921, provides in part as follows: The procedure in municipal legislation shall be as nearly as practicable the same as the initiative and referendum procedure for measures relating to the people of the state at large. Held, that an appeal would lie for the act of the city authorities in refusing to call an election upon initiative and referendum petition to the Supreme Court of this state.

4. Same--Statutes Prescribing Initiative and Referendum Procedure Liberally Construed.

Section 6652, C. O. S. 1921, is a section dealing with the procedure in initiative and referendum actions which provides: The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. If the end aimed can be attained and the procedure shall be sustained, clerical and mere technical errors shall be disregarded. Held, that a liberal construction should be given to the end that the people may express their opinion in concrete form upon matters of public concern.

Action in the Supreme Court by C. H. Ruth against M. Peshek, Jr., City Clerk, to review the action of Oklahoma City officials in refusing to call an election on initiative petition filed therein. Reversed, with directions.

C. H. Ruth, for plaintiff in error.

A. L. Hull, for defendant in error.

CLARK, V. C. J.

¶1 This action is an appeal from the action of the city clerk of Oklahoma City holding that the initiative petition to amend the city charter of Oklahoma City was insufficient to authorize the mayor and city council of said city in calling and holding an election to submit certain amendments to the city charter to the qualified electors of the said city.

¶2 The initiative petition was presented and filed with the city clerk on October 7, 1930, and thereafter, and on the 2nd day of December, 1930, the said city clerk filed his report on the said initiative petition with the mayor and city counsel of said city holding the petition insufficient; that from his information and investigation the petitions were circulated on the representations that they were signed for other purposes than for the purposes set out in the petition, and that the signers were not, in fact, advised that they were signing a petition to amend the city charter, and for other reasons set out in the report of the employees making investigations as to the signatures, residence, etc., of the signers, which report was made a part of the report of the city clerk to the mayor and council. That, thereafter, and on the 2nd day of December, 1930, the city council passed "resolution" accepting the report of the city clerk and denying the initiative petition.

¶3 The initiative petition called for a vote on said petition at the next general election, to be held on the 4th day of November, 1930.

¶4 The record discloses that there were 6,678 votes cast at the city general election held Tuesday, April 2, 1929, and 19 spoiled ballots; which was the last city general election held preceding the filing of the initiative petition.

¶5 The sheets attached to the initiative petitions contained the signatures of more than 10,000 signers.

¶6 From the act of the city in refusing to call the election petitioners appealed to this court. The procedure providing for review of the act of the city officials in refusing to call the election is set forth in section 6647, C. O. S. 1921, under the heading of "Procedure in Municipalities," and provides in part as follows:

"The procedure in municipal legislation shall be, as nearly as practicable, the same as the initiative and referendum procedure for measures relating to the people of the state at large."

¶7 Section 6631, C. O. S. 1921, providing for appeal for measures relating to the people of the state at large, provides that such appeal shall be taken from the Secretary of the State to the Supreme Court, and provides the procedure therefor.

¶8 Section 6647, supra, provides that this procedure shall apply in appeals in municipal legislation.

¶9 The city charter of Oklahoma City does not provide a method of appeal in such cases as the case at bar, and even if it did, the state law providing procedure in such cases and fixing the jurisdiction thereof on appeal would be controlling.

¶10 Oklahoma Report, said:

"But let that be as it may, the district court was without jurisdiction to pass on the sufficiency of the petition, and for that reason did not err in dismissing the appeal.

"In support of the contention that the court was vested with jurisdiction to entertain said appeal, petitioner says that, although the Act of March 17, 1910 (Sess. Laws 1910, c. 66), in effect repealed that part of section 6 of the act approved April 16, 1908 (Sess. Laws 1907-1908, c. 44, art. 1), which vested the district court with jurisdiction to entertain appeals from the action of the city clerk in all cases where the initiative or referendum is invoked upon matters of purely municipal concern, yet, he says that, as said section was incorporated in the city charter, adopted March 8, 1911, the effect of the adoption was to vest the district court with jurisdiction to entertain this appeal. There is no merit in this contention for the reason that the jurisdiction of the courts of this state is fixed by the law-making power of the state, and not by the lawmaking power of any municipality therein. It goes without saying that when the Legislature authorized the people of this municipality to adopt a charter and legislate therein upon matters of purely local and municipal concern, it did not intend to, and could not, vest the municipality with power to legislate with respect to state government."

And we therefore hold that this court has jurisdiction to entertain this appeal.

¶11 Article 9 of the charter of Oklahoma City, see. 13, provides:

"Amendment of Charter. This charter may be amended at any time at an election at which the proposed amendment is submitted to a vote of the qualified electors of the city, by a majority vote of the electors voting at such election on such proposed amendment.

"The board of commissioners may submit any proposed amendment to this charter to a vote of the qualified electors of the city at any general election or at a special election.

"At such election the general election laws of the state shall govern."

¶12 Section 14 of the charter of Oklahoma City provides:

"Initiative and Referendum Vitalized.--Section 4-a, section 4-b, section 4-c, section 4-d and section 4-e of article 18 of the Constitution of the state of Oklahoma, under the title 'Initiative and Referendum,' are hereby adopted and made in full force and effect as if copied word for word in the body of this charter, and chapter 51 of Snyder's Compiled Laws of Oklahoma of 1909, under the title 'Initiative and Referendum,' and all sections thereof, are hereby adopted in full force and effect as if copied word for word in the body of this charter; and sections 3690, 3691 and 3692 of said chapter 51, of said Snyder's Compiled Laws of Oklahoma, making provision, among other things, for the procedure in municipalities under the Initiative and Referendum, are hereby adopted and made in full force and effect."

¶13 Section 1, article 5, of the Constitution of Oklahoma provides:

"The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but 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 act of the Legislature."

¶14 Section 4-a of art. 18 of the Constitution provides:

"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

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