State ex rel. Bylander v. Hoss

• Decision Date: 13 June 1933
• Citation: 143 Or. 383,22 P.2d 883
• Parties: STATE ex rel. BYLANDER v. HOSS, Secretary of State.
• Court: Oregon Supreme Court

22 P.2d 883

143 Or. 383

STATE ex rel. BYLANDER v. HOSS, Secretary of State.

Supreme Court of Oregon

June 13, 1933

En Banc.

Original proceeding in mandamus by the State of Oregon, on the relation of George Bylander, to compel Hal E. Hoss, as Secretary of State, to submit to the voters of Oregon, for their approval or rejection at special election on July 1 1933, an initiative measure to repeal prohibition amendment of Constitution of Oregon. On demurrer to alternative writ.

Demurrer to alternative writ overruled, and peremptory writ directed to issue.

CAMPBELL J., dissenting.

John J. Beckman, of Portland (Latourette &amp Latourette, of Portland, on the brief), for plaintiff.

I. H. Van Winkle, Atty. Gen., for defendant.

BELT Justice.

This is an original proceeding in mandamus to compel the Secretary of State to submit to the voters of Oregon for their approval or rejection at the special election on July 21, 1933, an initiative measure to repeal the prohibition amendment of the Constitution of Oregon, being sections 36 and 36a of article 1 thereof.

The demurrer to the alternative writ presents the question as to whether chapter 440, Oregon Laws for 1933, authorizes the submission of such initiative measure at this special election. The petition filed with the Secretary of State requests that the measure be submitted to the legal voters of the state "for their approval or rejection at Special Election to be held on Friday, the 21st day of July A. D. 1933, or at the general election to be held on the first Tuesday after the first Monday of November A. D. 1934."

It is conceded that an election in order to be valid must be authorized by law and that there is no inherent power of the people to hold an election. State ex rel. Everding v. Simon, 20 Or. 365, 26 P. 170; State ex rel. Swan v. Kozer, 115 Or. 638, 239 P. 805. Indeed, section 1 of article 4 of the Constitution of Oregon provides, among other things, that: "*** All elections on measures referred to the people of the state shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election." We must find statutory authorization therefor if the proposed initiative measure is to be submitted at the special election.

The title to the act in question reads as follows: "Authorizing and providing for a special election to vote on measures enacted by the regular session of the thirty-seventh legislative assembly of the state of Oregon and submitted to the people; also on amendments to the constitution of the state of Oregon proposed by said legislative assembly, and submitted to the people; also to elect delegates to a constitutional convention and to vote upon a certain proposition directing such delegates; also to vote upon any measures enacted by the regular session of the thirty-seventh legislative assembly of the state of Oregon against which the referendum may be invoked, or which may be initiated by the people; appropriating money to defray the expenses of such special election, and declaring an emergency."

Section 1 provides: "A special election shall be held in the several voting precincts throughout the state of Oregon on Friday, the twenty-first day of July, 1933. At such election all proposed amendments to the constitution of the state of Oregon submitted by the thirty-seventh legislative assembly, regular session, and all measures or enactments passed by said assembly, and which are or may be referred to the people shall be submitted to the people for approval or rejection. The said election shall be held during the same hours on said day and in all respects in the same manner as are other elections as provided by law relating to regular general elections, and the votes cast on such amendments or measures shall be counted, canvassed, returned and declared in the same manner as provided by law for measures voted upon at regular general elections." The precise question is: Did the Legislature in the above act express an intention to submit initiative measures to the legal voters of the state for their approval or rejection at the special election on July 21, 1933? If this court were permitted to look solely to the title of the act to determine the question of legislative intent, there would be no doubt about the matter, since initiative measures are specifically enumerated therein. It is recognized, however, that authorization for the submission of initiative measures must be found in the body of the act. It is conceded that, even though the title indicates an intention of the Legislature to include initiative measures in the legislation to be submitted to the voters at this special election, still the Legislature must actually carry out such intention by expressing the same in the body of the act.

A consideration of the title is important, however, in construing words of doubtful or uncertain import as used in the context of the act. Particularly is this true in jurisdictions such as Oregon, having a constitutional provision requiring the subject-matter of an act to be expressed in the title thereof. 25 R. C. L. 1033. As stated in State v. Robinson, 32 Or. 43, 48 P. 357, 358, and cited with approval in Turnidge v. Thompson, 89 Or. 637, 175 P. 281: "By the constitution of this state, every act is required to have a title expressing the subject-matter. The title, therefore, is necessarily a part of the act, and renders very important aid, if need be, in its construction, or in determining the legislative intent. ***" Since the title is a part of the act, there is no logical reason to exclude it in determining the intention of the Legislature. As stated in Malloy v. Marshall-Wells Hardware Co., on rehearing, 90 Or. 303, 173 P. 267, 175 P. 659, 667, 176 P. 589: "The title of the act is a part of the statute, and can be looked to for the purpose of ascertaining the meaning of the statute." In Miller v. School District, 106 Or. 108, 211 P. 174, 178, it was said: "For the purpose of construction the title of a statute may be considered." The case last cited and that of Turnidge v. Thompson, supra, are listed with numerous authorities from other jurisdictions in an exhaustive note in 37 A. L. R. 951, supporting the proposition that the title is always a proper element for consideration in the construction of a statute. Every statute should be viewed from its four corners. Indeed, as stated by Chief Justice Marshall in United States v. Fisher, 2 Cranch (6 U. S.) 358, 386, 2 L.Ed. 304: "Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived; and in such case the title claims a degree of notice and will have its due share of consideration." One of the cardinal rules of statutory construction is that significance and effect must, if possible, be given to every section, clause, word, or part of an act.

What did the Legislature mean by the following language in section 1 of the act: "At such election all proposed amendments to the constitution of the state of Oregon submitted by the thirty-seventh legislative assembly, regular session, and all measures or enactments passed by said assembly, and which are or may be referred to the people shall be submitted to the people for approval or rejection"? Did the Legislature intend to grant the voters the right to pass judgment only on constitutional amendments proposed by it and on laws which it enacted? Are we to say that the Legislature intended to deny the people the right to submit at this special election a measure which they have seen fit to initiate? It is urged on behalf of the defendant that "measures or enactments" were used synonymously by the Legislature. The words "all measures" in their ordinary acceptation and meaning are broad and comprehensive enough to include not only "enactments" but initiative and referendum measures. In construing article 4, section 1, of the Constitution of Oregon, this court, in Herbring v. Brown, 92 Or. 176, 180 P. 328, held that "measures" as used therein included measures initiated by the people and measures referred to the people. While in the instant case it was not so used, "all measures" could be used to include resolutions, memorials, and even city ordinances. it is well established that "all measures" passed by the Legislature are not subject to the referendum. Thus it may reasonably be contended that the Legislature, in enacting the statute under consideration, used the words "all measures," to include measures initiated by the people.

At any rate, it may well be said that section 1 of the act is reasonably susceptible of different interpretations. However, when the section is read in the light of the plain and explicit wording of the title to the act, we think it must have been the intention of the Legislature to submit initiative measures to the voters for their approval or rejection at the special election therein provided. If we adopt any other construction, it must be said that the Legislature, through inadvertence and mistake, failed to carry out the intention as clearly indicated in the title.

Election laws should be liberally construed to the end that the people may have the opportunity of expressing opinion concerning matters of vital interest to their welfare. Expression, not suppression, tends towards good government. The great constitutional privilege of a citizen to exercise his sovereign right to vote should not be taken away by narrow or technical construction. If the statute is of doubtful construction, we think the doubt should be resolved in favor of free expression of opinion. Othus v. Kozer, 119 Or. 101, 248 P. 146.

It follows that the demurrer to the alternative writ is overruled, and a peremptory writ will issue...