State ex rel. Carson v. Kozer

• Decision Date: 31 July 1923
• Citation: 217 P. 827,108 Or. 550
• Parties: STATE EX REL. CARSON, DIST. ATTY., v. KOZER, SECRETARY OF STATE.
• Court: Oregon Supreme Court

217 P. 827

108 Or. 550

STATE EX REL. CARSON, DIST. ATTY., v. KOZER, SECRETARY OF STATE.

Supreme Court of Oregon

July 31, 1923

In Banc.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Proceeding for injunction by the State, on the relation of John H Carson, as District Attorney for Marion County, against Sam A. Kozer, as Secretary of State. A demurrer to the petition was overruled, and a decree restraining defendant on his refusal to plead further, and he appeals. Modified and affirmed.

John H Carson, district attorney for Marion county, Ore., as relator, commenced this proceeding in the circuit court of the state of Oregon for Marion county against Sam A. Kozer as secretary of state of the state of Oregon, for the purpose of enjoining him, as such officer, from causing a ballot title to be printed twice upon the same ballot at the special general state election to be held on November 6, 1923.

The thirty-second regular session of the Legislative Assembly of Oregon enacted chapter 279, General Laws of Oregon 1923 entitled:

"An act, providing for the levying, collecting and paying of an income tax on individuals, partnerships and resident and nonresident corporations residing, incorporated or doing business within and without the state of Oregon, such tax being based upon net income; providing rules and regulations and prescribing penalties and providing for the commutation of taxes by the exemption of certain personal property from general taxation; providing for the calling of a special election in the event this act is referred to the people, and making an appropriation for carrying out this act and for paying expenses of such special election."

The act was approved by the Governor on February 26, 1923, and filed in the office of the secretary of state on that day.

It appears from the record that on or about March 22, 1923, an organization under the name of "Oregon Just Tax League," R. W. Hagood, president, and E. O. Isler secretary, filed with the secretary of state of Oregon a petition for the referendum of that measure to the people of the state of Oregon, for their approval or rejection at the special general election to be held November 6, 1923. In accordance with the direction contained in chapter 176, General Laws of Oregon 1917 (codified as section 4100, Oregon Laws), the secretary of state forthwith transmitted to the Attorney General two copies of that petition, for the purpose of the preparation of a ballot title therefor.

On or about March 22, 1923, another organization, under the name of "State Income Tax Referendum League," Cyril G. Brownell, president, W. M. McConnell, vice president, J. D. M. Crockwell, secretary, filed with the secretary of state a petition for the referendum of the Income Tax Act hereinbefore referred to. The secretary of state forthwith transmitted to the Attorney General two copies of that petition, and on March 26, 1923, the Attorney General provided a ballot title for the petition and returned it to the secretary of state, together with the title so prepared by him. That ballot title reads:

"Referred by the State Income Tax Referendum League, 801 Wilcox Building, Portland, Oregon; Cyril G. Brownell, president, 825 E. Harrison street, Portland, Oregon; W. M. McConnell, vice president, 22 1/2 N. 20th street, Portland, Oregon; J. D. M. Crockwell, secretary, 3108 62d street, S. E., Portland, Oregon. Income Tax Act--Purpose: To provide for the levying, collecting and paying of an income tax on individuals, partnerships and resident and nonresident corporations residing, incorporated, or doing business within and without the state of Oregon, such tax being based upon net income; providing the rules and regulations for computing and reporting such incomes and the tax thereon; and making certain exemptions."

On March 29, 1923, the Attorney General provided a ballot title for the petition first hereinabove mentioned, and filed the same with the secretary of state. That ballot title reads:

"Referred by the Oregon Just Tax League, 920 Northwestern Bank Building, Portland, Oregon; R. W. Hagood, president, 1109 E. Davis street, Portland, Oregon; E. O. Isler, secretary, R. F. D. No. 1, Portland, Oregon. Income Tax Act--Purpose: To provide for the levying, collecting and paying of an income tax on individuals, partnerships and resident and nonresident corporations residing, incorporated or doing business within and without the state of Oregon, such tax being based upon net income; providing the rules and regulations for computing and reporting such incomes and the tax thereon; and making certain exemptions."

On May 1, 1923, a referendum petition (referring Income Tax Act), full and complete as to form, signed by more than 8,437 legal registered voters of the state of Oregon, was filed with the secretary of state by the Oregon Just Tax League. On May 11, 1923, a like petition, for a like purpose, signed by another group of legal registered voters of the state of Oregon numbering more than 8,437, was filed with the secretary of state by the State Income Tax Referendum League. Both petitions comply with the forms of law.

The complaint on file avers, among other things:

That "* * * said secretary of state threatens to, and will, unless restrained, print as one separate measure to be voted upon by the people at said election, the said ballot title set forth in paragraph 5 of this complaint as appearing upon said referendum petition filed by the said Oregon Just Tax League, and will print on the same ballot, as a separate measure to be voted upon by the people of the state of Oregon at said election, the ballot title appearing upon said referendum petition filed by the said State Income Tax Referendum League. That to print both of said ballot titles upon said election ballot is unauthorized, and would be a double submission of the same question and would result in confusion and prevent a fair expression of the people's will on the one measure that is to be submitted to the people as a result of said referendum petition."

A demurrer was interposed to the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of suit. The demurrer was overruled, and, the defendant refusing to plead further, a decree was entered restraining Sam A. Kozer, as secretary of state of the state of Oregon, from printing upon the ballot of the special general election to be held on November 6, 1923, the ballot title prepared and attached to the referendum petition filed by the State Income Tax Referendum League. The defendant appeals, and alleges manifest error, on the face of the record, in overruling the demurrer, in entering the decree restraining the defendant from printing upon the ballot of the special election the ballot title attached to the referendum petition filed by the State Income Tax Referendum League, and enjoining the printing of any ballot title other than that filed by the Oregon Just Tax League.

I. H. Van Winkle, Atty. Gen. (Willis S. Moore, Asst. Atty. Gen., on the brief), for appellant.

W. Lair Thompson, of Portland (McCamant & Thompson, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

In the application of the law to the facts in this cause it is well to keep in mind that this is not a case wherein there is any charge of fraud. The laws under consideration are to be liberally construed in order to effectuate their purpose.

In State ex rel. Case v. Superior Court, 81 Wash. 623, 632, 143 P. 461, 463 (Ann. Cas. 1916B, 838), the Supreme Court of Washington said, relating to the construction of initiative and referendum election laws:

"* * * It is worthy of note, and that we keep in mind as we proceed, that these initiative and referendum provisions of our Constitution are all embodied in one section, which contains these words: 'This section is self-executing, but legislation may be enacted especially to facilitate its operation.' * * * Thus there is strongly suggested, in the language of the Constitution and this law, a required liberal construction, to the end that this constitutional right of the people may be facilitated, and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right."

This language was approved in the case of State ex rel. Howell, Secretary of State, v. Superior Court for Thurston County et al., 97 Wash. 569, 166 P. 1126, 1129. The only purpose of this litigation is to require that an official ballot be supplied to the legal voters of this state at the special general election on November 6, 1923, which shall contain the question submitted in a plain, clear, and concise form, in accordance with law.

The question for us to determine is whether the measure to be submitted to the legal voters for their approval shall have one or two ballot titles printed upon the official ballot. Organizations representing two groups of petitioners, with like intentions, have filed like petitions containing signatures of legal voters, demanding the referendum of the same measure. The petitions comply with the forms of law. Each group has filed the signatures of sufficient legal voters to refer the measure involved. Each petitioner expresses the same demand, in like language. Each petition seeks the same result, i. e., the referendum of the Income Tax Act to the people of the state for their approval.

Article 4, § 28, of our Constitution, reads, in part:

"No act shall take effect until ninety days from the end of the session at which the same shall have been passed except in case of emergency. * * *"

Under article...