State ex rel. Hunzicker v. Pulliam

• Decision Date: 19 June 1934
• Docket Number: 24879.
• Citation: 37 P.2d 417,168 Okla. 632,96 A.L.R. 1294,1934 OK 371
• Parties: STATE ex rel. HUNZICKER v. PULLIAM, Acting City Clerk.
• Court: Oklahoma Supreme Court

37 P.2d 417

168 Okla. 632, 96 A.L.R. 1294, 1934 OK 371

STATE ex rel. HUNZICKER v. PULLIAM, Acting City Clerk.

No. 24879.

Supreme Court of Oklahoma

June 19, 1934

Rehearing Denied Sept. 11, 1934.

Instrument is "filed" for record when it is deposited in proper office with a person in charge thereof, with directions to record it; act of leaving or depositing paper in proper office constitutes "filing" of it within statute providing therefor. There can be no "filing" of a paper in a legal sense except by its delivery to an official whose duty it is to file papers and who is required to keep and maintain an office or other public place for their deposit, and the paper must either be delivered personally to such officer with the intent that the same shall be filed by him or delivered at the place where the same should be filed.

Syllabus by the Court.

1. Under section 572, O. S. 1931, any person being an elected or appointed public official shall become amenable, in the same manner and to the same extent to any mandamus as though originally obtained against him; and a revivor of such action in which such order was obtained exists against any person in his official capacity to the extent of any mandamus obtained against his predecessor in his official capacity, and shall be binding on him, and he shall be as amenable to such writ as though obtained against him.

2. Section 22, c. 1, O. S. 1931, relative to the computation of time, was intended to establish a uniform rule, applicable to the construction of statutes as well as to matters of practice.

3. Under section 5888, O. S. 1931, the referendum petition shall be filed with the chief executive officer of the city within thirty days after the passage of such ordinance or resolution.

4. When the last day within which a deed is to be performed, or is permitted to be done, falls on Sunday, that day is excluded and the act may be done on the succeeding day.

5. Under section 5890, O. S. 1931, only the initiative or referendum measure proposed is required to be filed with the chief clerk of the city.

6. The act of leaving or depositing the referendum petition in the proper office with a person in charge thereof constitutes a filing of it; the file mark being merely evidence of filing and not an essential element.

7. Under section 5889, O. S. 1931, an emergency ordinance of a municipal legislature shall state in a separate section the reasons why it is necessary that it should become immediately operative, and the question of emergency shall be ruled upon separately and be approved by the affirmative vote of three-fourths of all the members elected to the city council taken by ayes and noes and the whole measure be approved by the executive officer.

8. Same. No emergency ordinance shall be passed by a municipal legislative body except measures necessary for the immediate preservation of public peace, health, or safety.

9. In order to enable a municipal legislative body to reconsider a vote passing an ordinance, it must have control and possession of it. If it has performed its office upon the bill and it has gone from its physical possession and control, it cannot reconsider.

10. Zoning ordinances are police power enactments designed for promotion and perpetuation of people's moral and material welfare which cities are authorized to enact by virtue of the provisions in the Constitution and laws of this state.

11. Legislative power of municipality resides in people thereof who simply withdrew from legislative body, and reserved to themselves right to exercise part of their inherent legislative power by enactment of initiative and referendum laws, in accordance with the provisions of constitution legislative enactments, and city charter.

12. The mere fact that an ordinance will be of great benefit is not an urgent reason for its going into effect immediately, as every valid law or ordinance is presumed to be passed because of its prospective benefit to community.

13. Inhabitants of city of Oklahoma City have right through their charter and section 5889, O. S. 1931, to require more explicit statement in ordinance in matter of declaring an emergency than the Constitution requires of the Legislature with regard to emergency measures.

14. Under section 24, article 2, of the Charter of Oklahoma City, no ordinance or section thereof shall be amended or repealed except by ordinance adopted in the manner provided in its charter.

Original proceeding in mandamus by the State, on the relation of F. L. Hunzicker, against James Pulliam, Acting City Clerk of Oklahoma City. After the defendant vacated the office and his successor was appointed and qualified, the proceeding, on motion to dismiss, was revived in the name of the successor in office.

Writ of mandamus granted in accordance with opinion.

Keaton, Wells, Johnston & Barnes and Walter Marlin, all of Oklahoma City, for plaintiffs.

Harlan T. Deupree, Municipal Counselor, Ledbetter, Stuart, Bell & Ledbetter, Floyd C. Dooley, Stanley B. Catlett, and Everest, McKenzie, Halley & Gibbens, all of Oklahoma City, for defendant.

SWINDALL Justice.

On July 25, 1933, the plaintiff filed in this court an original proceeding for writ of mandamus to compel the defendant, as acting city clerk of Oklahoma City, state of Oklahoma, to act upon referendum petition No. 5, presented by the alleged requisite number of qualified electors of Oklahoma City Okl., praying for the submission of Ordinance No. 4475 of Oklahoma City, Okl., in the manner required by law, and determine the sufficiency thereof, and, in the event defendant find the same sufficient, immediately notify the chief executive officer of Oklahoma City of such finding in order that he may call an election and submit to the qualified electors of the city of Oklahoma City said Ordinance No. 4475 for adoption or rejection. The court took jurisdiction and issued an alternative writ. On July 28, 1933, the plaintiff filed an amendment to his petition, and on August 9, 1933, defendant filed his return to the alternative writ of mandamus. The petition and amendment thereto, and return to the writ, show that on the 23d day of May, 1933, there was introduced and read in open meeting of the council of the city of Oklahoma City Ordinance No. 4475 entitled: "An ordinance extending the limits of the U-7 or oil and gas district by adding subdivision 'O' to Section 3 of Ordinance No. 3943 providing for certain limitations and regulations therein as to non-drilling territory and participation therein; providing that invalidity of parts shall not affect validity of remainder; and declaring an emergency." On June 9, 1933, the ordinance was voted upon by the city council and failed to secure the necessary vote to attach the emergency clause, and was passed by eliminating the clause in the title "declaring an emergency," and eliminating the fourth section thereof, same being the emergency section, and in this form said ordinance was passed by a majority of the council and signed by the mayor of Oklahoma City and published in the Daily Record of June 9, 10, and 12, 1933. On June 12, 1933, certain citizens and legal voters of Oklahoma City filed their objection to said ordinance and notified the mayor in writing that they would circulate and file a proper referendum petition demanding that an election be held in Oklahoma City wherein and whereat there should be referred to the legal voters of said city of Oklahoma City the question of whether or not a certain ordinance passed by the common council of Oklahoma City and approved by the mayor on the 9th day of June, 1933, then describing in said notice the ordinance by number and title. On June 13, 1933, at a meeting of the common council of Oklahoma City, Mr. Scott, one of the members of the council, dictated into the record of its proceedings of that date a statement to the effect that, when he voted against the emergency section of the ordinance, he was under the impression that an election could be held in the near future; that, since he voted, his attention had been called to the provisions of the city charter and the Constitution of the state, which provide that, when a petition demands a referendum vote on any ordinance or any other act, other than granting extension or renewal of a franchise, the chief executive officer shall submit the ordinance or act to the qualified electors of the municipal corporation at the next succeeding general municipal election, and, if at said election the majority of the electors voting thereon shall not vote for the same, it shall thereupon stand repealed; that under his interpretation of these provisions a vote could not be taken on said proposition until April, 1935, and the presentation of such initiative petition would have an effect of delay; that, by the time an election could be held, the oil would be drained from under the city property to such an extent that it would have no lease value; that he was in favor of the extension and felt that the city was entitled to the revenue, both bonus and royalty, from the wells that could be drilled on its property; that he was of the opinion that, if such delay be permitted, the city would lose many thousands of dollars on account of the drainage of set-off wells; and that he was not willing that the city be deprived of this revenue. He thereupon moved to reconsider the vote on the emergency clause of said ordinance. The motion was seconded by Mr. Jacoby, a member of the council. Roll was called upon the motion to reconsider the emergency clause, and said motion to reconsider was adopted by roll call vote of six votes for the adoption and two votes against it. Thereupon it was moved by Mr. Estabrook, a member of the council, and seconded by Mr. Donart, another member,...