State ex rel. Stadter v. Newbry

• Decision Date: 10 October 1950
• Citation: 222 P.2d 737,189 Or. 691
• Parties: STATE ex rel. STADTER, Dist. Atty. v. NEWBRY, Secretary of State et al.
• Court: Oregon Supreme Court

222 P.2d 737

189 Or. 691

STATE ex rel. STADTER, Dist. Atty. v. NEWBRY, Secretary of State et al.

Supreme Court of Oregon.

October 10, 1950

Alex G. Barry, of Portland, argued the cause and filed a brief for appellant.

Cecil H Quesseth, Asst. Atty. Gen., argued the cause for respondent Earl T. Newbry, Secretary of State. With him on the brief were George Neuner, Atty. Gen., and Robert R. Carney, Asst Atty. Gen.

Henry A Buehner of Portland, argued the cause for respondent Committee for Balanced Apportionment, an unincorporated organization, and another. With him on the brief were Charles K. McColloch and Donald V. McCallum, both of Baker.

Before LUSK, C. J and ROSSMAN, HAY, LATOURETTE, and WARNER, JJ.

HAY, Justice.

Article IV of the constitution of the state of Oregon is the framework of the legislative department of the state government. On February 20, 1950, Committee for Balanced Apportionment, an unincorporated association, filed with the secretary of state an initiative petition for a proposed constitutional amendment to sections 2, 4, and 6 of said article IV. By the proposed amendment, the number of senators is to be increased from thirty to thirty-six, the present method of apportionment and of determining the ratio of senators and representatives to population is to be changed provision is made for reapportionment by the legislative assembly to conform to changes in population as shown from time to time by the federal census, and, in the event that the legislative assembly fails to act, such reapportionment is required to be made by the secretary of state. For the purposes of the present case, a more detailed statement of the proposed amendment is unnecessary. Cf. Dodd v. Neuner, Attorney General, et al., Or., 216 P.2d 670.

This suit was instituted by the state upon the relation of Edward O. Stadter, Jr., district attorney for Marion County, against the Honorable Earl T. Newbry, secretary of state, and the above named sponsors of the proposed constitutional amendment. The complaint alleges that the proposed amendment is legally insufficient, in that, in violation of article XVII of the state constitution, it combines as one amendment what are in fact three amendments, viz., an amendment to increase the membership of the senate, an amendment to change the term of office of some members of the senate, and an amendment to reapportion the legislature. Plaintiff seeks a mandatory injunction restraining the secretary of state from certifying the proposed initiative petition to the several county clerks, and from submitting it to the voters of the state for their approval or rejection at the regular general election to be held on November 7, 1950, or, in the alternative, directing the secretary of state to cause the ballot title to be so prepared that the three allegedly separate amendments may be voted upon separately.

The defendant secretary of state demurred to the complaint on these grounds: (1) The court had no jurisdiction of the subject of the suit; (2) the complaint did not state facts sufficient to constitute a cause of suit. The other defendants demurred on similar grounds. The court sustained both demurrers, and, the plaintiff having declined to plead further, entered its decree dismissing the suit. Plaintiff appeals. He assigns as error the sustaining of the defendants' demurrers, and, specifically, the court's rulings that the proposed initiative petition was legally sufficient and that the court had 'no authority to require the secretary of state to divide the provisions into various forms on the ballot'.

Originally, amendments to the state constitution were effected by being approved, in two successive sessions of the legislative assembly, by a majority vote of both houses, ratified thereafter by a majority vote of the electors of the state. In 1902, under a referendum, the people amended article IV, section 1 of the constitution, by reserving 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 legislative assembly, * * *'.

As published in Deady's General Laws of Oregon, 1845-1864, article XVII contains the following:

'Sec. 2. If two or more amendments shall be submitted in such manner, that the electors shall vote for or against each of such amendments separately; and while an amendment or amendments which shall have been agreed upon by one legislative assembly shall be awaiting the action of a legislative assembly, or of the electors, no additional amendment or amendments shall be proposed.'

The same language appears in Deady and Lane, General Laws of Oregon, 1843-1872; Hill's Annotated Laws of Oregon, Vol. 1, 1887; Hill's Annotated Laws of Oregon, 2nd Ed., Vol. 1, 1892; and Bellinger and Cotton's Annotated Codes and Statutes of Oregon, Vol. 1. By the amendment the portion of § 2, article XVII, italicized above, was made to read as follows:

'* * * When two or more amendments shall be submitted in the manner aforesaid to the voters of this state, at the same election, they shall be so submitted that each amendment shall be voted on separately.'

The 1906 amendment provided further that the votes of the electors upon proposed amendments to the constitution should be canvassed 'severally', whether such amendments should be proposed by the legislative assembly or by initiative petition.

Plaintiff's principal contention upon this appeal is that the initiative petition submits three proposed constitutional amendments in the form of one amendment, so that electors, if they vote thereon at all, will of necessity be obliged to accept or reject all three. This, he insists, is a violation of the constitutional provision last above quoted. The question, if it is actually before us for consideration in the present suit, 'is one not to be lightly resolved.' State ex rel. Johnson v. Farrell, 175 Or. 87, 91, 151 P.2d 636, 638.

Section 81-2105, O.C.L.A., as amended by chapter 85, Oregon Laws 1945, provides, in part, as follows:

'If the secretary of state shall refuse to accept and file any petition for the initiative or for the referendum any citizen may apply, within ten days after such refusal, to the circuit court for a writ of mandamus to compel him to do so. If it shall be decided by the court that such petition is legally sufficient, the secretary of state shall then file it, with a certified copy of the judgment attached thereto, as of the date on which it was originally offered for filing in his office. On a showing that any petition filed is not legally sufficient, the court may enjoin the secretary of state and all other officers from...