State ex rel. Swan v. Kozer

• Decision Date: 06 October 1925
• Parties: STATE EX REL. SWAN v. KOZER, SECRETARY OF STATE.
• Court: Oregon Supreme Court

239 P. 805

115 Or. 638

STATE EX REL. SWAN v. KOZER, SECRETARY OF STATE.

Supreme Court of Oregon

October 6, 1925

In Banc.

Original proceeding in mandamus by the State of Oregon, on the relation of L. L. Swan, against Sam A. Kozer, as Secretary of State. On demurrer to alternative writ. Demurrer sustained.

W. E. Keyes and John H. McNary, both of Salem, for petitioner.

I. H Van Winkle, Atty. Gen., and Willis S. Moore, Asst. Atty Gen., for defendant.

BROWN J.

The secretary of state can be required to act only in compliance with an existing law.

House Bill No. 517 was a bill for an act authorizing a special election for the purpose of submitting to the people any measures which might be referred to them. It passed both houses of the Legislative Assembly and was thereafter transmitted to the Governor, who indorsed thereon his disapproval and filed the same with the secretary of state together with the reasons for his veto. The secretary assumed the position that the proposed statute was ineffective because of its disapproval by the Governor, hence he refused to comply with its provisions. This court issued an alternative writ of mandamus, directing the secretary of state to perform the duties set forth in the proposed bill or to show cause for his failure so to do. The defendant filed a demurrer to the writ.

The relator challenges the right of the Governor to veto the proposed measure. He says, in effect, that the measure is but an order for a special election provided by section 1, article 4, Oregon Constitution, for the purpose of submitting to the people measures referred to them. This calls for an examination of the bill, to ascertain whether it is, in truth, a bill for a law, or a mere direction to the secretary of state to call an election.

In the first instance, let us consider the necessity of a law for the purpose of holding an election. It is an elementary principle that there can be no valid election except in pursuance of constitutional or statutory authority and regulation. That proposition is well sustained by our own authorities. In the case of State ex rel. Everding v. Simon, 20 Or. 365, 371, 26 P. 170, 172, this court, speaking through Mr. Justice Bean, said:

"An election in order to be valid must be held in pursuance of the provisions of some law authorizing it, in force at the time. There is no inherent reserved power in the people to hold an election. People v. Bull, 46 N.Y. 57, 7 Am. Rep. 302; State [ex rel. McHenry] v. Jenkins, 43 Mo. 261; People ex rel. [ McDougal] v. Johnston, 6 Cal. 673; Matthews v. Board, 34 Kan. 606, 9 P. 765; State ex rel. [ Williams] v. Sims, 18 S.C. 460."

That excerpt is quoted in Andrews v. Neil, 61 Or. 471, 120 P. 383, 123 P. 32. The principle is again followed in an opinion by this court prepared by Mr. Justice Burnett in Equi v. Olcott, 66 Or. 213, 133 P. 775. Again, in Barber v. Johnson, 86 Or. 390, 167 P. 800, 1183, Mr. Justice McCamant declared "that an election held without authority of law is ineffectual for any purpose," citing in support thereof Andrews v. Neil, supra, and Equi v. Olcott, supra. See, also, Carriker v. Lake County, 89 Or. 240, 171 P. 407, 173 P. 573; Paine on Elections, § 285; 9 R. C. L. § 32, Elections; 20 C.J. p. 95, § 76.

"An election held without affirmative constitutional or statutory authority will be invalid notwithstanding a unanimous vote may be cast in favor of the particular question submitted. * * *

"There is no inherent reserved power in the people to hold elections. They are therefore of no effect, unless held by virtue of some law in force at the time they are held. * * * A mere naked authority to hold an election is without effect if there is no affirmative legislation providing the necessary machinery for holding the same." 10 Am. & Eng. Encyc. of Law (2d Ed.) pp. 562, 563.

The Thirty-Third Legislative Assembly of the state of Oregon, for the purpose of providing for a valid special general election throughout the state, passed the following measure:

"A bill for an act authorizing a special election to vote on all measures enacted by the Thirty-Third Legislative Assembly of the state of Oregon on which a referendum may be invoked and which levy any tax or license fee upon the transaction of any business, and on measures which by their terms provide that they shall be submitted to the people at the next general or special election, making an appropriation for the purpose of defraying the expenses of such election, and declaring an emergency.

"Be it enacted by the people of the state of Oregon:

"Section 1. There shall be held a special election in the several voting precincts of this state on the second Tuesday in September, 1925. All measures passed by the Thirty-Third Legislative Assembly of the state of Oregon which levy any tax or license fee upon the transaction of any business upon which the referendum may be invoked by petition of the people, shall be submitted to the people for their approval or rejection at such special election; provided, however, that if the referendum shall not be invoked upon any such measure, then the special election authorized by this act shall not be held. If the referendum be invoked on said measures, or any of said measures, which levy any tax or license fee upon the transaction of any business, then, in that event, such other measures as were submitted by the Thirty-Third Legislative Assembly of the state of Oregon to be voted upon at the next general or special election, shall be submitted to the people for their approval or rejection at said special election except Senate Bill 235 of the Thirty-Third Legislative Assembly. The polls shall open and close at the same time as now provided by law for general elections in this state and the vote cast on such laws or measures shall be counted, canvassed, returned and declared in the same manner as provided by law for all laws or measures submitted to the people at general elections.

"Section 2. On or before July 1, 1925, any person or association of persons may file with the secretary of state any argument opposing or favoring any or all of said measures to be voted on by the people at such special election, on the same terms and conditions as are provided therefor by law for the filing of such arguments or statements on any measures referred to the people at a regular biennial election.

"Section 3. Immediately after the time shall have expired for filing arguments as is provided in section 2 hereof, the secretary of state shall cause to be printed in pamphlet form in the manner now provided by law, a true copy of the title and text of each measure to be submitted at such election, together with any such arguments so filed, and shall at least eight days before the date of said election mail to each registered voter of the state a copy of such pamphlet.

"Section 4. Not later than July 6, 1925, the secretary of state shall mail to the county clerk of each county, copies of such measures upon which the referendum may be invoked and which are to be referred to the people by the terms of this law, and the mailing of such copy of such measure or measures shall constitute notice to each such clerk of the provisions hereof, and shall be in lieu of any other notice required by law. Said county clerk shall forthwith proceed to do all of the things required by law in order to provide for the holding of the election herein prescribed. Notice of such election shall be given according to the law governing special elections.

"Section 5. Not later than July 15, 1925, the secretary of state shall furnish to the county clerks of the several counties the certificate containing the information, direction and material affecting measures and amendments to be submitted to said election required by section 4101, Oregon Laws.

"Section 6. In order to defray all expense incident to carrying the provisions of this act into effect, there is hereby appropriated out of the moneys in the general fund in the state treasury not otherwise appropriated, the sum of fifteen thousand dollars ($15,000), or so much thereof as may be necessary, and the secretary of state is hereby authorized and directed to audit and pay all duly certified claims therefor in the same manner as other claims against the state are audited and paid.

"Section 7. It is hereby adjudged and declared that existing conditions are such that this act is necessary for the immediate preservation of the public peace, health and safety; and, owing to the urgent necessity of maintaining

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