State ex rel. Carson v. Kozer

217 P. 827, 108 Or. 550, 1923 Ore. LEXIS 71

• Court: Oregon Supreme Court
• Decided: July 31, 1923
• Status: Published

Opinion

BROWN, J.

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 Pac. 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 ease of Slate ex rel. Howell, Secretary of State, v. Superior Court of Thurston County et al., 97 Wash. 569 (166 Pac. 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 IY, Section 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 4, Section 1, a referendum “may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety) * * . Beferendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded.”

Article IX, Sec+ion 1-a, Constitution, provides:

“The legislative assembly shall not declare an emergency in any act regulating taxation or exemption.”

At the expiration of the ninety days’ constitutional bar against the effectiveness of the Income Tax Act, we find the measure barred from becoming a law by petitioners who are legal voters of the state, under their power of referendum reserved by the Constitution.

The constitutional provision designated Section 1, Article IV, Constitution of Oregon, as amended in 1902, is self-executing: Stevens v. Benson, 50 Or. 269 (91 Pac. 577). This constitutional provision reads:

“The Secretary of State * * shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor.”

In compliance with our Constitution, the legislative assembly of the twenty-second regular session enacted a law entitled:

“An act making effective the initiative and referendum provisions of Section 1 of Article IV of the Constitution of the state of Oregon, and regulating-elections thereunder, and providing penalties for violations of provisions of this act.” Gen. Laws Oregon, 1903, p. 244.

Section 5 of that act provided that immediately upon the filing with the Secretary of State, within the time required by the Constitution, of a referendum petition signed by the number of legal voters designated by the Constitution, that officer should immediately notify the Governor, in writing, of such fact — ■

‘ ‘ and the Governor shall forthwith issue his proclamation, announcing that such petition has been filed, with a brief statement of its tenor and effect. Said proclamation shall be published four times in four consecutive weeks * * in each judicial district of * * Oregon.”

It was not intended that the Governor should issue another proclamation upon the filing of an additional complete petition for the referendum of the same measure. A double referendum of a measure was never in the legislative mind.

Section 6 of the act provided that the Secretary of State shall furnish the various county clerks

“his certified copy of the titles and numbers of the various measures to be voted upon * * and he shall use for each measure a title designated for that purpose by the legislative assembly, committee, or organization * * filing with him the act, constitutional amendment, or petition for the initiative or the referendum. Provided that such title shall in no case exceed twenty words.”

Section 4101, L. O. L., so far as it applies to the duty of the Secretary of State in relation to the designation and numbering of measures, remains practically the same in the present law as in the statute of 1903.

By the twenty-fourth session of the legislative assembly, another act was passed—

“to provide for carrying into effect the initiative and referendum powers reserved by the people in Section 1 and Section 1-a of Article IV of the Constitution of the State of Oregon * * .” Gen. Laws Oregon, 1907, Chap. 226, p. 398.

This latter act repealed the former, hut many of the provisions of the repealed act were copied into the 1907 law and are yet in force.

Section 5 of the act of 1907 provided, among other things:

“When any measure shall be filed with the Secretary of State to be referred to the people of the state * * , the Secretary of State -shall forthwith transmit to the Attorney General of the state a copy thereof, and within ten days thereafter the Attorney General shall provide and return to the Secretary of State a ballot title for said measure. The ballot title may be distinct from the legislative title of the measure, and shall express, in not exceeding one hundred words, the purpose of the measure. The ballot title shall be printed with the numbers of the measure, on the official ballot.”

There is no suggestion in the law for a double ballot title. There shall be one printing of the numbers of the measure, and one printing of the ballot title.

Said Section 5, as later amended, in part, reads:

“The ballot title shall contain: (1) The name or names of the person or persons, organization or organizations under whose authority the measure is to be initiated or referred. (2) A distinctive short title in not exceeding ten words by which the measure is commonly referred to or spoken of and which shall be printed in the. foot margin of each signature sheet of the petition. (3) A general title which may be distinct from the legislative title of the measure, expressing in not more than one hundred words the purpose of the measure.” Gen. Laws Or. 1917, Chap. 176, p. 228 (codified as § 4100., Or. L.).

The purpose of the distinctive short title is to help identify the measure. It is the popular name or designation of the measure. The general title informs thé voter of the “purpose of the measure.” The names of the sponsors of a referendum are included in the ballot title in order to fix responsibility for the referring of the measure.

Under the provisions of Section 4101, Or. L., the duty of the Secretary of State relative to certifying copies of ballot titles and numbers of the measure or measures to be voted upon has been continued from the Act of 1903, “and he shall use for each measure the ballot title designated in the manner herein provided.”

It is a rule of statutory construction often applied by this court, that the repeal and simultaneous re-enactment of the same statutory provisions is not to be considered as a repeal, but that it should be interpreted as a continuation thereof.

“ * * The affirmative of the first measure shall be numbered 300, and the negative 301, in numerals, and the succeeding measures shall be numbered consecutively 302, 303, 304, 305, and so on, at each election.” Section 4101, Or. L.

Beading the provisions of the law relative to direct legislation elections, it is apparent that it was never intended by the legislative power that a measure should’ go before the people with a plurality of titles. The ballot title, when printed once, is clear and informative, but a double printing may confuse and is not authorized by statute.

At Section 4100, Oregon Laws, we have:

- “The ballot title shall be printed with the numbers of the measure on the official ballot.”

Again, at Section 4101, Oregon Laws, we find:

“Such ballot title shall not resemble, so far as to probably create confusion, any such title previously filed for any measure to be submitted at that election.”

Again:

“Not later than the 19th day before any general election, nor later than thirty days before any special election, * * the Secretary of State shall cause to be printed, in pamphlet form, a true copy of the title and text of each measure to be submitted, with the number and form in which the ballot title thereof will be printed on the' official ballot.” Section 4103, Or. L.

It is suggested in one of the briefs that the following language supports the contention of the defendant:

“The Secretary of State shall print in the official ballot the titles thus certified to him.”

The ballot titles certified to the Secretary of State are the ones that are certified by the Circuit Court upon appeal, and the quoted excerpt refers to ballot titles so certified.

It is provided that—

_ “Any person who is dissatisfied with the ballot title, or the short title, provided by the Attorney General for any measure, may appeal from his decision to the Circuit Court. * * Said Circuit Court shall thereupon examine said measure, hear arguments, and in its decision thereon certify to the Secretary of State a ballot title, and a short title, for the measure, in accord with the intent of this section. The decision of the Circuit Court shall be final. The Secretary of State shall print on the official ballot the titles thus certified to him.” Section 4100, Or. L.

Section 4003, Oregon Laws, provides:

“The name of each person nominated shall be printed upon the ballot in but one place.”

By analogy, that provision applies to the name or title of the measure appearing upon the official ballot. It should be printed but once.. This is true, whether we consider the two groups of petitioners as separate petitioners or treat the petitions as one.

The popular name of the measure is: “Income Tax Act.” That designation aids and assists the voter in identifying the measure, and, as we have seen, is common to each petition. We have also pointed out that the “g’eneral title” provided for the instruction of the voter as to the purpose of the measure is common to each petition. When these essentials of the ballot title are printed upon the official ballot once, the “distinctive short title” and the “general title” of each group of petitioners appear on the ballot. Neither group has a right to insist that these titles shall be printed twice. They must be printed once. It is a direction of the statute that the names of persons or organizations under whose authority the measure is, referred constitute a part of the ballot title. Therefore, the ballot title consists of the “distinctive short title,” the “general title,” and the names of the persons or organizations under whose ■authority the measure is referred.

The whole course of legislation in the matter of providing ballot titles shows the intention of the lawmaker to afford to the voter a clear understanding of the subject matter of the measure submitted; and legislative intent, when discerned from the law, as written, is the law.

It was urged at the hearing that the printing of the names of the sponsors of the referendum is not mandatory. With this contention the writer agrees, because the people are to vote on the measure, and not on the organizations. The names of the promoters on the ballot relate to form.

The following is a concise definition of mandatory and directory statutes:

“As to mandatory and directory statutes, it is said that when the provision of a statute is the essence of the thing required to be done, it is mandatory; otherwise, when it relates to form and manner; and where an act is incident, or after jurisdiction acquired, it is directory merely.” 2 Bouvier’s Law Dictionary, p. 1032.

An established general rule relating to the conduct of elections is as follows:

“Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal or will change or render doubtful the result. * * Where the terms of the statute are absolute, explicit and peremptory, no discretion is given; * * but this rule must be considered in connection with another rule, that a statute prescribing the duties of election officers may be held either mandatory or directory, according to the time and manner in which it is questioned. Before election it is mandatory if direct proceedings for its enforcement are brought. But after election it would be held directory, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or the ascertainment of the result, or unless the provisions affect an essential element of the election, or it is expressly declared by statute that the particular act is essential to the validity of the election, or that its omission will render it void.” 20 C. J., p. 181, § 223.

In the case at bar, no election has been held, and it is well for the Secretary of State to follow the- law, as written, regardless of its directory or mandatory character.

The plaintiff is entitled to relief substantially as prayed for in his alternative prayer; that is to say, Sam A. Kozer, as Secretary of State of the State of Oregon, is enjoined from certifying two ballot •titles to the several county clerks of the State of Oregon submitting to the legal voters of this state the measure known as the “Income Tax Act,” designated Chapter 279, General Laws of Oregon, 1923, and, as such officer, is directed to certify to such county clerks for the referring of that measure, a ballot title, in substance, as follows:

“Proposed Law — Referred to the People by Referendum Petition.

“Referred by Oregon Just Tax League: By R. "W. Hagood, President. By E. O. Isler, Secretary.

“And by State Income Tax Referendum League: By Cyril G. Brownell, President. By W. M. McConnell, Vice-President. By J. D. M. Crockwell, Secretary.

“Short Title: 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.

“300 Yes. Vote Yes or No.”

“301 No.

The section of the statute providing for the framing of ballot titles does not direct that the addresses of the sponsors of the referendum be given.

Neither party shall recover costs in this court.

Modified.

MoBeide, C. J., not sitting.