State Ex Rel. Swirczynski v. Key

1926 OK 577, 247 P. 656, 121 Okla. 64, 1926 Okla. LEXIS 58

• Court: Supreme Court of Oklahoma
• Decided: June 22, 1926
• Docket: 17451
• Status: Published

Opinions

HARRISON, J.

This -was a proceeding by plaintiff in error for a writ of mandamus to compel the county election board of Oklahoma county to receive plaintiff in error’s application to file as a candidate for the Democratic nomination for sheriff of said county, and to place his name upon the ticket to be voted upon at the forthcoming primary election, and involves the validity of chapter 121, Acts of the Legis-. lature, Special Session 1924, generally known as the “Pour Year Term Act,’’ because it fixes the terms of certain county officers at four years.

Plaintiff in error presented his application to the county election board for permission to file' as a candidate for nomination, and to have his name printed upon the ticket to be voted upon at the forthcoming primary. The election board refused to permit such filing, for the reason that, under the provisions of said chapcer 121. no ticket will be printed for the nomination of a candidate for sheriff for this year, 1926, nor any election held for such purpose, and thereupon plaintiff in error applied to the district court for a writ of mandamus, contending that said chapter 121 is unconstitutional and void, and asking for a writ to compel said board to receive his application.

Upon final hearing, the trial judge denied the peremptory writ and ordered the proceeding dismissed, thereby sustaining the validity of the statute, and plaintiff below has appealed to this court for a reversal of such judgment, contending that such judgment is erroneous because said statute is unconstitutional and void for the reason that the subject of the measure legislated upon in said chapter 121 was not recommended by the Governor to the special session of the Legislature, as required by section 7, art. 6, of the Constitution, nor as required by section 9 of said article, but was passed during said special session in violation of both of sáid sections.

Section 7, supra, is as follows:

“The Governor shall have power to convoke the Legislature, or the Senate only, on extraordinary occasions. At extraordinary sessions, no subject shall be acted upon, except such as the Governor may recommend for .consideration.”

Section 9 is as follows:

“At every session of the Legislature, and immediately upon its organization, the Governor shall communicate by message, delivered to a joint session of the two Houses, upon the condition of the state; and shall recommend such matters to the Legislature as he shall judge expedient. He shall also transmit a* copy, to each House, of the full report of each state officer and state commission. He shall communicate, from time to time, such matters as he ma/y elect or the Legislature may require.”

The subject legislated upon was submitted by the Governor in a message which contains the following:

“To the Ninth Legislature of the State of Oklahoma in Special Session Assembled:

“At the request of certain members of your honorable body, I am submitting for your consideration, the following additional legislative subjects, to wit: * * *

“2. Fixing the terms of office of the various county officials in the several councies of the state. * * *”

The title of the act in question is:

“An Act amending section 5735 of chapter 35, article 6, Compiled Oklahoma Statutes, Annotated, 1921, fixing and lengthening the terms of office of the county attorney, court clerk, county clerk, comity surveyor, superintendent of public instructy public weigher, county' assessor, and three county commissioners, in every county tion, county sheriff, county treasurer, coun-in the state of Oklahoma, providing that such officers shall be elected at the general election to be held in November, 1924, and thereafter as outlined in paragraphs A, B, and C. in the body of the bill as given below, and declaring an emergency.”

The act itself provides that at the general election, November, 1924, and each four years thereafter, there shall be elected a county attorney, court clerk, county sheriff, county treasurer, and county superintendent, all of whom shall hold office for a term of four years, each of whose terms, except the county superintendent and county treasurer, to begin on the first Monday in .January, following their election, the term of the county superintendent and county treasurer to begin on the first Monday in July, following their election.

The specific objections urged by plaintiff in error are that the above message of the Governor was not addressed to a joint session of both Houses; that it was not sent to the Legislature immediately upon its organization ; that it did not recommend such subject for favorable consideration or passage : that it was delivered after the Legislature h-ad been in session for two weeks; that it shows on its face that the idea of necessity for legislation upon the subject did not originate in the mind of the Governor, but originated with the Legislature itself; that it was not sufficiently definite and certain nor broad enough to give the special session authority to pass the act in question; that it did not recommend favorable consideration and legislation upon such measure; that it used the words “I am submitting for your consideration,” instead of using the exact words in section 7 of the Constitution, “recommend for consideration.”

As to the first two contentions, viz.: That the message was not delivered to a joint session and not sent immediately upon the Legislature’s organization, we find no basis for such contention in the provisions of either of the above sections of the Constitution.

Section 7, supra, has reference exclusively to extraordinary sessions, and does not say when the Governor’s message shall be delivered, nor to whom it shall be addressed ; it merely says:

“No subject shall be acted upon, except such as the Governor may recommend for consideration.”

Section 9 provides that:

“At every session of the Legislature and immediately upon its organization, the Governor shall communicate by message delivered to a joint session of the two Houses upon the condition of the sta.te.”

It does not say that immediately upon its organization a message of any other character shall be delivered to the joint session of the two Houses, excepc the message upon the condition of the state.

The next clause, which of itself is a complete sentence, says, “shall recommend such matters to the Legislature as he shall judge expedient.” This does not require such matters as he may judge expedient to .be addressed to a joint session of the two Houses; it merely requires that such matters be recommended to the Legislature. This is exactly what the Governor did. His message, as will be seen, is addressed

“To the Ninth Legislature of the State of Oklahoma in Special Session Assembled.”

This, we think, is a full compliance with the requirements of the Constitution.

The, above quoted provision of section 9 does not require that such matters as the Governor may judge expedient shall be addressed to a joint session, but says, “shall be recommended to the Legislature.”

The next sentence, to wit:

“He shall also transmit a copy to each House of the full report of each state officer and state commission.”

This sentence, this provision, does not require that the message be transmitted to a joint session, but that a copy shall be transmitted to each House.

The natural presumption would be that the message in this case being addressed, as it was, “To the Ninth Legislature of the State of Oklahoma, in Special Session Assembled,” not to either House in particular, but to the Legislature itself, the reasonable presumption, in the absence of any evidence or contention to the contrary, would be that a copy was transmitted to each House. Furthermore, the last sentence in said section 9, as may be seen, is:

“He shall communicate, from time to time, such matters as he may elect or the Legislature may require.”

This independent sentence in section 9 answers the contention that all messages must be sent immediately after its organization, and the contention that all subjects for legislation must originate with the Governor. The language of the last sentence in said section 9 is plain; it says “he shall com-miunicate, from time to time,” not only such matters as he may elect, but also such matters as the Legislature may require.

The provision gives the Governor express authority to communicate from time to time, and is not confined to the time immediate ly upon the organization of the Legislature, but from time to time during the session he may communicate such matters as may occur to his mind, and shall also communicate such matters as the Legislature may require. It might occur to the Governor that certain matters should be considered by the Legislature; in such case he is authorized to communicate his ideas to the Legislature. On the other hand, it might occur to the Legislature itself that certain subjects should be legislated upon; in such case, when required by the Legislature, the Constitution says plainly, “He shall communicate * * * such matters as the Legislature may require.” The message herein says on its face that the subject herein, was submitted' in answer to the requirements of the Legislature ; it is addressed to the Legislature as a whole, and says, “At the request of- certain members of your honorable body,” that is, to the Legislature as a whole, “I am submitting for your consideration the following additional legislative subjects”; then enumerating the subjects thereby submitted.

Thus the Constitution itself answers the contentions that the message was not addressed to a joint session; that it was not sent immediately upon its organization; that it was delivered after the Legislature had been in session; and that it shows on its face that the idea did not originate with the Governor. Hence, these contentions cannot be sustained.

Likewise the contention that the message does not recommend for favorable consideration is without merit, for the Constitution does not say, “recommend for favorable consideration” ; it says merely:

“At extraordinary sessions, no subject shall be acted upon, except such as the Governor may recommend for consideration.” Section 7.

It does not say that the Governor must recommend for favorable consideration, in order to give the Legislature authority to act, nor does it imply that the Governor must urge favorable consideration in order to give the Legislature authority to act. When the Governor, by official message, by official communication, recommends a subject for consideration, for attention, for thought, for examination, for deliberation upon, the message is sufficient under the Constitution to give the Legislature -authority to legislate upon the subject thus submitted.

The contention that the message was not sufficiently definite, nor -broad enough to give the special session authority to pass the act in question, is too lacking in merit to warrant this court in striking down an act of the Legislature.

The message, among other subjects named, also names the subject of fixing the terms of various county officials, and officials are necessarily county officers, in the several counties of the state. The subject appears to have been discussed back and forth, between the Legislature and the Governor, to the extent that the Legislature knew what it was asking of the Governor and the Governor knew what the Legislature desired, and under the universal rule that every reasonable presumption will be indulged in favor of the validity of a statute, we cannot feel justified. in striking down this statute because ttó Governor’s message was not as broad as plaintiff seems to think it should have been.

As to the repeated contention that the message does not recommend favorable consideration, and therefore the statute should be stricken, it may be said that the Governor has no power to force the Legislature to pass any measure. To attempt to do so would constitute an unauthorized interference with legislative powers in violation of article 4 of the Constitution, which distributes the powers of state government to three separate and distinct departments, and expressly says, “Neither shall exercise the powers properly belonging to either of the others.”

In view o'f the above provision on distribution of powers, and in view of the language of sections 7 and 9, supra, we cannot say that the Governor must recommend favorable consideration of a measure submitted to the Legislature in order to give it authority to legislate, and certainly we do not feel justified in striking down the statute Jn question merely because the Govern- or did not insist upon the passage of the act.

That the Governor must recommend a measure for consideration, in order to give a special session of the Legislature authority to act, cannot be denied, because the Constitution says:

“No subject shall be acted upon, except such as the Governor may recommend for consideration” (Section 7).

—but it does not sáy that he must recommend it for favorable consideration and insist upon its passage, in order to give the Legislature authority to pass it.

Contention is also made that the statute should be declared void because The Governor in his message used the words, “I am submitting for your consideration,” in stead of the exact words of the Constitution, “I recommend for consideration.”

We do not feel authorized and could not feel justified in striking down, not only the statute in question, but possibly a number of other acts upon subjects which were submitted with the same message, because of the difference in meaning between the words “submitting for your consideration” and “recommend for consideration.” To sustain the contention of plaintiff in error would be to strike down this statute, as well as several other statutes, because of the difference in meaning of the two words, “submitting” for your consideration, and “recommend” fci- consideration. The thoroughly established, sound, and universal rule of indulgence in f&vor of the validity of a statute would not permit us to sustain such contention.

The authorities cited by plaintiff in erfor, to wit, 26 R. C. L. 804, Wells v. Mo. Pac. (Mo.) 19 S. W. 530, 40 L. R. A. (N. S.) 27, and Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769, are not applicable nor controlling in any issue in volved in this care. They merely sustain the contention that most states have constitutional provisions which restrict the authority of special or called sessions of state Legislatures to legislation only upon such subjects as may be recommended, submitted, presented, or communicated to the Legislature by the Govern- or, and that such restrictions are held to be mandatory. But this question is riot in issue in this case ; no one denies that such restrictions lare mandatory, and no one denies that under our Constitution a special or called session is expressly restricted to such subjects as may be recommend-ded for consideration by the Governor. A special session, extraordinary session, as our Constitution denominates it, has no authority to legislate upon any subject unless such subject has been, by an official message from the Governor, communicated to it for consideration.

But the Constitution does not require that the Governor shall insist upon the passage of a measure in order to give the Legislature authority to consider a subject, nor does it prescribe the form of communication or message, nor the manner in which it may be communicated, nor to whom it must be addressed.

In the absence of prescribed forms by the Constitution, the court is not at liberty to prescribe a form, and strike down a statute because such form is not followed. It has no such power, and where the requirements of the Constitution have been substantially complied with, in the enactment of a statute, rhe courts will not declare such statute void.

No decision has been cited from this state upon the identical questions presented here, and we know of none upon such questions; neither has there been any decision from any other state upon the same questions, nor upon the peculiar provisions which our Constitution contains. But the clear language of our Constitution, when analyzed and given all the force which such language implies, disposes of every question presented adversely to the contention of plaintiff in error.

For the reasons herein given, the judgment of the lower court sustaining the validity of the statute in question and denying the writ of mandamus is affirmed.

All the Justices concur, except BRAN-SON, V. C. J., dissenting.