Service Feed Co. v. City of Ardmore , 171 Okla. 155 ( 1935 )

We deem it advisable to supplement the views expressed in the advisory opinion relating to the application of the provision of section 57, art. 5, of the Constitution, which provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length, An examination of the decisions construing such provision as applied to legislative acts discloses that the courts rarely, if ever, give to such constitutional provision a strict interpretation. In the case of In re Lee, 64 Okla. 310, 168 P. 53, it is said:

"Constitutional prohibitions of the character here involved have often been discussed by the courts, and it appears:

"That they 'have never, in construction, been given a rigid effect, but have been held applicable only to such statutes come within their terms, when construed according to the spirit of such restriction, and in the light of the evils to be suppressed.' 36 Cyc. 1061.

"In People v. Mahaney, 13 Mich. 481, regarded as the leading case, the opinion by Judge Cooley on this point says:

" 'This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent'."

In the case of City of Pond Creek v. Haskell, 21 Okla. 711,97 P. 338, Mr. Justice Dunn prepared for the court a lengthy and learned opinion on this point in which the authorities were carefully reviewed. Therein it is said:

"An act of the Legislature, which is in form original and in itself intelligible and complete, and does not, either in its title or in its body, appear to be revisory, or amendatory of any existing law, is not within the inhibition of section 57, article 5, of the Constitution, providing that 'no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but that so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length'; and this is true, even where such act seeks to effectuate the powers conferred by referring to and requiring the officers provided for thereunder to proceed in the performance of their duties in accordance with general laws previously enacted."

This rule has been consistently followed in this jurisdiction. State v. Howard, 67 Okla. 289, 171 P. 30; Town of Haskell v. Edmonds, 90 Okla. 44, 215 P. 629; M., K. T. Ry. Co. v. Washington County, 136 Okla. 191, 276 P. 769. We quote further from the body of the opinion in the City of Pond Creek v. Haskell Case (quoting from Ex parte Pollard, 40 Ala. 98):

"In People v. Banks, 67 N.Y. 575, it is said: 'It is not necessary, in order to avoid a conflict with this article of the Constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the Constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute; but the enforcement of the right or duty and the final imposition of the burden are directed to be in the form and by the procedure given by the other and general laws of the state. Reference is made to such laws, not to affect or qualify the substance of the legislation, or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the Constitution was the incorporating into the acts of the Legislature, by reference to other statutes, of clauses and provisions of which the legislators might be ignorant, and which affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law, which would not receive the sanction of the Legislature if fully understood.' " * * *

" 'Section 22, article 5, of the Constitution of Arkansas, which reads, 'No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, or extended or conferred shall be re-enacted and published at length,' limits legislation which grants, modifies, or destroys rights, but it has no application to legislation which affects remedies and methods of procedure alone'." St. Louis San Franeisco Railroad Company v. Southwestern Telephone Telegraph Company, 121 F. 276, 58 Cow. C. A. 198.

Section 29, chapter 173, Session Laws 1923 (sec. 6240, O. S. 1931), does not assume to repeal other provisions of existing law or to confer or extend the provisions thereof by reference to its title only, but is an act complete in itself and by virtue of the well-established rule in this jurisdiction, that portion of section 57, art. 5, is not infringed by this act.

Then there is a second reason why said constitutional provision has no application here. That feature of the act to which objection is made provides for the sale of the real estate "in manner and form as in case of sale of real estate under execution." This provision is procedural only and in itself does not grant, modify, or destroy substantive rights.

In Casner v. Meriwether, 152 Okla. 246, 4 P.2d 19, an act somewhat similar was held unconstitutional. The principle reason for such holding was that the statute imposed burdens and granted rights retroactively and consequently impaired the obligation of contracts as to holders of special improvement liens. In addition thereto it was recited in the opinion that the act was also void as violative of section 57, art. 5, supra, for the reason that it extended the provisions of law for foreclosure of mortgages on real estate and sales thereunder to foreclosure of a lien of the holder of a tax sale certificate retroactively by reference to the title only. On rehearing, it was laboriously pointed out that rights and burdens were concerned and that these rights and burdens were sought to be enforced under a procedure adopted by reference to the title only. No reference was made to the authorities above mentioned, and, if said rights had been granted prospectively, instead of retrospectively, the rule announced in the last paragraph of the syllabus might have been qualified to harmonize with the rule announced herein. We adhere to the rule announced in the authorities cited in this supplemental opinion.

McNEILL, C. J., OSBORN, V. C. J., and RILEY, BAYLESS, BUSBY, CORN, and GIBSON, JJ., concur. WELCH and PHELPS, JJ., absent.