State Ex Rel. v. Hoss , 143 Or. 383 ( 1933 )

I cannot concur with my associates in the opinion that the words used in the body of the act are ambiguous or of such doubtful meaning so as to make it necessary to appeal to the title to determine what it meant.

The refusal to permit the sponsors of the said amendment to the constitution to have the matter voted upon at the special election in 1933 does not deprive the people of the right to express their opinion thereon at the polls. It simply postpones the vote until 1934. The relator and those signing the petition presented to the secretary of state must have had grave doubts as to their right to have the matter submitted at the special election, as in the petition they asked that it be submitted to the voters, either at the special election of July, 1933, or at the regular general biennial election of November, 1934.

The controversy arises over the meaning that should be given to section 1, and especially to the word "measure" in the following sentence: "* * * and all measures or enactments passed by said assembly, and which are or may be referred to the people * * *".

It is the contention of relator that the word "measures" is broader and means something more than "enactments". In respect to legislative matters, "measures" is defined by Funk Wagnalls New Standard Dictionary as "a specific act or course of procedure desired as a means to an end; an expedient; a legislative bill; * * *".

"Counsel for petitioner suggests that the term `measures' used in the amendment, enlarges the scope of the powers reserved beyond express reservation, but this is evidently not the purpose with which that term is employed. As before observed, there are two powers reserved. (1) The power to propose laws and amendments to the constitution, and to enact or reject them at the polls, and (2) the power to enact or reject at the polls any act of the Legislative Assembly. The subject matter upon which these powers may be exercised namely: initiative laws, constitutional amendments, and acts of the legislature referred to the people, are thereafter referred to collectively as `measures', merely as a matter of convenience and to avoid frequent enumeration of the powers reserved, and not with the intent to include other and different powers within the scope of the amendment. Had it been the intent of the framers of the referendum amendment to go beyond these express reservations, it would have been easy and natural for them to have said so". Herbring v. Brown, 92 Or. 176 (180 P. 328).

The rule is unquestioned that a statute should be interpreted according to the legislative intent, as gathered from the language used in expressing said intent in connection with the surrounding circumstances, so as to give full effect to the words so used in their ordinarily accepted meaning, unless it clearly appears that the legislative body intended the words to be understood in a different sense. State ex rel. Everding v.Simon, 20 Or. 365 (26 P. 170); Union Fisherman's Co. v.Shoemaker, 98 Or. 659 (193 P. 476, 194 P. 854); U.S.F. G. Co.v. Bramwell, 108 Or. 268 (217 P. 332, 32 A.L.R. 829); Banfieldv. Shulderman, 137 Or. 167 (296 P. 1066, 298 P. 905).

The Constitution of Oregon, article IV, § 1, provides:

"* * * that all elections on measures referred to the people of the state shall be held at the regular general biennial elections, except when the legislative assembly shall order a special election * * *. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he * * * shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor".

There cannot be a valid election unless it is held pursuant to law. State ex rel. Everding v. Simon, supra. Equi v. Olcott,66 Or. 213 (133 P. 775); State ex rel. Swan v. Kozer, 115 Or. 638 (239 P. 805). The secretary of state must find his authority to submit initiative or other measures, pursuant to some law.

"* * * It is manifest that the Secretary of State, as directed by the people in its Constitution already quoted, must be guided by the general laws on the subject involved. In the face of this mandate of the people, that officer cannot find any justification in the special act mentioned authorizing him to submit any initiative measure to the people during the present year. It is well settled that unless there is authority of law for an election it cannot be held. State ex rel. Everding v. Simon,20 Or. 365 (26 P. 170); Andrews v. Neil, 61 Or. 471 (120 P. 383, 123 P. 32). Of course under the sanction of the initiative and referendum system the people have a right to legislate independent of the legislative assembly, except as they themselves by their own Constitution have set metes and bounds upon this reserved power * * *. In short, as plainly declared by the people in the Constitution `the Secretary of State shall be guided by the general laws' in matters of this kind. He cannot rightfully enlarge the provisions of the special act of February 28, 1913, to include matter not therein specified, and this court has no power to direct him so to do, or to violate the express mandate of the people embodied in the Constitution, requiring him to operate under the general laws". Equi v. Olcott, supra.

"When an election is held for a specified, particular purpose, no other matters may be submitted at such election". Henderson v. Salem, 137 Or. 541 (1 P.2d 128, 4 P.2d 321).

Chapter 321 of Oregon Laws, 1913, under consideration in Equiv. Olcott, supra, provided for a special election in which "all measures passed by the twenty-seventh legislative assembly * * * upon which the referendum may be invoked, should be submitted * * *".

There are two ways under our constitution by which the referendum powers, reserved by the people, may be invoked. "* * * It may be ordered * * * by the petition signed by five per cent of the legal voters, or by the legislative assembly, as other bills are enacted * * *". Oregon Constitution, Article IV, § 1.

It will be observed that said chapter 440 makes no mention of initiative measures. It says, "* * * all measures or enactments passed by said assembly and which are or may be referred * * *". The thirty-seventh legislative assembly referred some "measures" to the people which would not become laws until approved by the voters. It perceived that some of its enactments, that would ordinarily become laws ninety days after its adjournment, might be subjected to a referendum by a petition, and the language so used limited the election to "measures or enactments" passed by said assembly whether referred by the legislature or by petition. Section 2 of the act provides for the arguments for or against said "amendments or measures". Section 3 provides for a true copy "of the title and text of each amendment and measure". Section 4 provides for ballot titles for "constitutional amendments or enactments". This indicates that it was the legislative intent to use "measure" and "enactment" in section 1 of the act synonymously.

Plaintiff contends that because the title of the act refers to "any measures against which the referendum may be invoked, or which may be initiated by the people", therefore the act was intended to be as broad as its title. The answer to this contention is, that the act is not. The title is frequently an aid to the interpretation of an act. The phrase, in the title referred to, is susceptible of two different constructions. It can be reasoned that the legislature, at the time of preparing the title, intended to provide for initiative measures at said special election and then deliberately omitted such provision from the body of the act. It would have been an easy matter to have used as apt words in the body of the act as in the title. We must look to the words in the body of the act for the authority of the secretary of state. State ex rel. Everding v. Simon, supra.

The proposed initiative measure is an attempt to amend the constitution of the state. Said chapter 440 provides that the special election is called for the purpose of submitting to the people "all proposed amendments to the constitution of the state of Oregon submitted by the thirty-seventh legislative assembly * * *". It was evidently the intention of the legislature to limit the election, so far as constitutional amendments were concerned, to those submitted by said assembly. The maxim, "Where one is included, the others are excluded", while not always a sure test, is of value in the interpretation of the instant statute.

The demurrer should be sustained and the petition dismissed.