STATE EX REL. SMITH v. KOZER, 121 Or. 459 (1927)

255 P. 900

STATE EX REL. SMITH v. SAM A. KOZER, SECRETARY OF STATE.

Oregon Supreme Court.Argued April 28, 1927
Reversed and remanded with directions April 29, 1927

From Marion: L.H. McMAHAN, Judge.

IN BANC.

REVERSED AND REMANDED WITH DIRECTIONS.

For appellant there was a brief over the names of Messrs. Bowerman Kavanaugh, Mr. L.B. Smith and Mr. W.S. U’Ren, with oral arguments by Mr. Jay Bowerman, Mr. Smith and Mr. U’Ren.

For respondent there was a brief over the names of Mr. I.H. Van Winkle, Attorney General, and Mr. Willis S. Moore, Assistant Attorney General, with an oral argument by Mr. Moore.

BURNETT, C.J.

The substance of the controversy in this case is that the petitioner desired to invoke the referendum upon an act passed by the legislative assembly of 1927 entitled:

“An act to provide additional powers and impose additional duties upon the state tax commission, the county assessors and other public officers and persons, firms, associations and corporations with reference

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to the assessment and equalization of property for purposes of taxation, the levy and collection of taxes thereon, providing a penalty for the violation thereof, and declaring an emergency,”

enacted as Chapter 277, Laws of 1927. He applied to the defendant, who is the Secretary of State, to refer his request for the referendum to the Attorney General to provide a ballot title so that petitions could be circulated for reference of the measure to the people of the State of Oregon at the special election to be held June 28, 1927. The defendant refused to proceed in the matter in any manner on the ground that the measure attacked contained an emergency clause giving the act full force and effect from and after its approval by the Governor and, as it was in fact so approved by the Governor March 3, 1927, the defendant had no authority to act as requested. Hence, the petitioner brought mandamus proceedings in the Circuit Court of Marion County to compel action on the part of the defendant as requested. A demurrer to the writ was sustained and the writ dismissed. The people of the State of Oregon by the relator have appealed.

The contention of the defendant is that he has no authority to act in the matter, because the emergency clause having put the act into effect at once, the legislation in question is beyond the power of the referendum. The relator maintains that the legislative assembly had no authority to attach the emergency clause to the particular measure involved and, hence, that clause forms no barrier against the referendum.

In Section 1 of Article IV of the Constitution it is said:

“* * The second power is the referendum, and it may be ordered (except as to laws necessary for the

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immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent of the legal voters, or by the legislative assembly, as other bills are enacted. * *”

It is also said in Section 1a of Article IX of the Organic Act that:

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

The title of the act as already quoted is fairly indicative of the provisions of the body of the act. In plainest terms it does regulate taxation. Hence, under Section 1a of Article IX, the legislative assembly had no right to append an emergency clause to the enactment. That part of the law is unconstitutional and void. It does not excuse the secretary from performing his ordinary duties respecting the process designed to carry into effect the referendum provisions of the Constitution and laws.

The Circuit Court was in error in sustaining the demurrer to the writ. The judgment is reversed and the cause remanded with direction to issue a peremptory writ to the Secretary of State requiring him to perform his duties according to the direction of the writ.

REVERSED AND REMANDED WITH DIRECTIONS.

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