Decided: July 5, 2005
ON APPEAL FROM THE DISTRICT COURT IN OKLAHOMA COUNTY, OKLAHOMA, THE HONORABLE DANIEL L. OWENS, PRESIDING.
¶ 0 The City of Enid filed this action against the Public Employees Relations Board and the American Federation of State, County, and Municipal Employees, seeking declaratory and injunctive relief from enforcement of the Oklahoma Municipal Employee Collective Bargaining Act. On summary judgment, the district court determined that the statutory classification of municipalities with populations greater than 35,000 for purposes of collective bargaining is arbitrary and discriminatory. The district court ruled that the Oklahoma Municipal Employee Collective Bargaining Act is a special law contrary to the Okla. Const., art. 5, §§ 46 and 59. The district court enjoined the Public Employees Relations Board from administering the law. The Federation of State, County, and Municipal Employees timely filed a petition in error and the Public Employees Relations Board filed a petition in error as co-appellant. We retained the appeal.SUMMARY JUDGMENT ORDER OF DISTRICT COURT AFFIRMED.
Tony G. Puckett, Ronald T. Shinn, Jr., McAfee Taft, Oklahoma City, for appellee, City of Enid.
W.A. Drew Edmondson, Attorney General of Oklahoma, Sandra D. Rinehart, Senior Assistant Attorney General, Oklahoma City, for co-appellant, Public Employees Relations Board.
James R. Moore, Sue Wycoff, James R. Moore Associates, Oklahoma City, for appellant, American Federation of State, County and Municipal Employees.
¶ 1 The dispositive question presented in this appeal is whether the Oklahoma Municipal Employee Collective Bargaining Act is a special law prohibited by the Okla. Const., art. 5, § 46. We answer the question in the affirmative. We find the Oklahoma Municipal Employee Collective Bargaining Act is unconstitutional.
¶ 2 The Oklahoma Legislature passed the Oklahoma Municipal Employee Collective Bargaining Act (the Act) during its 2004 session. The Act grants qualifying municipal employees the right to organize and choose representation for the purpose of collective bargaining and requires municipal employers to recognize, negotiate and bargain with employee representatives. It defines municipal employers to be those municipalities with populations greater than 35,000. The Act provides that it shall be administered by the Public Employees Relations Board (PERB).
11 O.S.Supp. 2004, § 51-202[ 11-51-202](11).
11 O.S.Supp. 2004 § 51-206[ 11-51-206].
11 O.S.Supp. 2004, § 51-207[ 11-51-207].
11 O.S. 2001, § 1-102[ 11-1-102](5) defines "municipality" for purposes of the Oklahoma Municipal Code to mean any incorporated city or town.
11 O.S.Supp. 2004, § 51-202[ 11-51-202](12) provides:
12. "Municipal employer" means municipalities in this state, as defined in Section 1-102 of Title 11 of the Oklahoma Statutes, with a population greater than thirty-five thousand (35,000) persons and any special districts, authorities, agencies and boards created by such municipalities; provided, however, that for purposes of this act such term shall exclude public school districts as defined in Section 1-108 of Title 70 of the Oklahoma Statutes, county governments and municipalities with a population of less than thirty-five thousand (35,000) persons;.
11 O.S.Supp. 2004, § 51-104[ 11-51-104]. The Public Employees Relations Board is a three-member board appointed by the Governor. The Legislature established PERB to administer the uniformed municipal employees — firefighters and police officers — collective bargaining law. 11 O.S. 2001, § 51-104[ 11-51-104].
¶ 3 Although an express purpose of the Act is "to promote orderly and constructive employment relations between municipal employers and their employees," the parties agree that the Act presently applies to only eleven municipalities in Oklahoma. They are incorporated cities that have populations greater than 35,000: Broken Arrow, Edmond, Enid, Lawton, Midwest City, Moore, Muskogee, Norman, Oklahoma City, Stillwater, and Tulsa. The promotion of "orderly and constructive labor relations" promised by the Act is granted to only this small number of Oklahoma cities.
11 O.S.Supp. 2004, § 51-201[ 11-51-201].
At the time of the enactment of the Act, employees in four of the eleven cities had a general labor union — Oklahoma City, population 506,129; Tulsa, population 393,120; Norman, population 95,694; and, Muskogee, population 38,446.
¶ 4 When the Act became effective on November 1, 2004, the American Federation of State, County, and Municipal Employees a/k/a AFSCME OK Organizing Committee (Union) requested certification from PERB to represent the City of Enid's qualifying employees. On November 4, 2004, PERB gave notice of Union's request to the City of Enid and directed the City to post the notice. Under PERB's emergency rules, PERB must certify Union as the Enid municipal employees' representative unless PERB receives a request from a rival union within fifteen days.
¶ 5 On November 19, 2004, the City of Enid filed an action against PERB and Union seeking a temporary restraining order, temporary and permanent injunctions, and declaratory judgment that the Act is special legislation contrary to the Oklahoma Constitution, art. 5, §§ 46 and 59 and art. 18, § 3(a). PERB and Union responded, urging that the district court not hastily decide the constitutional issues in a temporary injunction hearing. At the hearing on November 22, 2004, the district court granted a temporary restraining order and set a briefing schedule. Thereafter, the City of Enid filed its motion for summary judgment.
¶ 6 On summary judgment, the district court determined that the classification of municipalities with populations greater than 35,000 is arbitrary and discriminates against employees of municipalities with populations less than 35,000 and that the Act is a special law that cannot stand because it is not impossible to design a general law. The district court decided the Act is contrary to the Okla. Const., art. 5, §§ 46 and 59 and issued a permanent injunction against PERB. Union timely filed a petition in error and PERB filed a petition in error as co-appellant in Union's appeal. We retained the appeal. The parties presented oral arguments to the Court en banc on May 10, 2005.
II. Standard of Review
¶ 7 The issues presented for review are legal questions which we review de novo. Gladstone v. Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, ¶ 5, 66 P.3d 442, 445. Our de novo review is plenary, independent and non-deferential. Id.
III. Arguments of the Parties
¶ 8 The essence of the City of Enid's constitutional argument is that defining municipal employers to include only municipalities with populations greater than 35,000 creates a class of municipal employers and municipal employees that has no reasonable relation to the subject of the Act contrary to the Okla. Const., art. 5, § 59 and makes the Act a special law contrary to the Okla. Const., art. 5, § 46. The City also argues that the Act is unconstitutional under Okla. Const., art. 18, § 3(a) and the home-rule doctrine. The City urges that the Act in its entirety be declared unconstitutional and void and the permanent injunction be affirmed.
¶ 9 PERB argues that the 35,000-population restriction creates a class of similarly-situated, larger municipalities across the state which bears a reasonable relationship to the subject of the Act and that the Act is general in nature because it applies statewide to all municipalities in the class consistent with the Okla. Const., art. 5, §§ 46 and 59. Union also argues the Act reasonably classifies larger cities across the state that share similar circumstances of complex, multi-tiered organizations and the classification is rationally related to the purpose of the Act to promote orderly relations between municipal employers and their employees who are further removed from city management in larger cities and thus have a greater need to speak collectively to city management about the workplace. They urge that in the event the 35,000-population restriction is declared unconstitutional, the void provision be severed and the remainder of the Act be upheld.
IV. Oklahoma Constitution, art. 5, § 46
¶ 10 Every statute is presumed to be constitutional, Reynolds v. Porter, 1988 OK 88, ¶ 15, 760 P.2d 816, 819, and we approach a constitutional attack on a statute with great caution and grave responsibility. Way v. Grand Lake Ass'n, Inc., 1981 OK 70, ¶ 39, 635 P.2d 1010, 1017. In considering the constitutional arguments presented, we are guided by the following general principles. The Legislature is sovereign and the legislative power has no limitations except by specific declarations in the state and federal constitutions. Id. Constitutional restrictions on the Legislature will be strictly construed. Id. The law presumes that the Legislature carefully observed the requirements of the constitutions in enacting the statutes. Id. A statute will be upheld against a constitutional attack unless it is clearly and overtly inconsistent with the constitutions. Id.
¶ 11 The Oklahoma Constitution, art. 5, § 46, provides in pertinent part:
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
. . .
Regulating the affairs of counties, cities, towns, wards, or school districts;. . . .
¶ 12 This constitutional provision is designed to prevent legislators from interfering with local management by passing laws that single out some localities but leave others unaffected by the law. Bradford v. Cole, 1923 OK 571, ¶ 12, 217 P. 470, 471-472. Section 46 specifically prohibits the Legislature from enacting special laws dealing with twenty-eight subject areas. Reynolds v. Porter, 1988 OK 88, ¶ 17, 760 P.2d 816, 822. One of those twenty-eight subject areas is " regulating the affairs . . . of cities" within which the Act squarely falls.
¶ 13 This Court has determined that the phrase "regulating the affairs" as used in art. 5, § 46 refers to any law that touches upon matters of the political subdivision and affect the people of the political subdivision. Bradford v. Cole, at ¶¶ 5-6, 217 P. at 471. The Legislature has defined "city" to mean "a municipality which has incorporated as a city in accordance with the laws of this state". Under these definitions, a law that affects the people of a city by granting the privilege of collective bargaining to municipal employees and requiring the municipal employer to bargain with the employees' representative certainly touches upon city affairs. Clearly, the Act touches upon matters of a city that affect the people of the city. No other application can be had if we, as we must, apply the phrase "regulating the affairs of cities" to carry out the principle embodied in the constitutional provision. See Welch v. Holland, 1936 OK 598, 61 P.2d 559. No special state law may regulate the affairs of cities.
11 O.S. 2001, § 1-102[ 11-1-102](2).
¶ 14 The Oklahoma Constitution, art. 5, § 46 prohibits the Legislature from enacting special laws that regulate the affairs of cities, although it may do so by general law. A general law is one that applies equally to all persons, things or entities embraced in a class founded on some natural, intrinsic or constitutional distinction, while a special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject of the law. Roberts v. Ledgerwood, 1928 OK 723, ¶ 0, 272 P. 448, Syllabus by the Court; Oklahoma City v. Griffin, 1965 OK 76, ¶ 8, 403 P.2d 463, 465. It is argued that the Act is a general law because larger cities are on a different footing than smaller cities for purposes of collective bargaining. This argument, however, fails to recognize that art. 5, § 46 specifies "cities" as a distinct class of entities.
¶ 15 The Oklahoma Constitution, art. 5, § 46, requires any statute "regulating the affairs of cities" to be general in nature — to apply equally to "cities". So as not to be a special law proscribed by art. 5, § 46, a statute regulating the affairs of cities, must embrace all cities in the state rather than embracing only a subclass of larger cities. This is the only meaningful application of art. 5, § 46. Any other application would allow the Legislature to regulate the affairs of some cities but not all cities, rendering the provision meaningless.
¶ 16 Although there are more than 150 cities in Oklahoma according to recent U.S. Census information in the appellate record, the Oklahoma Municipal Employee Collective Bargaining Act confers the right of collective bargaining on municipal employees of a distinct subclass of eleven cities. By creating an artificial class of municipalities that have populations greater than 35,000, the Act carves a niche of municipal employees and grants them the right to bargain collectively with their respective municipal employers. The employees of this small class of eleven cities are employed in substantially the same or similar positions as many municipal employees of other mid-size and small cities all over the state working in sanitation, utilities, parks, and other public and private municipal endeavors. To avoid the special treatment of a special law, the privilege of collective bargaining must be extended to employees of all the cities throughout the state if it is extended to any. This Court said much the same in Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, ¶ 13, 714 P.2d 198, 204, when we concluded that "[d]iscrimination between teachers employed by school districts based solely on population offends art. 5 § 46." (Bold added.)
Oklahoma has more than 400 towns according to the U.S. Census information in the appellate record. The statutory definition of "municipality" includes cities and towns. 11 O.S. 2001, § 1-102[ 11-1-102](5). Oklahoma municipalities include a total of more than 600 cities and towns.
We recognize that the number of municipalities that have populations greater than 35,000 is fluid. The parties agree that currently there are eleven such municipalities.
Political subdivisions throughout the state, cities and school districts, are included in the collective bargaining statutes for firefighters and police officers, 11 O.S. 2001, §§ 51-101[ 11-51-101], et seq., and school employees, 70 O.S. 2001, §§ 509.1[ 70-509.1], et seq.
¶ 17 We are cognizant of the breadth of the Legislature's sovereign power. However, the prohibition unambiguously proclaimed in the Okla. Const., art. 5, § 46 operates to limit the sovereign Legislature. The Oklahoma Constitution, art. 5, § 46 is an absolute and unequivocal prohibition against special legislation in the listed subject areas, Reynolds at ¶ 21, 760 P.2d at 824, such as the Oklahoma Municipal Employee Collective Bargaining Act, regulating the affairs of some but not all cities. Under the strictest application of art. 5, § 46, the Act clearly and overtly violates that constitutional provision. We hold the language "with a population greater than thirty-five thousand (35,000) persons" in the definition of "municipal employer" in 11 O.S.Supp. 2004, § 51-202[ 11-51-202](12) offends the Okla. Const., art. 5, § 46. This is the dispositive issue. The Act, limiting its application to cities over 35,000 in population, is unconstitutional.
V. Oklahoma Constitution, art. 5, § 59
¶ 18 The parties presented substantial arguments under the Okla. Const., art. 5, § 59. Although we have ruled on the dispositive issue and hold the Act invalid under art. 5, § 46, we briefly address the requirements of Okla. Const., art. 5, § 59, which states:
Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.
¶ 19 This constitutional provision permits the Legislature to pass special laws only when the subject and purpose of the legislation cannot be dealt with by general law. Reynolds v. Porter, 1988 OK 88, ¶ 16, 760 P.2d 816, 822, recognized that the bench and bar have confused the requirements of art. 5, §§ 46 and 59 when a statute is attacked under both sections. Reynolds involved a statute of limitations, one of the subject areas listed in art. 5., § 46, that applied only to medical malpractice actions. As in this case, the statute was challenged under art. 5, §§ 46 and 59. Reynolds concluded the statute of limitation was a special law contrary to art. 5, § 46 because it applied only in medical malpractice actions and did not apply in all common-law tort actions.
¶ 20 Reynolds enunciated a three-prong inquiry to determine if a special law is valid under art. 5, § 59. Id., at ¶ 13, 760 P.2d at 822. The inquiry starts by identifying the class affected by the statute. If the class includes all persons, things or entities naturally related, it is a general law, Jack v. State, 1937 OK 394, ¶ 7, 82 P.2d 1033, 1035; but if not, it is a special law and the inquiry continues to the second prong to determine if the statute can be made applicable to the whole class; and if not, the inquiry continues to the third prong to determine whether the subclass is rationally related to the subject of the statute.
¶ 21 Reynolds said that if the statute relates to one of the twenty-eight subject areas listed in art. 5, § 46, our inquiry stops with the first prong of the art. 5, § 59 analysis. The first prong determines if the law is general or special. If it is a general law, then it is valid under art. 5, § 46. If it is a special law, as in Reynolds and in this case, it is prohibited because the constitutional framers predetermined that legislation on the twenty-eight subject areas listed in § 46 must always be by general law. Id. at ¶ 17, 760 P.2d at 822-823.
¶ 22 We recognize that under art. 5, § 59, a classification is reasonable if the distinction of the persons, entities or things has a sound and rational relation to the subject of the legislation. Sheldon v. Grand River Dam Authority, 1938 OK 76, ¶ 15, 76 P.2d 355, 360. See also Hudgins v. Foster, 1928 OK 243, ¶ 30, 267 P. 645, 649 (striking down a statute abolishing township offices in forty-nine counties but not the remaining twenty-eight counties for lack of good reason under art. 5, § 59); Elias v. City of Tulsa, 1965 OK 164, ¶¶ 9-10 and 20, 408 P.2d 517, 519-520 (striking down a statute providing for city-county cooperative planning commission with population limits to fit Tulsa only as arbitrary and a subterfuge under art. 5, § 59).
¶ 23 In its written and oral arguments, Union contends that the Act in this case is a general law because the 35,000-population restriction creates a reasonable class of cities that is rationally related to the objectives of the Act. Union urges that we follow the analysis in Hamilton v. Oklahoma City, 1974 OK 109, 527 P.2d 14.
¶ 24 In Hamilton, Oklahoma City argued that the governmental tort liability act was contrary to the Okla. Const., art. 5, § 46 because it applied to only Oklahoma City and Tulsa. Hamilton did not determine whether the waiver of sovereign immunity falls within one of the twenty-eight subject areas in art. 5, § 46. Rather, Hamilton considered whether cities with populations over 200,00 is a sufficiently distinctive classification for purposes of governmental tort liability. Hamilton engaged in an analysis that is appropriate under art. 5, § 59. Hamilton relied upon case law that turned on art. 5, § 59 analysis. Those cases did not analyze the requirements of art. 5, § 46. Concluding that the "classification is not unreasonable and does not contravene the Constitution of Oklahoma", Hamilton did not recognize any distinction between art. 5, § 46 and art. 5, § 59. Id. at ¶ 18, 527 P.2d at 17.
In upholding the population-based classification of cities in the governmental tort liability act, Hamilton v. Oklahoma City, 1974 OK 109, 527 P.2d 14, relied upon the art. 5, § 59 requirements enunciated in the following cases:
1) for the reasonableness of the classification — Key v. Donnell, 1924 OK 996, ¶ 2, 231 P. 546, 547 (struck down a statute that placed cities with populations between 35,000 and 45,000 and cities with populations over 90,000 in same class for fixing number of justices of peace as a subterfuge); Burks v. Walker, 1909 OK 317, ¶¶ 23 and 31, 109 P. 544, 549-551 (upheld the Superior Court Act, with its population-based classification of counties); Roberts v. Ledgerwood, 1928 OK 723, ¶ 18, 272 P. 448, 452 (struck down a statute that imposed the duty to oversee road and bridge work on county commissioners, with incremental salaries, only in counties that fall within specific population levels as arbitrary and without relation to the subject matter of the statute); Sheldon v. Grand River Dam Authority, 19938 OK 76, ¶ 15, 76 P.2d 355, 360 (upheld designation of area by counties as reasonable);
2) for the difference between general and special laws — Hudgins v. Foster, 1928 OK 243, 267 P. 645 (struck down a statute abolishing township offices in forty-nine counties but not the remaining twenty-eight counties for lack of good reason);
3) for population-based classification — Key v. Donnell, supra.; Bell v. Crum, 1940 OK 413, 106 P.2d 518, Syllabus No. 4 (held district court judicial district may be classified under for purposes of fixing salaries); Tulsa Expo. Fair Corp. V. Bd. Of County Com'rs, 1970 OK 67, ¶ 22, 468 P.2d 501, 507 (struck down a statute that authorized county fairs in counties having between 100,000 and 200,000 population as not related to the subject matter); Issacs v. Oklahoma City, 1966 OK 267, 437 P.2d 229 (upheld population-classification for urban redevelopment as reasonable); and Sanchez v. Martin, 1966 OK 116, 418 P.2d 639 (upheld population-based classification for jurisdiction of justices of the peace).
¶ 25 Hamilton is one of those cases which has contributed to the confusion of the requirements of these two constitutional sections as recognized in Reynolds. Reynolds examined the differences between the requirements of art. 5, § 46 and art. 5, § 59. We find Reynolds, rather than Hamilton, to be instructive on the requirements of these two different constitutional provisions.
¶ 26 Reynolds provides a clear and decisive analysis of art. 5, § 46. Reynolds explained that art. 5, § 46 is an absolute prohibition against creating subclasses in the subject areas listed in that section and that the rational-relation test required under art. 5, § 59 is not applicable in art. 5, § 46 analysis. Id. at ¶ 17and 21, 760 P.2d at 822, 823. Under Reynolds, a law regulating the affairs of some but not all cities in this state is contrary to art. 5, § 46 even if the subclass may be permissible under art. 5, § 59 analysis.
¶ 27 Even before Reynolds, this Court recognized that the Legislature is prohibited from creating subclasses for the subject areas listed in art. 5, § 46. Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, ¶ 13, 714 P.2d 198, 204 said:
Discrimination between teachers employed by school districts based solely on population offends art. 5 § 46. It is a well-accepted rule of statutory construction that a presumption of constitutionality must be applied. If a statute is susceptible of two constructions, one which will uphold the Act and its constitutionality, while the other will strike it down, it is our duty to apply the former course. Therefore, to give effect to the intent of the legislature we must use the procedures outlined for the school districts of 35,000 or more, and apply it to the school districts with less than that number.
(Bold added and footnotes omitted).
¶ 28 After Reynolds, we again recognized that the Legislature is prohibited from creating subclasses for the subject areas listed in art. 5, § 46. Grimes v. Oklahoma City, 2002 OK 47, ¶ 10, 49 P.3d 719, 724, found that the challenged statute did not violate art. 5, § 46 because it did not separate municipalities for different treatment and thus it was a general law. Citing Reynolds, Grimes found it unnecessary to analyze the statute under art. 5, § 59.
¶ 29 We have already determined that the Act in this case is a special law attempting to regulate the affairs of some cities but not all cities contrary to art. 5, § 46. Analysis under art. 5, § 59 is unnecessary and any such analysis would only contribute to the existing confusion of the separate requirements of each of these two constitutional provisions.
¶ 30 We note that Union surveyed numerous statutes containing population-based classifications and warned that this case may affect all those statutes. This warning is unfounded because each statutory classification challenged under either art. 5, § 46 or art. 5, § 59 must be considered in light of the subject of the particular statute.
VI. The Home-rule Doctrine
¶ 31 The City of Enid challenged the Act as contrary to the Okla. Const., art. 18, § 3(a) and the home-rule doctrine. Although the district court did not rule on this constitutional issue, the parties presented argument on the home-rule doctrine in their briefs filed in this Court. Without addressing a constitutional issue not ruled on below, we note that more than a quarter of a century ago, this Court put to rest a similar challenge to the firefighters and police officers arbitration statutes. Midwest City v. Cravens, 1975 OK 22, ¶ 35, 532 P.2d 829, 834, concluded that "the privilege of communicating with their respective employers with a collective voice involves a matter of state-wide concern and the Act authorizing them [firefighters and police officers] to speak through a collective voice supersedes any charter provisions to the contrary." City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, 845 P.2d 872; City of Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604. If the Act had been couched as a statewide concern applying to every city, the home-rule doctrine would not have prevented it. But the Act applies to only a very few cities, and therefore it is unconstitutional. The home-rule doctrine is not a dispositive issue.
The home-rule doctrine recognizes a city's full power of local self-governance in matters of purely local concern. The doctrine applies to cities that adopted charters pursuant to the constitution. Okla. Const., art. 18, § 3(a). The rule is that the city charter adopted by the city becomes the organic law of the city superseding the general law relating to matters of pure municipal affairs. See, Sparger v. Harris, 1942 OK 418, ¶ 0, 131 P.2d 1011, Syllabus by the Court.
¶ 32 PERB and Union request that we save the Act by severing the 35,000-population restriction in the definition of "municipal employer" if we decide it causes a constitutional infirmity. The City of Enid suggests that the 35,000-population restriction was the compromise that garnered the votes to pass the legislation. It opposes severability.
¶ 33 A strong preference for severability is entrenched in our law. There is a statutory presumption that the provisions of an act are severable. 75 O.S. 2001, § 11a[ 75-11a]. A principle goal of judicial rules of statutory construction is to save and to not destroy, and severability allows the non-offending language of an act to be saved. See Ethics Commission of State of Oklahoma v. Cullison, 1993 OK 37, 850 P.2d 1069. The offending language will be severed if it is apparent that the Legislature would have enacted the law without it and the non-offending language is capable of standing alone. In re Application of the Oklahoma Dep. of Trans., 2002 OK 74, ¶ 27, 64 P.3d 546, 553.
¶ 34 In Maule v. Indep. Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, 714 P.2d 198, this Court severed a 35,000-population restriction that offended art. 5, § 46. In Maule, the school district collective bargaining statutes provided a means for determining labor unions' competing claims of representation in school districts with 35,000 or more average daily attendance (ADA). The defendant school district had less than 35,000 ADA but was faced with competing union claims of representation. Maule determined that the 35,000-ADA restriction was "an entirely arbitrary norm" and "would result in an unreasonable application of a special law" in violation of the Okla. Const., art 5, § 46. Id. at ¶ 12, 714 P.2d at 203-204. Concluding that the Legislature may not deal with any phase of public school administration except by a statute which has general statewide application, Maule implicitly severed the 35,000 ADA provision.
¶ 35 The collective bargaining act in Maule applied to all school districts. This Court severed the offending language to preserve the legislative intent to allow collective bargaining in every school district in the state. The 35,000-ADA restriction in Maule was a part of a provision for a narrow and incidental procedure that could be extended to all school districts in order to preserve legislative intent.
¶ 36 In this case, unlike in Maule, the 35,000-population restriction triggers application of the Act to a municipality. The only legislative intent to be gleaned from the Act in this case is that the Legislature intended to authorize collective bargaining only in municipalities with 35,000 or more inhabitants. The whole Act hinges on the constitutionally-offensive 35,000-population restriction. We absolutely cannot find it is apparent that the Legislature would have passed the Act without the 35,000-population restriction.
¶ 37 We have refused to sever constitutionally-offensive language when it is apparent that the Legislature would not have enacted the statute without the invalid parts, Englebrecht v. Day, 1949 OK 154, 208 P.2d 538, or the offending language is an integral and significant portion of the whole, Tulsa Expo. Fair v. Bd. of County Commissioners, 1970 OK 67, ¶ 13, 468 P.2d 501, 507. In this case, the offensive language is a significant and integral part of the Act.
¶ 38 We cannot sever the constitutionally-offensive phrase "with a population greater than thirty-five thousand (35,000) persons" from the definition of municipal employer. To do so would extend the right of collective bargaining to the employees of every city and town in Oklahoma when the Legislature clearly did not intend that result. To do so would rewrite the Act. We do not sit as a super legislature. See City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, ¶ 23, 886 P.2d 485, 495. We will not rewrite this Act, especially to a result not intended by the Legislature. We hold the Oklahoma Municipal Employee Collective Bargaining Act, 11 O.S.Supp. 2004, §§ 51-200-51-220[11-51-200-51-220], to be unconstitutional in its entirety.
¶ 39 The Oklahoma Municipal Employee Collective Bargaining Act grants the privilege of collective bargaining to eligible employees of municipalities with populations greater than 35,000. The Act does not apply to all cities in the state and therefore it is a special law. The Act is subject to the provisions of the Okla. Const., art. 5, § 46 prohibiting special laws regulating affairs of cities. The language "with a population greater than thirty-five thousand (35,000) persons in the definition of "municipal employer" in 11 O.S.Supp. 2004, § 51-202[ 11-51-202](12) offends the Okla. Const., art. 5, § 46. The constitutionally-offensive language is an integral part of the Act and cannot be severed. The Oklahoma Municipal Employee Collective Bargaining Act is a special law prohibited by the Okla. Const., art. 5, § 46 and unconstitutional unless the Legislature removes the constitutionally-offensive language.
SUMMARY JUDGMENT ORDER OF DISTRICT COURT AFFIRMED.
WATT, C.J., WINCHESTER, V.C.J., and OPALA (by separate writing), TAYLOR and COLBERT, JJ., concur.
KAUGER, J., concurs in part and dissents in part.
LAVENDER, J., (by separate writing) dissents in part.
HARGRAVE, J., and EDMONDSON, J., (by separate writing) dissent.
¶ 1 To be tested for conformity to Art. 5 § 46, Okl. Const., is that provision of 11 O.S. Supp. 2004 § 51-202[ 11-51-202](12) in the Oklahoma Municipal Employees Collective Bargaining Act (Act), 11 O.S. Supp. 2004 § 51-200[ 11-51-200] et seq., which confines collective bargaining benefits to employees of municipalities whose population exceeds thirty-five thousand persons. The court holds the Act invalid. I accede to its judgment and to today's pronouncement. Writing in concurrence, I offer an addendum to the analytical framework for the issue at hand.
The terms of Art. 5 § 46, Okl. Const., are:
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
* * *
The creation, extension, or impairing of liens;
Regulating the affairs of counties, cities, towns, wards, or school districts;
¶ 2 A statute collides with the § 46 uniformity requirements when it targets for different treatment less than a whole class embraced within one of that section's prohibited subjects. It is not denied that (1) § 46 mandates in absolute terms statewide uniformity for acts "[r]egulating the affairs of counties, cities, towns, wards, or school districts . . ." and (2) the Act here under consideration falls under that rubric of enactments. Conformity to the standards of Art. 5 § 59, Okl. Const., presents for legal testing an issue different from that required under § 46. While § 46 prohibits the passage of any special (or local) law on a variety of subjects regardless of whether a suitable general law could (or could not) have been framed, the latter section (§ 59) merely calls for statutes to be cast in the form of general laws which would appear to have uniform application. Within the meaning of § 59 a special law is permissible if a general law could not be fitted. Not so under the standards of § 46. The § 46 command is absolute, unequivocal and unqualified. It defies testing by the standards of § 59. If the founding drafters did not intend to set aside the named § 46 subjects for much tougher scrutiny than that required by § 59, that section (§ 46) would have been redundant. Without § 46's inclusion, § 59 would have covered the universe of legislation, including the very subjects that stand singled out for tougher constitutional scrutiny by their listing in § 46.
The terms of Art. 5 § 59, Okl. Const., are:
Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.
Horvat v. State ex rel. Dept. Of Corrections, 2004 OK CIV APP 59, 95 P.3d 190, 192; State ex rel. Macy v. Board County Com'rs, 1999 OK 53, ¶ 14, 986 P.2d 1130, 1138-1139; Johnson v. Tony's Town Mister Quick, 1996 OK 138, 915 P.2d 355, 357; Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; State v. District Court of Mayes County, 1967 OK 228, 440 P.2d 700, 705-706; Diehl v. Crump, 1919 OK 62, ¶ 6, 179 P. 4, 6; Chickasha Cotton Oil Co. v. Lamb Tyner, 1911 OK 68, ¶¶ 4-12, 114 P. 333, 334-36; see also, Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1119.
Some extant jurisprudence that is aberrational does not correctly reflect the distinct commands of §§ 46 and 59. See, e.g., Lowden v. Oklahoma County Excise Board, 1940 OK 134, 100 P.2d 448. To the extent that extant jurisprudence is in conflict with the views of today's pronouncement, it is an incorrect exposition of Oklahoma's constitutional law. Lowden's message reduces the degree of requisite legislative compliance with the § 46's command from absolute obedience to just some minimum level of foreseeable court-sanctioned flexibility. It leaves the State with a watered-down version of her own Constitution's text and a greatly attenuated genre of John Marshall's judicial-review doctrine. Fidelity to an unambiguous fundamental law's mandate calls for an elevated degree of judicial deference and vigilant protection. Faithful commitment to the document's facially revealed, crystal-clear meaning demands that we firmly repudiate Lowden's aberrational course of yesteryear's "wiggle-room" jurisprudence.
¶ 3 A subject prohibited from inclusion in a special (or local) law may not be disuniformly dealt with by any legislative enactment. Employees of cities with a population of less than thirty-five thousand persons must be accorded a treatment that does not differ from that extended to employees of cities with a population of over thirty-five thousand persons.
¶ 4 In summary, the dichotomous division of cities into population brackets for application to collective bargaining benefits for city employees offends the § 46's mandated norms of uniformity, symmetry and evenhanded treatment.
¶ 5 I hence join the court's judgment and its pronouncement.
¶ 1 I respectfully dissent in part to the majority opinion for the reason the opinion misconstrues what is or is not a local or special law within the meaning of OKLA. CONST. art. 5, § 46, as opposed to a general law. The City of Enid here challenges the constitutionality of the Oklahoma Municipal Employee Collective Bargaining Act (Act), 11 O.S. Supp. 2004, § 51-200[ 11-51-200] et seq., claiming, in part, the Act violates § 46 because of the Act's population classification. In my view, the majority opinion misinterprets the intent of the framers of the Oklahoma Constitution, who never intended for § 46 to act as a blanket or absolute prohibition against classifying cities on the basis of their population no matter what the purpose of the legislation in regard to regulation of city affairs. Although certain legislative population-based classification concerning regulating the affairs of cities may fail to pass constitutional muster under § 46, not all such classification does. In other words, there is nothing in § 46 that requires all cities be treated alike by the Legislature for all purposes respecting regulation of city affairs and the majority opinion errs in ruling otherwise.
In that the majority opinion strikes down the Oklahoma Municipal Employee Collective Bargaining Act (Act), 11 O.S. Supp. 2004, § 51-200[ 11-51-200] et seq., as failing to pass constitutional muster under OKLA. CONST. art. 5, § 46, I perceive no valid reason to rule on the City of Enid's assertion the Act is also unconstitutional as contrary to the home-rule doctrine. I, therefore, take no position at the present time on the City's argument in such regard.
As set out by the majority opinion in its notes 5 and 6, the Act uses the phrase "municipal employer" and defines the phrase by reference to the definition of a "municipality" contained in 11 O.S. 2001, § 1-102[ 11-1-102](5) of the Oklahoma Municipal Code, 11 O.S. 2001, § 1-101[ 11-1-101] et seq., as amended. Thus, the Act applies to any incorporated city or town that meets the population-based criterion by virtue of the interplay between § 51-202(12) of the Act and § 1-102(5). In that the majority opinion uses the term cities in ¶¶ 15 and 26 thereof, the two main paragraphs in the majority opinion that I believe are misguided, I use the term cities in this dissenting in part opinion.
Although the population-based classification under the Act may suffer from constitutional infirmity as a special or local law in violation of § 46 of article 5 of the Oklahoma Constitution because it is underinclusive and grounded on a false or deficient classification that treats not dissimilar cities in relation to collective bargaining issues of city employees differently, the majority, in the main, does not so hold, but fastens its primary rationale on the mistaken view that § 46 requires all cities to be treated alike for all legislative purposes regarding regulation of the affairs of cities. Thus, even though, in view of the population limit chosen by the Legislature, there may be a tenable argument the population classification of the Act is underinclusive and, thus, not reasonably treating the same or similar types of cities in a like manner, in my view, there is no plausible argument that § 46 requires that all cities, regardless of their population, must be treated alike for the purposes of all legislative subjects that involve regulating the affairs of cities. The majority opinion is simply wrong in so holding.
¶ 2 OKLA. CONST. art 5, § 46 provides in pertinent part, that "[t]he Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . . [r]egulating the affairs of counties, cities, towns, wards, or school districts." Boiled down and as pertinent here, § 46, unless otherwise allowed somewhere else in the Oklahoma Constitution, prohibits the Legislature from passing local or special laws regulating the affairs of cities. OKLA. CONST. art. 5, § 59 provides: "[l]aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." Under both provisions, after a determination is made that the challenged law concerns one of the twenty-eight (28) subjects, the next question necessary to address is whether the legislation at issue is a special or local law. If it is, § 46 is violated. If it is not, and, instead, the determination is made that the law is a general law, § 46 does not prohibit the law. Thus, one must delineate and then apply the proper test for deciding what is or is not a local or special law. The majority opinion does not do so.
The word "local," as a word of constitutional or statutory prohibition, signifies belonging or confined to a particular place, and relates only to a portion of the people of a state or their property. When applied to legislation, it signifies such legislation as relates to only a portion of the territory or state, or a part of its people, or to a fraction of the property of its citizens.
Special laws, prohibited by Sections 32, 46 and 59, Article 5, of the Constitution of Oklahoma, are those which apply to less than the whole of a class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances, and hence do not have a uniform operation.
Fenimore, 194 P.2d at 852-853 (Third Syllabus by the Court). Although either one or both of the terms, special or local, taken out of context or improperly understood might be thought to ban or prohibit all population-based legislative regulation of city affairs, as the terms are used in § 46 of article 5 of the Oklahoma Constitution, neither was intended to do so.
We think it is well settled from an examination of the authorities, which are almost unanimous, that the Legislature may legislate upon certain subjects, and in the act make a classification of its application to cities, towns, or counties, upon the basis of population, and the law will be construed as a general law not within the inhibition of the Constitution against local and special legislation, provided the classification as made is a legitimate one, and not arbitrary and capricious, and bears some reasonable, rational relation to the subject-matter. The first question for consideration is whether the classification made by the Legislature in this act, upon the basis of population, was arbitrary, capricious, unreasonable, and used as a subterfuge for the purpose of passing an act general in form, but in reality a local and special act, and applicable only to Oklahoma City.
Id. at 547. In Key it was further stated succinctly:
The Legislature may classify the . . . cities of the state on the basis of population for legislative purposes, when the classification is not arbitrary and capricious, but is founded upon real and substantial distinctions, and the question of population bears some reasonable, rational relation to the subject-matter.
Id. at 546 (First Syllabus by the Court). One of the challenges in Key was based on the then existent prohibitory § 46 ban on special or local law regulating the affairs of cities. Although the legislation under review in Key was held unconstitutional by the Court as a special or local law because of an arbitrary and capricious population classification, nonetheless the Court without question recognized that not all legislative population-based classifications concerning regulation of the affairs of cities or counties, etc. are thereby ipso facto to be considered special or local laws and, thus, automatically violative of § 46. Key has not been overruled by this Court. Nor have Hamilton v. Oklahoma City, 1974 OK 109, 527 P.2d 14, Sanchez v. Melvin, 1966 OK 116, 418 P.2d 639, Pointer v. Town of Chelsea, 1927 OK 9, 257 P. 785 (upholding town population-based legislation over § 46 challenge) and numerous other cases, all of which have recognized the same.
¶ 5 The statement in ¶ 15 of the majority opinion, that § 46 somehow requires that "a statute regulating the affairs of cities, must embrace all cities in the state rather than embracing only a subclass of larger cities," is in error, it ignores a plethora of case law on the subject, it changes the intent of § 46 the framers of that provision had in mind and it limits legislative power where the Oklahoma Constitution contains no such constraint. Furthermore, the majority opinion in its ¶ 26 misinterprets Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, as standing for the proposition, in essence, that a general law may never come into existence by legislative enactment if any one of the twenty-eight (28) subject areas in § 46 are broken into a more distinct classification (the majority uses the term "subclass"). Reynolds neither holds such nor does any reasonable extrapolation from Reynolds support such a view.
¶ 6 Reynolds itself does not define a special or local law as being coextensive with the category at issue there, "limitation of civil . . . actions." Reynolds recognized that civil actions may be classified into specific categories of tort actions of a similar nature for statute of limitation purposes and, obviously, that doing so would not a fortiori be the passage of a special or local law violative of the strictures contained in § 46. Reynolds, 760 P.2d at 823. In other words, Reynolds does not stand for the proposition that the categories of subjects listed in § 46 are always absolute limitations for classification purposes with regard to the test for deciding whether a law relating thereto is a special or local law or, instead, a general law, as the majority apparently believes that Reynolds does. If the majority opinion's view is correct, which I do not believe it is, there could not be different statutes of limitation for contract and tort actions, for written and oral contract actions, for assault and battery, for fraud or for trespass (see 12 O.S. Supp. 2004, § 95[ 12-95] which provides different limitation periods for various types of civil actions), which obviously there are and I do not think a majority of the Justices on this Court believe, if any do, that because these different and distinct types of civil actions are subject to diverse limitation periods they are thereby unconstitutional under a § 46 analysis because they are all civil actions.
¶ 7 The majority opinion seems to ignore the following cautionary language contained in Reynolds at footnote 36 thereof:
We do not express an opinion as to the proper test to be applied in identifying a class for other subjects enumerated in Art. 5, § 46, Okl. Const. The test we adopt for identifying the class in measuring the validity of a civil action's limitation by the strictures in § 46 is not necessarily applicable to other subjects enumerated in that section.
(emphasis added). 760 P.2d at 823, n. 36. Plainly, footnote 36's cautionary comment is unequivocally speaking about the test for class identification purposes relevant and vital to the determination of deciding whether the particular legislation under review, because of its class line-drawing, is or is not to be considered a special or local law violative of the strictures contained in § 46.
¶ 8 The Court has made clear, on numerous occasions, that the mere fact that legislation uses population as a criterion for application of a particular statutory scheme, is not always decisive of the special or local versus general law question. The inquiry must dig deeper to uncover whether the Legislature has merely used population to act as a subterfuge for the purpose of passing a special law in the form of a general one. Key v. Donnell, 231 P. at 549. In other words, is the classification of cities by population a legitimate one, and does it really bear some reasonable relation to the subject-matter adopted by the legislative body, or is the population classification only an arbitrary or capricious classification, used as a subterfuge to cloak a special or local law in general law garb. See id. If the determination is made that the legislation at issue is a general law the inquiry ends and the legislation passes muster under § 46.
¶ 9 Very simply, the majority opinion, incorrectly in my view, holds that a law is automatically to be categorized as special or local in nature, and, thus, violative of § 46, if it classifies cities in regard to a particular piece of legislation by population when the legislation involves regulating city affairs. In effect, the majority opinion defines a local or special law, for § 46 purposes, as any law that is not coextensive with one of the twenty-eight (28) categories listed in § 46. As it relates to regulating the affairs of cities, the majority opinion is simply wrong in such regard. In my view, cities may be classified into similarly situated municipalities based on their population when the Legislature, in its wisdom, has a legitimate, reasonable and rational reason to do so in the legislation under review.
¶ 10 What the majority opinion does is mistakenly mix up the categories of subjects contained in § 46 with what is or is not a special or local law concerning those subjects. Reynolds itself does not make this fundamental mistake. As Reynolds makes plain, "[a] statute relating to all persons or things of a class is a general law; one relating to particular persons or things of a class is a special law. . . . Special laws are those which single out less than an entire class of similarly affected persons or things for different treatment." (footnotes omitted). Reynolds, 760 P.2d at 822. In Elias v. City of Tulsa, 1965 OK 164, 408 P.2d 517, the Court said the following:
Classification by reference to population must be a legitimate one, and bear some reasonable relation to the subject matter, and must not be an arbitrary or capricious classification and used as a subterfuge for the purpose of passing a special law under the form of a general law.
Id. at 519-520, citing Key v. Donnell. Elias also said this concerning local or special laws:
Invalid local or special laws rest on a false or deficient classification. Their vice is that they do not embrace all the class that they should naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect.
Id. at 518 (Second Syllabus by the Court).
¶ 11 Thus, we must answer the question of whether cities with populations greater than 35,000 are similarly situated to cities with 35,000 or less populations, for the purpose of collective bargaining in regard to municipal employees — the subject of the pertinent legislation before us — to properly discern whether the Act, in light of its population classification, is a special or local law, or, instead, a general law. Only if the population classification is arbitrary or capricious, or stated another way, bears no legitimate, rational or reasonable relation to the subject matter of the statutory scheme, thereby leaving out cities that should be included because there is no real basis for excluding them, is this Court warranted in concluding that the classification has created a special or local law susceptible to being struck down under § 46 for constitutional infirmity.
¶ 12 The bottom line here is that, contrary to the view of the majority opinion, § 46 did not and does not have an intent to absolutely outlaw classification of cities on the basis of population in regard to legislation regulating the affairs of cities. In my view, the majority opinion incorrectly limits the power of the Legislature to deal with potentially weighty problems and issues when it comes to cities and population, whereas the Oklahoma Constitution contains no such limitation in art. 5, § 46. The majority opinion errs in so ruling and, accordingly, I must respectfully dissent in part to the majority opinion.
¶ 1 Because the Constitution and our previous opinions do not support the Court's analysis, I respectfully dissent.
¶ 2 The Oklahoma Constitution states that a statute may be classified as a "general law" or a "special law." When the Legislature has created an alleged special law in violation of Art. 5 § 59, the Court has determined whether the classification was reasonable. If the law is reasonable it is a general law, not a constitutionally allowed special law.
¶ 3 Article 5 § 46 also prohibits special laws. The Court's opinion states that for the purpose of Article 5 § 46, a law may be reasonable but still retain its classification as a special law and thus be prohibited. The Court states that this conclusion is mandated by Reynolds v. Porter, 1988 OK 88, 760 P.2d 816. This is incorrect.
¶ 4 The Court clearly does not follow its pre- Reynolds § 46 jurisprudence. In § 46 opinions the Court has used its § 59 opinions defining a special law when defining a special law for the purpose of § 46. Sections 46 and 59 were not new concepts when our Constitution was created, and the Court today does not follow what the framers of the Oklahoma Constitution intended when §§ 46 and 59 were created.
There is no anomaly in the Constitution. A proposed special law prohibited by § 59 may be made constitutional by the Legislature during the enactment process (Art. 5 § 32), while a special law prohibited by § 46 may not be enacted.
I. Sections 46 and 59 of the Constitution
¶ 5 The statute before us states that it applies to municipalities with "a population greater than thirty-five thousand (35,000) persons. . . ." Is this statute an unconstitutional special or local law? It is not, and our Constitution has three provisions — Art. 5 §§ 32, 46, and 59 — which support this conclusion.
11 O.S.Supp. 2004 § 51-202[ 11-51-202](12).
¶ 6 Our Constitution states that the Legislature should enact a general law, if possible, as opposed to a special law:
Laws of a general nature shall have uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.
Okla. Const. Art. 5 § 59.
It states in Article 5, § 46, that the Legislature may not create a local or special law authorizing activities that are listed therein.
Local and special laws on certain subjects prohibited.
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
The creation, extension, or impairing of liens;
Regulating the affairs of counties, cities, towns, wards, or school districts;
Changing the names of persons or places;
Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys;
Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state;
Vacating roads, town plats, streets, or alleys;
Relating to cemeteries, graveyards, or public grounds not owned by the State;
Authorizing the adoption or legitimation of children;
Locating or changing county seats;
Incorporating cities, towns, or villages, or changing their charters;
For the opening and conducting of elections, or fixing or changing the places of voting;
Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;
Changing the law of descent or succession;
Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables;
Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;
Fixing the rate of interest;
Affecting the estates of minors, or persons under disability;
Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;
Exempting property from taxation;
Declaring any named person of age;
Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability;
Giving effect to informal or invalid wills or deeds;
Summoning or impaneling grand or petit juries;
For limitation of civil or criminal actions;
For incorporating railroads or other works of internal improvements;
Providing for change of venue in civil and criminal cases.
II. The Origins of Article 5 §§ 32, 46 and 59.
¶ 7 A former Chief Justice of this Court notes the origin of Art. 5 § 46. R.L. Williams, The Constitution of Oklahoma and Enabling Act: Annotated With References to the Constitution, Statutes and Decisions, Art. 5 § 46 (2nd ed. 1941). He notes that § 46 was derived from a federal statute that applied to Oklahoma Territory. Id., citing, Guthrie Daily Leader v. Cameron, 1895 OK 71, 41 P. 635. That same statute was explained by the United States Supreme Court:
This Court has relied upon Justice Williams' annotations for identifying the sources for various sections of the Oklahoma Constitution. See, e.g., Sommer v. Sommer, 1997 OK 123, ¶ 9, 947 P.2d 512, 514; Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, 1300. An annotation also has been cited for identifying a purpose for a constitutional provision. Trustees', Executors' Securities Ins. Corp. v. Hooton, 1915 OK 1059, 157 P. 293, 297. However, the limited nature of Williams' work is usually insufficient as an exclusive source for determining the full intent of the Constitutional Convention and the people who thereafter ratified the Constitution. Immanuel Baptist Church v. Glass, 1972 OK 79, 497 P.2d 757, 758.
That act [Act of July 30, 1886, c. 818, § 1, 24 Stat. 170], among other things, provides that, where a general law can be made applicable, no special law shall be enacted in any of the territories of the United States by the territorial legislatures thereof; and it also provides that the territorial legislatures shall not pass local or special laws in any of the cases therein enumerated, among which is a law to regulate the practice in courts of justice. Both of these provisions are said to have been violated in the passage of the act in question.
The Act of July 30, 1886, c. 818, 24 Stat. 170, contains seven sections on various topics with § 1 of that Act devoted to prohibiting territorial legislatures from enacting special or local laws. Section 1 of the Act contained the language subsequently enacted in both § 46 and § 59 of our Constitution.
The Act of July 30, 1886, c. 818, § 1, 24 Stat. 170, (with emphasis added) states:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the legislatures of the Territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases, that is to say:
CHAP. 818. — An act to prohibit the passage of local or special laws in the Territories of the United States, to limit Territorial indebtedness, and for other purposes.
Changing the names of persons or places.
Laying out, opening, altering, and working roads or highways.
Vacating roads, town-plats, streets, alleys, and public grounds.
Locating or changing county seats.
Regulating county and township affairs.
Regulating the practice in courts of justice.
Regulating the jurisdiction and duties of justices of the peace, police magistrates, and constables.
Providing for changes of venue in civil and criminal cases.
Incorporating cities, towns, or villages or changing or amending the charter of any town, city, or village.
For the punishment of crimes or misdemeanors.
For the assessment and collection of taxes for Territorial, county, township, or road purposes.
Summoning and impaneling grand or petit jurors.
Providing for the management of common schools.
Regulating the rate of interest on money.
The opening and conducting of any election or designating the place of voting.
The sale or mortgage of real estate belonging to minors or others under disability.
The protection of game or fish.
Chartering or licensing ferries or toll bridges.
Remitting fines, penalties, or forfeitures.
Creating, increasing, or decreasing fees, percentage, or allowances of public officers during the term for which said officers are elected or appointed.
Changing the law of descent.
Granting to any corporation, association, or individual the right to lay down railroad tracks, or amending existing charters for such purpose.
Granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever.
In all other cases where a general law can be made applicable, no special law shall be enacted in any of the Territories of the United States by the Territorial legislatures thereof.
¶ 8 An old rule of statutory construction states that "Where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear, this meaning will be attached to it elsewhere, unless it clearly appears from the whole statute that it was the intention of the Legislature to use it in a different sense." Walton v. Donnelly, 1921 OK 258, 201 P. 367, 370. The Framers of our Constitution knew this rule and knew that a "special law" in the federal statute did not have different definitions in the same section of that statute when they used it to create § 46 and § 59.
¶ 9 The federal statute was created in 1886, and reflected reaction against prior legislative abuses of power in creating rights or privileges for less than everyone in the population. Relating to municipalities, in 1893 one author explained that state legislatures "have more and more interfered in matters relating exclusively to subdivisions of the state, — often against the express desire of these subdivisions." Amasa M. Eaton, Recent State Constitutions, 6 Harv L Rev 109, 122 (1892). Prohibiting local or special laws was popular in new and amended state constitutions during this era.
Act of July 30, 1886, c. 818, § 1, 24 Stat. 170, codified at 48 U.S.C. § 1471, repealed by Act of Dec. 8, 1983, Pub.L. 98-213 § 16(w), 97 Stat. 1463. 48 U.S.C.A. § 1471 (West 2003), (Historical and Statutory Notes).
Charles C. Binney, Restrictions upon Local and Special Legislation in State Constitutions, 8 (1894), (until the creation of the 1886 federal act no adequate restrictions were imposed upon special or local legislation in the territories, but states admitted to the Union in the thirty-year period prior to 1894 contained provisions prohibiting, in differing degrees, special or local laws). See also, G. Alan Tarr, Understanding State Constitutions, 118-119 (1998), (growing popularity of limiting legislative power to enact special or local laws in state constitutions discussed); James Q. Dealy, Growth of American State Constitutions: From 1776 to the End of the Year 1914, 224-228 (1915), (reprint 1972), (same).
¶ 10 States that prohibited all special and local laws discovered that some special and local laws were needed, and some states then created constitutional provisions to allow enactment of special and local laws if pre-enactment notice were given by the legislature that it intended to enact such laws. James Q. Dealy, Growth of American State Constitutions: From 1776 to the End of the Year 1914, 225-226 (1915), (reprint 1972). The Oklahoma Constitution provides this procedure in Art. 5 § 32. But with this power to enact special and local laws upon notice to the people, the people withdrew certain subjects from the Legislative power to enact special and local laws even if notice were provided.
No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State.
See Chickasha Cotton Oil Co. v. Lamb and Tyner, 1911 OK 68, 114 P. 333, 336 (Art. 5 § 32 does not apply to the Art. 5 § 46); State v. Dist. Court of Mayes County, 1967 OK 228, 440 P.2d 700, 705 (same), overruled on other grounds in Palmer v. Belford, 1974 OK 73, 527 P.2d 589, 591.
¶ 11 What are the general, local, and special laws prohibited by constitutions during this era? One author stated that the phrase "general law" in state constitutions was not capable of a simple and exact definition. Charles C. Binney, Restrictions upon Local and Special Legislation in State Constitutions, 21-22 (1894). Typically, courts would state that a general law was not designed for particular persons, because a law designed for particular persons is a prohibited special law. Id. at 22. Additionally, they would state that a general law is not designed for particular localities, because a law designed for particular localities is a prohibited local law. Id. at 22. But courts of this era also recognized that a definition stating what a general law is not could not be sufficient, by itself, and could not be applied as a bright-line rule to decide the issue of whether a particular act was general or special. Id. at 22-23.
¶ 12 Courts recognized that a general law "is not necessarily universal, i.e., capable of operating upon all persons or all things within the state legislated for." Id. at 22.
"Are we then to understand that a general law is only one which operates upon all persons or all things? If so, it is obvious that our general laws are very few, if, indeed, there any of that class. Obviously such cannot be the meaning of the words `of a general nature' as here used [in the constitution]. The word general comes from genus, and relates to the whole genus or kind, or in other words to a whole class or order. Hence a law which affects a class of persons or things less than all may be a general law:"
Binney, Restrictions upon Local and Special Legislation in State Constitutions, at 22 n. 3, quoting, Brooks v. Hyde, 37 Cal. 366, 375 (1869).
¶ 13 A law need not possess universal application to satisfy the definition of a "general law," but the Court's opinion today holds otherwise. It holds that a statute regulating the affairs of municipalities is local and special in character unless every municipality in the state comes within the scope of the statute. Universality in application was only a part of a definition of local and special laws, but importantly, universality in application was not by itself a sufficient reason to make a statute unconstitutional. See, for example, State ex rel. Van Riper v. Parsons, 40 N.J.L. 1, 11 Vroom 1, (Sup.Ct. 1878), where the court said that "[t]he term `general law' does not import universality in the subject or operation of such law." In other words, while it is true that a law that operates universally in a state is a "general law," a law is not necessarily special or local because it operates less than universally.
See also T. Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law, 534-536 (J. Pomeroy 2d ed. 1874 photo. reprint 1980), (citations to, and explanations of, opinions from various states, and including a discussion of the principle that a general law need not operate universally); 1 T. Cooley, Constitutional Limitations, 258-264 (8th ed. 1927), (citations to various states, including a quote from City of Sapulpa v. Land, 1924 OK 92, 223 P. 640, 35 A.L.R. 872 stating that a general law need not operate on every locality of the state).
¶ 14 In pre-1900 special-law and local-law jurisprudence, a legislature generally possessed power to create law that discriminated in some circumstances between the municipalities in a particular state.
The immediate effect of the prohibition is to prevent any legislation from being passed directly and expressly in regard to any one or more particular corporations, the intention of the Constitution being that whatever powers any corporation should have for the purpose of its corporate existence should be granted on the same terms to all similar corporations, but the legislature is allowed to judge both as to what differences exist between corporations and what powers they shall possess. It cannot, however, discriminate between corporations of the same kind. All railroad companies must have the same powers; all cities where the same circumstances exist must have the same form of government; no law can be passed in regard to a single street or ward in a city. The stop thus put to discrimination is beneficial as far as it goes, but it is not a complete stop, nor is discrimination the only danger to be avoided.
Charles C. Binney, Restrictions upon Local and Special Legislation in State Constitutions, 12 (1894), (emphasis added).
A legislature retained the power to determine circumstances that justified different or discriminatory treatment in laws that applied to some but not all cities in a state.
In the case of municipal corporations and rural local government also, the prohibition of special legislation works fairly well in the great majority of instances. Most cities, and probably all boroughs, villages, towns, counties, etc., can, for the purpose of their government, be grouped into a few classes, the members of which do not differ greatly from each other in size or other distinctive characteristics, so that a law for one class can reasonably be expected to work equally well for every member of the class; while, if it works ill, it is almost certain to do so in every case, and that for some cause which lies deeper than the mere fact that the law is general. The number of places necessarily affected by a law prevents, moreover, the enactment of laws designed in the interest of one place only. If such a law be against the interest of the other communities affected by it, they will oppose its passage, and thus the unfair grant of special privileges will be prevented.
In every State, however, there are cities which differ so widely from others that they must be classed by themselves, and a law for a class which though theoretically capable of enlargement actually contains but one or two members, is practically a special or local law, even if it be legally general. In such cases the prohibition is to a great degree inoperative, and as regards all strictly municipal matters which concern the whole city, special legislation goes on as before, and with the same results. The legislature cannot indeed order the paving of a particular street or in other ways legislate directly for special parts of the city, but it can create and abolish particular offices, direct how the clerks in any special city department shall be appointed, and in many ways regulate the affairs of a single city just as if no prohibition of special legislation existed.
Binney, Restrictions upon Local and Special Legislation in State Constitutions, at 14-15, (emphasis added).
¶ 15 The construction placed by other state courts on similar state constitutions, as well as the Territorial Court's construction of the federal statute, were known by the framers of our Constitution. Chickasha Cotton Oil Co. v. Lamb and Tyner, 1911 OK 68 ¶ 11, 114 P. 333, 336. One of our early opinions was Territory of Oklahoma v. School District No. 83, 1901 OK 22, 64 P. 241. In Chickasha we distinguished between special and local laws and performed a separate analysis for both. We defined a "local law" and concluded that the provision at issue was a local law. We then concluded that the provision was also a special law.
We defined a local law as one "which in its subject relates but to a portion of the people of the state or their property; and may not, either in its subject, operation or immediate and necessary results, effect the people of the state, or their property in general." Territory of Oklahoma v. School District No. 83, 1901 OK 22, ¶ 5, 64 P. 241, 243, quoting, Clark v. City of Janesville, 10 Wis. 136, at 136-179 (1859). We also said that a "local law" is "confined in its operation to the property and persons of a specified locality." Id. 64 P. at 243, ¶ 7, quoting, People v. O' Brien, 38 N.Y. 193 (1868).
Territory of Oklahoma v. School District No. 83, 1901 OK 22, 64 P. 241 (act was a special law when it created a school district apart from the general school law of the Territory for creating school districts).
¶ 16 The difference between "local" and "special" became minimized after the enactment of the Constitution when the Court distinguished general laws from local or special laws. One reason for this is that a "local law" is a type of "special law." School Dist. No. 85 v. School Dist. No. 71, 1928 OK 689, ¶ 26, 276 P. 186 ("Special laws are not all local, but all local laws are special."). This concept is also observed in Art. 5 §§ 32 and 59. A "local law" referred to in § 32 is a type of "special law" prohibited by § 59, but that local law may pass constitutional muster upon the Legislature's compliance with § 32.
See, e.g., State v. Dist. Court of Mayes County, 1967 OK 228, 440 P.2d 700 (local and special laws distinguished from general laws), overruled on other grounds in Palmer v. Belford, 1974 OK 73, 527 P.2d 589, 591.
¶ 17 With this background in mind, I now turn to our opinions on this subject for the purpose of showing that they are consistent with this authority.
III. § 46 OKLAHOMA OPINIONS
¶ 18 In Guthrie Daily Leader v. Cameron, 1895 OK 71, ¶ 30, 41 P. 635, we said about the federal statute's pre-§ 46 language: "This limitation amounts to an absolute prohibition on the legislature enacting any special law in reference to the subjects enumerated." Id. 41 P. at 638. I agree that this applies to the current § 46. But what is a special law?
¶ 19 In Lowden v. Oklahoma County Excise Board, 1940 OK 134, 100 P.2d 448, we addressed claims resting upon Article 5 §§ 32, 46 and 59. In the context of a tax protest a party asserted that levies for the purpose of funding certain public offices (county public defender and probation officers) were illegal because the statutes creating the offices violated Article 5 §§ 32, 46, and 59. The statutes at issue applied to counties having a population of 200,000 or more and containing a city of 175,000 population or more. Oklahoma County and Oklahoma City was the only locality that fit the statutes.
¶ 20 One party argued that § 46 prohibited the passing of a local or special law regulating the affairs of a county. Id. at 450. On addressing the claim, we said:
Our attention is directed to Roberts v. Ledgerwood, 134 Okl. 152, 272 P. 448, 450, in which is found quotations from the early case of Burks v. Walker, 25 Okl. 353, 109 P. 544, as follows: "In order for a law to be general in its nature and to have a uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may be general and have a local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted. * * * But where a statute operates upon a class, the classification must not be capricious or arbitrary and must be reasonable and pertain to some peculiarity in the subject-matter calling for the legislation. As between the persons and places included within the operation of the law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination." . . .
This general rule is stated in 59 C.J. 760, as follows: "The fact that at the time a statute is enacted one municipality only falls within the classification fixed thereby will not cause the statute to be regarded as special or local if the classification is founded in reason and general in terms; but will, if the classification is arbitrary and illusory; the test being whether other municipalities from time to time may be included, or are permanently excluded. * * *"
Under the authorities coming to our attention upon this consideration it appears that we must be able to say that the classification of counties by population in these acts is clearly capricious and arbitrary before we would be justified in holding that these constitutional provisions were violated — that such classification by population is wholly unrelated to the objects of the acts.
It is suggested that counties of larger populations composed substantially of urban population are faced with greater need for the type of services provided by these legislative acts, than are the more sparsely populated counties. That suggestion is not wholly without merit, and must have guided the Legislature in adopting the classification selected. We know in common with others that the courts within counties coming within the classification present here have much more need for the services of the agencies here provided than counties with less congestion of population. The congestion of population is closely related to the object to be attained by the legislation. This basic principle operates uniformly throughout the state. We, therefore, affirm the judgment of the Court of Tax Review.
Lowden, 100 P.2d at 450, (citations omitted and emphasis added).
¶ 21 The Court's opinion in our case today states that a § 46 claim does not require an analysis of whether the Legislature acted in an arbitrary or capricious manner as a part of defining whether an act is a special or local law. But our analysis in Lowden v. Oklahoma County Excise Board, supra, shows that the Court's statement is incorrect.
¶ 22 Lowden serves as an example of the Court treating a "special law" for the purpose of § 46 as identical to a "special law" for the purpose of § 59. Whether the classification drawn by the Legislature is reasonable is part of defining whether a particular law is special, local, or general. Section § 46 prohibits only special and local laws, but whether a particular law is impermissibly special or permissibly general necessitates a determination of whether the Legislature's classification is reasonable.
¶ 23 In Barrett v. Board of County Commissioners of Tulsa County, 1939 OK 68, 90 P.2d 442 the Court addressed an Art. 5 § 46 claim. The statute at issue gave judgments rendered in federal courts an effect that was not provided to judgments of state courts. We said:
¶ 14 Section 46 of article 5, Oklahoma State Constitution, prohibits the passage of local or special laws" providing or changing the method for the collection of debts or the enforcement of judgments," and section 59 of article 5 provides, "that laws of a general nature shall have a uniform operation throughout the state and where a general law call be made applicable, no special law shall be enacted."
¶ 15 That the law now before us (chapter 51, S.L. 1925) is one providing methods for the collection of debts and the enforcement of judgments is self-evident. Is it then a valid general law or an invalid special law?
¶ 16 It is not necessary, in order that a law be general and uniform in its operation (as contemplated by section 59, article 5, supra) as distinguished from special (as prohibited by section 46 of article 5), that it operate universally and alike throughout the state upon all persons or things. On the contrary, the Legislature may by the adoption of a classification limit the scope of its application without offense to constitutional inhibitions, if the classification or limitation so adopted is neither arbitrary nor capricious, and bears a reasonable relation to the object of the legislation.
¶ 17 When a law which is not universal in its operation is adopted it must, in order to avoid the stigma of special legislation, satisfy the test adopted by this court. In School District No. 85, Kay County, v. School District No. 71, Kay County, 135 Okla. 270, 276 P. 186, where we said in paragraph 4 of the syllabus:
"Local or special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class that they should naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect."
¶ 18 Similarly it was said in paragraph 1 of the syllabus in Roberts et al. v. Ledgerwood et al., 134 Okla. 152, 272 P. 448, that:
"In order for a law to be general in its nature and to have uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may be general and have a local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted. But where a statute operates upon a class, the classification must not be capricious or arbitrary and must be reasonable and pertain to some peculiarity in the subject matter calling for the legislation. As between the persons and places included within the operation of the law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination."
¶ 19 Does the act before us constitute special legislation within the tests prescribed by the foregoing decisions? Superficially the statute prescribes a special method for the enforcement of a particular class of judgments, namely those rendered by federal courts. Incidentally it may be noted at this point that the act neither attempts nor purports to authorize the federal court to adopt a different procedure in the collection of judgments than that which would otherwise obtain. Its directions go to county officials. It prescribes a method by which they shall act to enforce the judgments embraced within the provisions of the act. Their right and duty to act, if the law be valid, arises from the legislative mandate independent of any direction by the federal court. By the terms of the law, the federal court judgment is merely a prerequisite to an exercise of the power attempted to be conferred upon the county officials. Thus the law here involved is distinguished from those legislative acts which provide for variations in the procedure applicable to different classes of courts (as distinguished from courts of the same class) throughout the state which may be valid. See discussion in City of Sapulpa v. Land. 101 Okla. 22, 223 P. 640, 35 A.L.R. 872.
Barrett v. Board of County Commissioners of Tulsa County, 1939 OK 68, at ¶¶ 14-19, 90 P.2d at 446-447, (emphasis added).
¶ 24 A § 46 challenge was raised. Id. at ¶ 14. The Court noted that the matter involved a statute for methods enforcing a judgment. Id. at ¶ 15. Section 46 prohibits local and special laws on the subject of "Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings . . . or providing or changing the methods for the collection of debts, or the enforcement of judgments. . . ."
¶ 25 The court then said that the question presented was whether the challenged law was general or an invalid special law. Id. at ¶ 15. How did this Court proceed? It said that the Legislature could make classifications that were not arbitrary or capricious. Id. at ¶ 16. It then said that the challenged law had to satisfy the test explained by the Court in School District No. 85, Kay County, v. School District No. 71, Kay County, 1928 OK 689, 276 P. 186. Barrett at ¶ 17.
¶ 26 Our opinion in School District No. 85, Kay County, supra, did not involve a claim pursuant to Art. 5 § 46, but Art. 5 § 59. Id. 1928 OK 689 at ¶ 19 and following. In other words, in Barrett, we said that to determine if an act was an invalid special law for the purpose of § 46 the Court must follow its language in the previous opinion explaining a "special law" for the purpose of Art. 5 § 59.
¶ 27 In Barrett we then quoted from Roberts et al. v. Ledgerwood, 1928 OK 723, 272 P. 448. Roberts is not a § 46 controversy, but one involving Art. 5 § 59. Roberts, at ¶ 4 and following. Again in Barrett we quoted from a § 59 controversy for determining an invalid special law pursuant to Art. 5 § 46. Barrett then concluded that the law was an invalid special law for purpose of both Art. 5 § 46 and § 59. Id. at ¶ 0. This conclusion makes sense because the court was using the same definition for "special" for both § 46 and § 59. Barrett serves as an example of the Court using its § 59 opinions to define a special law for the purpose of § 46.
¶ 28 In Wilkinson v. Hale, 1939 OK 11, 86 P.2d 305, the Court determined that the challenged legislation violated Art. 5 § 46 "by reason of the arbitrary and capricious nature of the classification therein adopted." Id. at ¶ 0. The Court did not expressly conclude that § 59 was violated, although a § 59 challenge was made. Id. at ¶ 7. Wilkinson, like the Court in Barrett, discussed classifications made by the Legislature, noting that a "classification so adopted must be neither arbitrary nor capricious and must bear a reasonable relation to the object to be accomplished. 1939 OK 11, ¶ 10. But the classification was unreasonable, and thus § 46 was violated. In any event, the reasonableness of the classification was evaluated by the Court in the context of a § 46 challenge.
IV. REYNOLDS v. PORTER
¶ 29 In Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, the Court stated that if a statute is a special law the Court need not consider the law's reasonableness. Id. at ¶ 17, 760 P.2d at 822-823. The Court need only determine for a § 46 analysis whether the statute upon a subject listed in § 46 "targets for different treatment less than an entire class of similarly situated persons or things." Id. at ¶ 17, 760 P.2d at 823, emphasis deleted. Thus, every § 46 claim involves identifying a class.
¶ 30 In a circumstance involving "limitations," a subject listed in § 46, Reynolds stated:
The § 46 subject dealt with in the three-year restriction under inquiry here is the limitation of a civil action. In determining whether the statute operates on an entire class of actionable claims that are similarly situated, we identify the class by reference to the general legislative scheme of limitations patterned after the English legal tradition that includes the common-law gloss.
¶ 31 Does Reynolds mean that the Legislature may not discriminate between different types of actions? Must all actions have the same limitations period? Of course not. The class was not the subject "limitations" but the classifications found in the law relating to limitations. The Framers of § 46 knew the difference between a tort and a contract and how different limitations were enacted for them. In Reynolds we merely identified "negligent tort claims" as a class from which the Legislature could not create subclasses for the purpose of limitations. Id. at ¶ 18, 760 P.2d 823.
¶ 32 In sum, in Reynolds we discussed the common-law classifications for limitations, and this was proper because the Framers knew of these classifications for limitations. Section 46 is about classification. The Court's opinion is silent relating to the common-law involving the classification of cities by population.
¶ 33 Oklahoma's first Legislature contained members who knew the Constitution. Classifications for cities based upon population were common at this time and were codified in the statutes of the first Legislature. Classification based upon population for incorporation and organization was expressly allowed by the Constitution in Article 18. There were cities of the "First Class" having a population of 2,000 or more. General Statutes 1908, § 699. Beyond organization according to population, the Legislature was concerned with the salaries of city officials such as the city attorney, police judge, and treasurer in cities with a population in excess of 25,000. Id. at § 839. The Legislature was also concerned with the public contracts of cities with a population in excess of 25,000. Id. at §§ 844-847. Many examples may be found of our Legislature using population of cities for application of particular statutes. For example, in Isaacs v. City of Oklahoma City, 1966 OK 267, 437 P.2d 229, cert. denied, 389 U.S. 825, 88 S.Ct. 63, 19 L.Ed.2d 79 (1967), this Court upheld the constitutionality of urban renewal laws that applied to cities with a population in excess of 100,000.
For example, the Speaker of the House in the First Legislature was William H. Murray, the former President of the Oklahoma Constitutional Convention. E. McReynolds, A. Marriott, and E. Faulconer, Oklahoma: The Story of its Past and Present, 314 (1961); 2 W. Murray, Memoirs of Governor Murray and the True History of Oklahoma, §§ 173-236 (1945).
Edmonds v. Town of Haskell, 1926 OK 289, 247 P. 15, 17. In Edmonds, Art. 5 § 46 was also raised when this Court stated that express authority existed pursuant to Article 18 § 1 to create a statute for cities with a population in excess of 1,000 to pave streets and make assessments therefor, and then stated that: "The act in question cannot be said to be more than a reasonable and fair classification of towns in proportion to their population, and a grant of the same privileges to all towns of the same class." Id. 247 P. at 17-18.
¶ 34 In summary, if the Court wants to follow Reynolds, it should discuss the classifications historically recognized in the law for cities for the purpose of legislation, and one of these is the classification of population.
¶ 35 Art. 5 § 46 was meant to work with the long-held dichotomy of local (municipal) versus general (state) interests. When Dr. Merrill explained the division of authority between matters of municipal and state concern, he contemplated the power of the Legislature constrained by Art. 5 § 46. Merrill, Constitutional Home Rule for Cities: Oklahoma Version, 5 Okla.L.Rev. 139, 158 (1952). Why is a matter of state concern as opposed to a matter that is merely an affair of cities or towns?
Labor relations and the conditions of industrial employment may be of more than local significance. There are elements, such as competition between localities, the effect of conditions in one locality upon the general economy, the impact of industrial disturbance and strife upon the public order, which seem to bring the "wider interest" of the state into dominance in this area. What few cases there are in Oklahoma support the claim of the state to superiority. Thus a home rule city has been held incompetent to forbid peaceful picketing, as an incident to a labor dispute, in the face of a state law permitting such picketing. Even in respect to the conditions of labor upon municipal public works, state regulation has been upheld on the ground that "regulation of the hours of labor is a state function, designed to promote the general welfare of all the people of the state, which has not been and possibly cannot be delegated to a municipality."
Id. at 171-172.
Certain labor relations are a matter of state significance. See State v. Tibbets, 21 Okla.Crim. 168, 205 P. 776 (1922), where a statute fixing the hours of labor performed on public work, and providing that the compensation paid shall conform to the wage paid for like labor in that locality was held not to violate the Constitution. Certainly, the statute at issue pertains to municipalities, but whether it regulates the affairs of a municipality versus implementing the affairs of the State is a question the Court should address.
The concurring opinion notes that counsel stated that the provision at issue regulated the affairs of a city. Counsel's statement is a conclusion of law, and this court is not bound by counsel's opinion on a legal conclusion involving the constitutionality of a statute involving the structure or function of government. State ex rel. State Ins. Fund v. JOA, Inc., 2003 OK 82, ¶ 23, 78 P.3d 534, 540 — 541. The issue before us involves the structure of government, i.e., the respective powers of the state and cities.
¶ 36 The opinion today will tie the hands of the Legislature when it seeks to protect "state interests" involved in labor relations. The Court's opinion denies to the Legislature the power to make rational classifications based upon municipal population for the purpose of protecting these interests, despite the fact that state legislatures have been making population classifications since before the creation of our Constitution. The Framers of our Constitution knew of these population classifications that protected state interests.
¶ 37 I respectfully dissent from the Court's opinion because it is contrary to the intent of the Framers of the Constitution and contrary to the Constitution; because the common-law classifications for cities are not considered and thus Reynolds v. Porter is not followed; and because it relegates the issue of collective bargaining in the pursuit of labor-management justice and peace — recognized by our Legislature to be of manifest state interest — to a simple affair of cities and towns, optional to each of them, regardless of the number of people affected.