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City of Enid7/5/2005
muster upon the Legislature's compliance with § 32.
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
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?
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.
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 pr
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