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City of Enid7/5/2005
erfuge under art. 5, § 59).
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.
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 , 527 P.2d at 17.
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.
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 and 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 .
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, , 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).
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, , 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.
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.
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