Jacobs Ranch, L.L.C. v. Smith

KAUGER, J.,

with whom WATT, C.J., and EDMONDSON, J., join, concurring:

¶ 1 I agree with the majority that the statutes in question are not unconstitutional. This result is governed by our precedents beginning in 1909 with Burks v. Walker, 1909 OK 317, ¶ 23 , 109 P. 544 in which we said:

“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 subjects within the class for which it was adopted. To determine whether or not a statute is general or special, courts will look to the statute to ascertain whether it will operate uniformly upon all the persons and parts of the state that are brought within the relation and circumstances provided by it. People ex rel v. Hoffman, 116 Ill. 587 [, 5 N.E. 596 , 8 N.E. 788 (1886)]; Nichols v. Walter et al., 37 Minn. 264 , 33 N.W. 800 . And the operation is uniform if it affects alike all persons in like situation. 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. Nichols v. Walter, supra.”

¶ 2 The Burks test was very recently reaffirmed in City of Enid v. Public Employees Relations Board, 2006 OK 16, ¶ 15 , 133 P.3d 281 . There the question of what constituted a class for the purposes of determining whether a legislative enactment was a special law barred by the Oklahoma Constitution, art. 5, § 46 was considered. We said in ¶ 15:

“Thus, in Burks , the Court created a two-part, rational-relationship test to determine whether a population-based classification was a special or general law. The Court has used this test in numerous eases involving constitutional challenges to population-based legislation under Okla. Const., art. 5, §§ 46 and 59.”

In both Burks and City of Enid , the Court noted the application of the two-part test applied regardless of whether the classification is challenged under the Okla. Const. art. 5, §§ 46 or 59 or both. In City of Enid , the number of cities which fell into the classification was immaterial because the test for constitutionality is not numerical, but rather whether the classification is clearly capricious, arbitrary, and wholly unrelated to the Act. The same test applies here, also making the fact that there is only one ground water basin designated by the EPA as a “Sole Source Aquifer” wholly immaterial to the law’s uniform operation throughout the state. 1

. To hold otherwise in City of Enid would have effectively nullified at least 51 population-based legislative enactments that regulate the affairs of counties, cities, towns, wards and school districts, some of which have been on the books since just after statehood. For statutes requiring the classification of cities, towns or counties by population, see e.g., 11 O.S. Supp.2004 § 28-101 (Creating a municipal criminal court of record in cities with population greater than 65,000.) [Predecessor statute declared valid as a general law in Buchanan v. State, 30 Okla.Crim. 362 , 236 P. 903 (1924)]; 20 O.S.2001 § 1201 (County law libraries in counties of greater than 300,000 to be operated in accordance with rules promulgated by the Supreme Court.); 11 O.S.2001 § 27-104 (Prohibiting municipal judges in cities with population greater than 200,000 from otherwise practicing law.); 11 O.S.2001 § 44-103 (Requiring Board of Adjustment in cities with population over 200,000 to meet at least twice per month.); 11 O.S.2001 § 45-102 (Members of municipal planning commission in cities with population over 200,000 entitled to per diem.); 11 O.S.2001 § 29-203 (Size of volunteer fire departments set by population.); 11 O.S.2001 § 22-116 (Municipality with population of more than 350,000 has jurisdiction over all property within its limits belonging to the municipality, and may enact ordinances regulation real property it owns outside its corporate limits.); 2 O.S.2001 § 15-69 (Requiring board of directors of fair boards in counties with population of more than 55,000 to hold additional county fairs and stock shows.); 63 O.S.2001 § 1-203 (Setting minimum salary for county superintendent of health by popula *859 tion of county.); 63 O.S.2001 § 1-210 (Creating city-county board of health in counties with population of more than 225,000, which contain at least one city of more than 150,000 people.); 62 O.S.2001 § 385 (Cities, counties, townships and school districts with population between 200,000 and 300,000 may pay bonds on which the statute of limitation has run.); 62 O.S.2001 § 331 (Requiring cities with more than 30,000 population to budget and levy for their Park Budget Account.); 51 O.S.2001 § 10 (Prohibiting appointments to fill vacant county offices only in counties with a population of more than 600,000.); 50 O.S.2001 § 42 (Defining allowed cemetery placements by population of nearest city, and exempting cities with population over 300,000 from statutory requirements where such a matter would be covered by a city planning commission.); 28 O.S.2001 § 1103.1 (Exempting counties with a population of more than 400,000 from hiring an executive director for economic development program.); 11 O.S.2001 § 16-302 (Municipalities with less than 1,000 population and no charter required to elect officers and consider initiative questions and biannual meeting, unless otherwise set of a regulation election.); 11 O.S. 2001 § 34-101 (Setting maximum number of hours a reserve police officer may work by the size of the municipality.); 12 O.S.2001 § 1206.1 (Excluding municipalities of less than 60,000 from having to contribute financially to the acquisition of rights-of-way for state highways.); 65 O.S.2001 § 158.1 (Limiting powers of libraiy commission in counties with less than 200,000 persons.); 65 O.S.2001 § 4-206 (Setting minimum qualifications of librarians based on population of the county in which the libraiy is located.); 65 O.S.2001 § 1-104 (Defining types of libraries by the population of their location.); 19 O.S.2001 § 11 (Minimum population for the creation of a new county.); 3A O.S.2001 § 207 (Municipalities with a population of less than 1,000 not to receive horse racing tax proceeds.); 11 O.S.2001 § 17-105 (Municipalities with more than $25,000 in income but less than 2,500 in population held to less stringent accounting standards then municipalities with more than 2,500 population.); 19 O.S.2001 § 215.36 (Requiring counties with more than 300,000 population to furnish District Attorney with equipment and personal to create a computer based microfilm service.); 19 O.S.2001 § 1202 (Defining "rural”, for the purposes of the Rural Ambulance Service Districts Act, as a municipality with a population of less than 8,500.); 27A O.S.2001 § 2-5-103 (Requiring cities of less than 300,000 to obtain prior approval as to feasibility before enforcing stricter municipal clean air standards.); 27A O.S.2001 § 2-10-1001 (Approval of applications for a solid waste management station by counties with less than 20,000 population requires previous placement on a county plan.); 62 O.S. Supp. 2004 § 842 (Using county population to set formula for maximum amount of funds available to the county under the Oklahoma Local Development and Enterprises Zone Incentive Leverage Act.); 62 O.S. Supp.2005 § 856 (Using different funding formula under the Local Development Act depending on whether or not the city has more or less than 50,000 population.); 62 O.S. Supp.2003 § 885 (Housing reinvestment districts may only be created in cities and counties with population of less than 300,000.); 62 O.S.2001 §871 (Defining municipality for the purposes of the Oklahoma Rural Housing Incentive District Act as a city or town with a population of less than 40,000 in a county with a population of less than 75,000.); 62 O.S.2001 § 2102 (Defining community for the purposes of the Industrial Facilities Development Act as a county, city, town or place with a population of less than 7,000.); 11 O.S. Supp.2004 § 2-104 (Making population classification for the purposes of determining what territory may be created in a plat for a new municipality.); 11 O.S. Supp.2004 § 3-101 (Requiring petition for a new town to contain "the appropriate documentation to prove the territory within five miles of the corporate limits of a municipality having a population of more than 200,000 has historically been identifies as a community of people residing in compact form”.); 2 O.S.2001 § 15-113 (Requiring city of 20,000 or more to have representation on county fair board.); 63 O.S. Supp.2005 § 2843.1 (Providing for suspending the collection of the required wireless 911 fee in counties with a population of less than 30,000 where the public agency has not yet deployed service.).

For statutes permitting, but not requiring, different action based on a population classification. See e.g., 11 O.S.2001 § 39-103.1 (Permitting, but not requiring, municipalities with a population greater than 1,500 to create and levy for improvement districts.); 19 O.S.. Supp.2004 § 339.6 (Permitting, but not requiring, only commissioners in counties with a population greater than 500,00 to set a juvenile curfew to apply to unincorporated areas of the county.); 11 O.S. 2001 § 13-101 (Permitting, but not requiring cities or towns with a population equal to or greater than 2,000 to frame a charter.); 10 O.S. 2001 § 1050A (Authorizing the appointment of an assistant juvenile officer only in those counties having a population between 24,000 and 40,000.); 18 O.S.2001 § 1324.2 (Defining "rural area” for the purposes of the Rural Water, Sewer, Gas and Solid Waste Management Districts Act as an area that "may” include portions of a corporate limit of any municipality having a population of less than 10,000.); 20 O.S.2001 § 1304A (Permitting, but not requiring, the district courts in counties with a population of greater than 200,000 to publish their dockets in a daily newspaper paid for by the court fund.); 19 O.S.2001 § 951 (Authorizing counties with a population of-greater than 3000,000 to create a county retirement system.); 19 O.S.2001 § 941 (Authorizing counties with a population of greater than 300,000 to install and operate county parking lots.); 19 O.S.2001 § 565.1 (Authorizing county sheriff in counties with a population of greater than 40,000 to establish and operate a bureau of identification.); 68 O.S. Supp.2002 § 1370.9 (Permitting only counties with a population of less than 200,000 to levy a lodging tax *860 of up to 5%.); 20 O.S.2001 § 1202 (Law library trustees in counties with a population of greater than 300,000 authorized to suspend or change the amount of payments to the State Law Library Revolving Fund.); 19 O.S.2001 § 547 (Setting maximum number of hours county reserve sheriffs may work by population of the county.); 19 O.S.2001 § 645 (Town or city having less a population of less than 5,000 may designate county treasurer has the official treasurer of the town or city.); 11 O.S. Supp.2004 § 36-113 (Board of County Commissions may construct, improve, repair or maintain streets in municipalities having population of less that 5,000, and in municipalities of less than 15,000 if the county has a sales tax earmarked for road repair.); 11 O.S.2001 § 37-223 (Municipalities of less than 2,500 may pay for their share of school assessments with building bonds or the proceeds of a building tax levy.); 19 O.S. Supp.2004 § 215.30 (Counties with population of 400,000 or more permitted to supplement the county District Attorney’s salary.).

It arguably would have voided at least an additional 19 statutes in which the legislature has made a distinction based on population for the purpose of facilitating state services through counties or cities. See e.g., 17 O.S.2001 § 40.1 (Corporation Commission required to establish a regional office in each municipality having a population greater than 250,000); 68 O.S. Supp. 2005 § 2887 (Exempting retirement communities in municipalities with a population of greater than 500,000 from the payment of ad valorem taxes.); 19 O.S.2001 § 866.1 (Counties in which there is no city of more than 200,000 may created a county planning and zoning commission.); 74 O.S.2001 § 2901.2 (Providing that between 65% and 75% of the expenditures from the Oklahoma Housing Trust Fund shall be made in counties with a population of less than 490,000.); 75 O.S. Supp.2004 § 503 (Requiring the Governor and Lt. Governor to each appoint a member of the small business regulatory committee from municipalities with a population of 300,000 or more, and the President Pro Tempore of the Senate and the Speaker of the House to each appoint one member from municipalities with a population of less than 300,000.); 74 O.S.2001 § 5013.2 (Giving preference in the expenditure of funds from the Minority Business Development Program Fund to applicants with an ability to aid minority owned businesses located in communities with populations of less than 10,000.); 74 O.S.2001 § 910 (Requiring all counties with a population of less than 400,000 to become a participating employer in the Oklahoma Public Employees Retirement System no later than January 1, 1974.); 74 O.S.2001 § 480 (Creating seats on the Advisory Committee on Intergovernmental Relations which may only be filled by officers from municipalities meeting certain population requirements.); 69 O.S.2001 § 316 (Including all roads within the incorporated limits of a municipality with a population of less than 2,500 in the certification of county road mileage.); 68 O.S. Supp.2005 § 3604 (Permitting municipalities with a population of less than 100,000 to receive up to 25% of the amount of a payment to a qualified establishment in the municipality under the Oklahoma Quality Jobs Program Act.); 68 O.S.2001 § 706 (Portioning special fuel tax revenue by population.); 68 O.S. 2001 § 500.7 (Apportioning diesel fuel tax revenue by population.); 68 O.S.2001 § 500.6 (Apportioning gasoline tax revenue by population.); 36 O.S.2001 § 6220.1 (Adjusters in municipalities with less than 6,000 population are not prohibited from having pecuniary interest in entity providing reconstruction services.); 47 O.S. Supp.2005 § 1140 (Classifying counties and municipalities by population for purposes of placing motor vehicle agents.); 59 O.S. Supp.2004 § 567.4 (Requiring at least members of the Oklahoma Nursing Board to be from counties with less than 40,000 population.); 63 O.S. Supp.2004 § 142.4 (Municipalities of less than 3,000 population exempt from filing fees under the Underground Facilities Damage Prevention Act.); 19 O.S.2001 § 901.57 (Calculating formula for the distribution of funds under the Rural Fire Protection Program Fund Act by population.).