*1 liability expended incurred the -sums of Qualls, v.
therefor.” Missouri Pac. Co. R. 774. 250 P. judgment is affirmed
The trial court’s
so far as it affects defendant Continental defendant Company but as to
Oil reversed directions
Esau is remanded with and cause trial as to Esau. grant new plaintiff al., Applicants,
Walt ALLEN et BURKHART,
William A. State Treasurer of Oklahoma, al., Respondents. the State of et
No. 40364.
Supreme Court of Oklahoma.
Dec. 1962.
Rehearing 15, 1963. Denied Jan.
As Corrected Jan. *2 Arnote, Tulsa, Hays,
N. and Walter J. McAlester, amici curiae. Asst, Hansen, Acting
Fred First *3 Atty. Gen., respondent Q.Mac for William- son.
WILLIAMS, Chief Justice. Applicants original have brought judicial action seeking a determination that 271, Initiative Petition No. State No. proposed a constitutional amendment, approved legally was not vote people on Novem- of Oklahoma ber 1962. proposed
If such
approved
ap
they ask the issuance of
propriate
protect
writs
their claimed
rights.
jurisdiction
This court has
proper proceeding
determine whether the
Constitution has
State ex
been amended.
Hayman et al.
Board
v. State Election
rel.
(1938),
et al.
862.
75 P.2d
Okl.
presented
The matter here
for
consid
our
poses
problem pub
important
eration
have, therefore,
juris
law.
lic
We
assumed
appellants’
diction
action.
first cause of
ex rel.
See State
Williamson et al. Car
al.,
948, 949,
ter et
59 P.2d
State ex
Carrier v. State Election
rel.
Oklahoma, Okl.,
Board
Treasurer, Sec- William N. n 408, Okl., tion No. 1017. retary of State. present case our concern In the is wheth- Rejmolds, City, for Oklahoma Norman E. ap- er the amendment therein Howard Edmond- respondent Honorable J. proved. of Oklahoma. son, Governor Constitution, Ledbetter, In our State Halley, H. H. E. P. John John Lybrand, Crowe, Legislative Cantrell, A. vested au Walter V. P. Hamilton, Pawhuska, But, thority of the State. City, S. Art. W. Oklahoma power Plolliman, section, they reserved the Duffy, M. Bar- same P. Charles John amendments, Gable, propose tlesville, Logan, Ellis Con- G. Garrett laws Jack n reject the dum .stitution and to against enact .shall be demanded n polls independent Legislature. passed Legislature, ' same shall be submitted to Also, Constitutional XXIV, in Article approval , their rejection again Amendments, by Section next regular election; provided, expressed right the Consti- to amend power, shall dis- his. tution therefor. petition cretion, to call to vote opinion re- Much our discussion in this questions, designate or to perti- lates to V. Section 3 of Article the mandatory primary election as part nent it is as follows: *4 special election purpose.” for such “ * ** measures All elections on From an portion examination of a people referred to State shall the of the Section 3 V, quoted, Article above be held had the next election be to seen that submit State, except when the the a measure such as the (constitutional item Governor, or- Legislature or shall presently amendment) here involved to express der a election for the vote people of the either at “the next elec- purpose of such reference. making tion held throughout the State” or aat people by Any measure referred to the special election ordered express “for the be take and initiative effect shall (cid:127) purpose of making such reference.” ap- in been when it shall have force homa Statutes cle carrying ple. Pursuant wise. able who shall submit the same to tive and for the referendum the votes cast filed addressed take proved by majority V, “Petitions such election. provisions provisions effect with the The been into effect people body to the Legislature and approved by majority of “make suitable the Governor of has by of this article.” be Secretary thereon Any duty imposed upon orders for the referendum in force enacted Title 34 Okla Initiative carrying provisions” measure shall and not other- when make into effect State and votes cast shall be referred it shall initia- State, shall Refer suit- peo- Arti Art. jority of the votes cast when it an initiative both language al. v. 950. 25, provides that such measure tion does an initiated submitted ant to the be had at the next election 1961 1. See State ex rel. Williamson the State It will differ, as V, denote * * Carter et It is to be noted that reference of ." designated shall have Sec. 3 contained in these two [*] * * terms of * * * measure measure *.” recalled phrases above next al., supra, Although been and defined in 26 O.S. ”, while 34 O.S.1961 § Art. to regular general quoted are take effect approved the electors next V,. in such election synonymous another 59 provided regular .throughout descriptive provisions “shall “ part * * pursu a ma “shall elec elec- p. et * implement 66, vitalizing and endum 1 to §§ In the State case, ex supra, rel. Carrier parte ing Wagner, the Article. See Ex there was involved a determination 435, 18 33, 95 P. Ann.Cas. Court as to whether the affirmative vote al., Simpson Hill et 128 Okl. 263 P. on an measure, as 635, 644, A.L.R. (cid:127)distinguished from majority of the votes provides: 34 O.S.1961 § general' -cast .the 1956 “Whenever, any upon, measure shall be in- measure voted was sufficient approval itiated the manner for the of an by law, Congressional vided- or whenever the referen- Redistricting Statute. some ballots), spoiled deducting therefrom paragraph In the third 27,000 or more. held: case we syllabus of such 1962, pro- November an initiated adopted, "In order to have n proposed measure claimed the people for measure, approved by the as a rejection at a adoption or proclamation, Poliowing amendment. vote tion, an affirmative receive must Apportionment Legislative Commission (cid:127) casting the electors an Order promulgated convened said their vote in- and, Apportionment, provided 3.” Constitution, Article Section measure, itiated the same with filed Court" hand, in that case On the Secretary of State. said: further Respondents insist e. the date (i. “If this latter situation” question special elec- was voted same date of submission is the tion. pri- primary or runoff upon which a hand, applicants assert that On the other the vote held) “prevails, mary being *5 lawful author- Governor acted without separate measure is on the -initiated attempted ity purportedly calling in irrespective election, independent special They assert that the Con- being elections election or of the Other power upon stitution conferred no the Gov- approved To be simultaneously held. special upon ernor to call a election n need adopted thereat the measure upon day initiated measure for and which only majority of the votes receive coincidentally regular general particular election on the cast in that day thereby, as to item of particular submitted.” measure so especial him, interest to convert such special election Governor, into a one. September On in- petition with reference They argue that this was sub- (a) case, proclaimed that volved in general mitted election Question “shall be submitted No. 6, 1962,by operation on November direct * * * qualified for their electors law. approval rejection special election or Simpson Hill, In the case of * * * 1962”, on November to be held supra, this court said: are (b) the election officials “author- meas- that such initiative “It is clear ized, and ordered” to conduct on directed regular gen- go the next ures must Ques- election on that date a state, eral election held tion 408. the date fixed noted Legislature or the unless the Governor proclamation, being in the “the first Tues- it submitted at a shall order be Monday day succeeding the first in No- (Emphasis supplied.) special election.” year, vember” of an even numbered coincidentally day the same as that law Carrier v. State Election rel. State ex day designated upon as the which the Board, supra, we said: “regular general election” should be held. “By what was said and what was case, implied in the Williamson it is No. -408 was submitted jurisdiction rule in this upon precincts in all now a settled through- and voted that, an initiated measure out the State on said whether November amendment, or a it majority A of those a law electors who voted submitted to must upon measure voted favor of its next However, vote, approval. aggregate number part any act on the without affirmative votes fell short of a with or Governor, may be submitted or pi number cast through- total of ballots time the executive di- any (after out the State election discussed, For the reasons hereinafter the Gov- we proclamation rection or - decline to so ernor, of sub- hold. not the-date whether or as that mission the same date place, In the first to be observed primary primary run-off Legisla- vitalizing legislation, n being (Em- election is ture, days referring to the election on phasis supplied.) which a might be called tion stood jection by inexorable enactment, except implemented by The constitutional amendment November submitted at the command of the Constitution people by vitalizing the approval effect achieved distinct legislative ques- re- mentioned of this article.” sions for carrying primary election. It has been noted that Constitution specifically- states shall make suitable into effect the only part Art. that: mandatory Sec. 3 “ * * provi- proclamation calling for a noted, however, It is also to be that the election on the same date. Legislature in enacting vitalizing stat- (34 ute 25) O.S.1961 and in mentioning Thus it is seen that mandatory “the primary election” did not call for a vote an item such as here specific authority given byit the Con- involved at the next election on the stitution to limit calling the Governor to one hand or at upon any day on some other than suitable, date discretion, in his with the day. exception itself. *6 Okl., In the case of Tate Logan, The matter exception of such prin- is the 670, 362 P.2d in the first paragraph cipal of the issue in this case. syllabus this Court said: May the lawfully pluck Governor an in- “Our constitution vests in Legis- the itiated measure from among upon those set supreme lature the power to -enact laws the ballot, election set it aside for tó meet the State, of needs the and its consideration at the same time by upheld acts should plainly unless and, by same voters simple expedient clearly express within prohibition part calling of that of the election occur- - and limitations fixed the constitu- ring on such initiated special measure tion. There is presumption that an election, special make it a election ? act is constitutional.” that this Court should Respondents argue Assuming without Leg- that the deciding there would be no different that determine islature could so Governor, limit the if it so counting the votes cast on the of method intended, move to we the matter of whether question initiated measure apparently it did so intend. special election whether such were election As an indication day of the of interpretation on conducted therefore, placed by that, other time and or at some on the responsi- bilities and hold in this case that duties with should (a) we which it was charged calling of the purported of Article 3 of the conducting alleged Constitution, of the Section it is noted in this case on page tion involved November 441 of the laws 1907-08, that at 1962, respects 6, lawful in all and that Title 34 O.S.1961 Initiative now and Ref- proclamation erendum, 2, of the (b) setting Governor de- Section out the form 271, claring substantially that Initiative Petition No. to be followed in drawing an 408, petition, provided No. had received more it was State that the yes than no votes and “respectfully votes thereof would signers it had order * * * approved, proposed following lawful.
827' * * * may which proclaimed by one execu- to the constitution amendment tive legal voters action an shall he to the on * * * ap- for their initiated measure. State of Oklahoma proval regular general rejection at the a proviso “The true office ** *, desig- on” a to be held to restrict or make clear that which has date; signers nated and further before”, gone Okl., Key, 365 P.2d Welch v. Ques- No. of Initiative Petition thing implies 159. The mention of one “respectfully order tion No. so did the exclusion of another. conclude We proposed following that the initiated shall be submitted Constitution only be called for a legal of the State Oklahoma voters prior date general election, at which rejection approval regular time otherwise the submission becomes on the 6th mandatory by operation lawof and “with November, special elec- D. or a A. or without act part Gov might pur- which be called for said tion ernor”, provided same ready submis * * pose, sion. State rel. Carrier v. Elec ex Argument is advanced that the mention Board, supra. mandatory primary quoted portion (34 O.S.1961 statute statehood, thirty-four Since initia excludes the 25) general election. petitions tive reg have been voted Louis-San Francisco Only St. ular the case of elections. four of such Treas., County McIntosh, 103 petitions majority have received a of all R. R. Co. v. we said: respectively P. the votes at said cast “ petitions * elections. Eleven of such * * principle of is a general “yes” received and “no” one that the mention interpretation cast on the measures another exclusion of implies the thing petitions. It is to be noted that none de affirmative thing; preceded present fifteen who Governors ju scription the cases *7 one were and several of members of whom implies may be exercised risdiction convention, pro our constitutional ever of such the exercise on negative a special * * a claimed election the on date of *. In the cases in power other general regular purpose election for the the Okl.Cr. parte Ballew case of Ex [20 thirty-four on any of the said of Criminal of P. the 105], Court 201 In many initiative measures. the past of the rule ‘Applying Appeals said: upon initiative measures been voted “expressio unius construction statutory special by the by called elections alterius”, affirmative the exclusio est prior the different Governors to in of acts enumeration the description and stance, special none at pur but elections nega contempt implies a constituting regular portedly set on the date a general of power such exercise of to the tive as election. ”. not enumerated’ cases in General, Attorney brief, The in legislative proviso in the Act refers very The opinions by in V, to 1946 to the us an him Art. affords which vitalizes Superintendent of scope Public the Instruction of restricted and indication eloquent Governor. The the then Governor the Governor. had in- power conferred the " * * * proclamation quired he if could issue a the shall terms, Its discretion, special spe- election calling in his to call time-of power, petitions. election four questions, such on election to vote cial Attorney mandatory opinions in primary General both designate or effect, pur- held, special for such officials on date of election as election special general election election could not enumerate pose”, do 828 purpose of legally be called vot- noted that without affording for petitions. opportunity early an an vote on on initiative
ing measure, Governor, an initiated call- v. rel. Carrier the case State ex ing election on an item the such supra, we said: Election Board calling and not intent of determination “Our item, election on such another as ex of the constitution the framers could thereby favor of discriminate thereof, pressed in Article section one and against the other. paragraph preceding in' the discussed regular admin At biennial above, augmented by section when the interpretation voters their sev receive istrative interpreta they freely acquiescence right in such ballots have the give tion, they rule a well established consideration as desire to furnishes all provi ap constitutional amendments construction of construction, ballot, they sions, object pearing on for ‘the were nor if mally constitution, submitted at applied give is to ef- then conducted, there intent of framers and of without feet to the its being it, complication adopting and when the confusion or being re quired to provision is not consider one text of a constitutional such amendment as if courts, giving were in ambiguous, segregated con some manner from thereto, liberty are not struction then being beyond there submitted separate the in search its so-called meaning long Also and con authority strument.’ ‘the There is no interpretation segregation separate the constitu tinued acquiescence Proclamation, aid Executive removing order doubt as to the meaning officials. such constitutional in Referring case of State ex rel. by the tended framers thereof.’ Lat Mathews, al., Babb Judge v. et 134 Okl. Cordell, ting v. 172 P.2d 352, respondents 273 P. contend “this that: See also 400.” Oklahoma Tax case adds significant finding that a Gov Liberty v. National Bank Commission ernor call could election at the Co., etc., Okl., and Trust P.2d next election held throughout the State or Const. Williams Continental put otherwise at an election other than Corp., 168 Okl. special election, and when he does the rules.” This find administrative Court We inter- *8 Mathews case held pretation portion Article that the State the Sec- Election of of Constitution, Board had 3, authority to submit an tion Oklahoma involved in measure a vote of people to the special the determination the answer to at a the of election conducted principal supports in on the date pri issue this case the our of mary because ap- above the had conclusion stated. believe We issued a proclamation calling special propriate people to observe that of for such date. The accepted question interpretation. have this of Oklahoma whether a special election could be held on an initiated purpose of calling measure regular general election appear initiated measure would on an to be was not before the Court. afford oppor- that it would an the case of State ex rel. Carrier v. tunity on such item either at to vote an Board, supra, we Election said: State than earlier date of support position an at which the “Plaintiffs their or inaction n upon not electors reliance statements of this court against it, against count not in the case item would both. made ex Babb State rel.
829 352, the meas- to initiate 288, voters of state 273 P. Mathews, 134 Okl. ure, process placed in motion “such ‘The words to effect above, people’s re- exercising used “all elections” election” power, legislative served and a court of the election to have reference rule, equity, not as- as will measure, which the sume, advance, jurisdiction in to have sub- to deter- petitioned the Governor mine proposed act, whether i-f mitted, has submitted been .and which adopted, However, adopted is that case in the Governor’. because, point- as accordance with the law governing here controlling not same.” rel. Wil- of State ex in the case ed out Carter, 177 Okl. liamson v. See, City also Mc City Council of being measure the initiated Milwee, Alester v. 122 P. 31 Okl. was, by case in the Mathews considered L.R.A.,N.S., also Associated See Governor, sub- proclamation Comm., Industries of Okl. v. Tax Okl. primary (the mitted P.2d 79. con- did not election) and such Respondents argue further “that it would through- held the ‘next election stitute abe violation the citizens rights of within the out state’ Oklahoma, equal secured them the to provision quoted above protection clause of Amend- the Fourteenth contended, authority, as is not Such case Constitution, ment to the United to States action of Governor “sustaining the hold that not receive 408 did on the
calling requisite They passage.” argue vote the next election as that to “count the of citizens who did State.” not cast a ballot as on the measure, submit, being against is, we ap Respondents argue that impairment right much an vote to un plicants guilty herein as if the ballot box had been stuffed with re-apportion ethical conduct to failing a like number of no votes.” Such argument our State Constitution according to contrary our holding rel. State ex concerned other lawsuits allegedly delaying Board, Carrier supra. v. State Election The con with this amendment. Respondents cite no cases holding an issue applicants duct of the opinion to inbe violation the Fourteenth Applicants by cannot case. their conduct Amendment of the United States Constitu- power which the confer tion. grant him. Constitution did not Their real contention is that face “a time Respondents contend that of the Fourteenth Amendment a ly been the action would have in mandamus powerless require that its own constitu-
proper special election remedy tional adopted by amendments af- made, proclamation invalid if it was firmative more vote electors than a contended, require officials the election simple who cast a ballot gen put question *9 upon They amendment. cite They argue eral election.” that this attack support precise no decisions late, applicants comes too and that raised. proposition so agree. guilty been do not We of laches. Petitions, re In case of Initiative may rule be said As
etc., 703, P.2d 153 6 we said: Okl. administration internal the state its choice within the an entire freedom of copy petitions of the were has “When the by the Fourteenth circumscribed secretary filed in limits office against state, inhibition invidious signed .by Amendments’ and thereafter what . discrimination. seemed to be sufficient number 830 n BLACKBIRD, V, of Art. Sec. provisions WELCH, J., V. C. DAVISON, HALLEY, as construed JOHNSON, 34 O.S.1961 JJ-., discriminatory concur. court neither are no application. There face nor in their IRWIN, JJ., concur JACKSON discrimination invidious showing here of an specially. has voters; neither
against any group any anyone, or demonstrated that been BERRY, J., dissents. prej singled for group, sought to be out treatment, different udicial one JACKSON, special- (concurring usually ac Justice law from that the state which ly)- cords. For quote convenience I Art. from V, Art. construction of We hold that our 3, Okla.Const, Sec. and divide its not and the statute does vitalizing separate into matter, subject as follows: operate elector, deprive group * * * (a) “All elections on meas- electors, Four- rights protected ures referred of the State teenth Amendment Federal Consti- shall be had at the next election held tution. State, argue Amici curiae elec- * * * (b) “except when the Gov- may day tion be held on as a the same ernor shall order a election for day. They eral election cite authorities express purpose of making such jurisdictions from other local concerning reference. pertinent elections and other matters not “Any (c) measure referred contrary to this discussion which to be seem people by the initiative shall take ef- to our view but a closer examination fect and be in force when it shall have appear do not to fit the situation herein in- approved by a majority volved, ap- light viewed in the of our votes cast in such election.” plicable provi- statutory constitutional and This court has consistently sions. in order for an initiated adopted For the reasons amendment to hereinbefore set at a forth, specific authority absent tion it (the therefor amendment) must have been approved by 3 of said Art. Section we hold the a majority Gov cast lawfully ernor call a in such elec In re Initiative Peti- tion on an 823; initiated measure 2 (1910), on and for tion No. 109 P. coincidentally Hayman ex rel. State et al. v. State Elec- day. tion (1937), Board 181 Okl. P.2d 861; and ex rel. Carrier v. State Question We conclude that State (1957), Okl., Election Board 6, 1962, voted on November stood sub- I also believe that we consistently mitted at the general election on that date held that when a measure is submitted at operation direct of law. The Governor’s only election that an affirmative purporting ques- to submit proclamation vote of the was more sur- required the measure is adoption. its and did not alter the plusage character of difficulty I have had some in trying so the election held. why determine there is or should be hereby No. 408 is declared quantum different affirmative vote adoption have failed (cid:127)to lack of suf- adoption effect of an initiated *10 affirmative ficient votes. at a general election submitted from that granted: governs Writ at a election. 1
83i con- any possible submitting our der that form of have the conclusion reached people, difference the no amendment stitution and statutes make every required whether the a state or elector votes for affirmative vote who must, county or amendment be office the election submitted through subdivi- operation election. In either event the the consti of 3, requires 5, effect, Art. tution (c), supra, sion of Sec. itself vote for or against 17, effect and be that the “shall take the measure amendment. Article approved 1, seen, provides, it shall force when we that an in such cast by majority majority the votes amendment must ‘a receive qualified of all election.” of the electors state at’ who vote elec sub- If an measure is amendment or to which is submitted —a ma and the mitted jority, not of vote on the those who or mat- issue posed the sole amendment is deposit amendment, but of who those majority considered, then ter be any purpose. ballots for Hence it is also will voting the measure those that, an elector a state or if votes for cast in majority votes of the constitute a county office, necessarily he votes on will the amendment amendment, for, though his ballot more adopted. or have been Whether two contains no amend reference to the submitted constitutional amendments ment, that against he is counted it. So adopt- and be same by the terms of the itself Constitution voting majority simple ed is deprived right he refrain any without the amendments one of against or considering cast for from on an if the votes amendment he case. But an issue in this the others is not any county state office votes for ** *." 1, Art. 24, see Okla.Const. Sec. state- unable to find a clear I have been In the brief insisted Governor’s is decisions as ment of our former of State ex Babb v. case rel. Math- cast in why majority “a votes 352, (1929), ews 134 Okl. 273 P. required. Atwater v. is such election” authority proposition for the that where 292, 111 P. (1910), et 27 Hassett al. Okl. an measure member (a L. R. Williams Justice majority and a cast votes quoted Convention) ex- the Constitutional question submitted favor case, early Alabama tensively an from adoption, only necessary it is its Mayor, v. et May & Thomas Hardware Co. receive a such measure of all 26 Birmingham, Ala. So. al. of specified or- cast ours, Constitution, like The Alabama 537. adopted. legally Obviously to be der cast in required majority the votes hold. If holding does so in that case The Alabama seems Court justified can it is for the reason case Alabama say the framers of the statute, O.S.1961, au- the affirmative assent wanted Constitution designate the Governor “to thorizes par- attending all those consent primary mandatory election as adopt in the election in order to ticipating election”, for the further reason that to their constitution. Since election, in primary sense, the true constitution have used of our framers rel. an election. ex Williamson was used language as (1936), 177 Carter v. Alabama Constitution framers quoted case In that we from State case, quoted Alabama from language Carrington, Hatfield rel. Iowa ex Williams, may helpful here. by Justice the effect 785, 190 N.W. that a “ is not an election within proposition This takes primary no the constitution that, nor un- meaning un of the consideration account *11 purely law, legis a (cid:127)der the common but is simple 'expe-' constitution solely for the benefit dient calling lative creation enacted “spe- a n orderly procedure the administration cial election”. agree require- I that this n may parties, whereby se ment political each in our constitution requiring ma- elec jority lect candidates be submitted to of the votes to cast in such election adopt concluded tors at the election. We to an initiated measure burden- some, purpose that expensive, the Williamson case and encourages strife and requiring litigation provision constitutional among people. light our In initiated to submitted these measures be considerations I doubt if it is worth what throughout next election held the State is costing. However, “at a was to submit initiated measures function of courts to make constitu- par political time when the all tional law interpret but to and declare permitted congregate they what ties were see. orderly particular place time Believing as I do that the Governor government”. held (cid:127)conduct of their We not authorized to elec- convert that through “next election held words tion into a election for submission S, State”, out the in Art. as used Sec. of an measure, initiated take an or to supra, meant the next initiated measure out of “the next election used in Art. Okla.Const. Sec. See throughout state”, I must do Okl., Updegraff Gary (1956), also agree my with majority associates and cases cited and discussed that State adopt- No. 408 was not
therein. 6, 1962, ed on November that writ should granted. be If we now hold under ex rel. Babb State I am WELCH, say authorized that an constitutional v. Mathews initiated J., expressed. concurs the views herein may adopted by majority be gen- the measure at a voting (cid:127)of IRWIN, election, purported special (concurring specially). eral elec- Justice therewith, tion conducted in connection Respondents Amici Curiae sub- completely then we will eroded have almost mitted jurisdictions citations from other requires away proviso which an affirm- they which proposi- contend sustain the ative vote of those tion that Initiative Petitions to amend the and will have overrruled re Initiative Constitution of the of Oklahoma State 2; Hayman, No. ex rel. Petition at either State ex rel. Carrier v. Election elections or election held Board, supra, point on the at issue. as the Governor, Proclamation and I in argument is said effect appropriate deem it these consider cases 3, requires while Art. initiated con- conjunction without constitutional stitutional amendments to be submitted at visions. State, election held next authority Todd, Cited as is In re exception proviso to that authorizes Ind. N.E. Su- wherein the the Governor to order preme Indiana said: Court of express purpose making “ exception actually sought reference. in the absence of some con- not as the time of holding requirement proposals stitutional tion, exception an (Constitution) but to the to amend be submitted requires provision elections the General Assem- adopted approved cannot, must bly providing for submis- result, time, cast in sion at such overturn the I have been unable to adoption deter- the voters’ decision on the may nullify we requirement mine how by requiring adop- of amendment
833; will, election, proposal po- special order a the depend the vote tion to by operation be submitted of the Constitu- candidate.” litical vitalizing- tion and implementing and laws above case the that Amici Curiae state Therefore, the Indiana Constitution. the true was “even that further holds this - authority case cited is not the is- above for day the of be on though the submission sue in the instant involved action. though the ma- general a election and even Boltz, be used to chinery general election Cited is authority Houston v. Ky. 640, canvass, the cast on 169 poll, and return 185 S.W. wherein the Kentucky Appeals the the amendment.” election on Court of held that an election, specially called under of- Sec. 157a by particular construed language propositions the Constitution on the to issue the “It shall be the Indiana was: Court bridge road properly bonds held assembly submit general duty of the day on the same with the General Novem- the or amendments to amendment Election, ber and was the a none less state; aif of the electors “Special Election”, which is an held election same, ratify the of shall said electors supply vacancy a occurring office be- become, or shall amendments expiration fore the full term for part a the constitution.” elected, which the incumbent was or an be that the Indiana It is to observed question “ at propo- which some or election * * * said, in the absence Court sition submitted. that requirement some constitutional 157a, supra, Section authorizes issu- be submitted posals (Constitution) to amend * * public, ance construction of bonds discussing at elections indebtedness, provided and bridges, roads said, short, this, “In further the Court approved by county the voters of the a omitting any reference effect of special purpose. election for a submission of to treat be, provides further that the election shall separate as a proposed amendment ' provided held “in such a manner as be election, though admission even distinct pointed law”. The Court out that Sec. *.” be on the Kentucky Statutes enacted S, 3, of our Constitu- Under Article Sec. purpose 157a, for the of carrying out Sec. tion, referred to “All on measures elections statutory Constitution that said be had at the State shall provision requires “nowhere State, held ex- next election election to a day different from cept Legislature or the Governor election.” express for the shall order Gray, Also cited is Furste v. Ky. Also, making reference.” purpose of wherein Kentucky S.W.2d Court Constitution, under Article Appeals said: amendments which relates holding Legislature, language “That time for election to fill “ * * * used, vacancy Assembly may in General and referred day as Secretary fixed for same approval rejection, 'special it from regular prevent being at the next does ” election, except Legisla- when the election.’ house, ture, of each elec-, a two-thirds vote The Furste case involved shall order unexpired of a for the term purpose.” pointed It was out under the- Senator. Kentucky vacancy happens law that when apparent under our Constitution It is Assembly General proposal to amend the Constitution shall in either branch session, the during presiding officer of next submitted vacancy If shall is- house which the occurs unless that, General does not sue writ of if the *13 law session, take and become the writ shall shall effect Assembly not in approved by majority also when it is It was a by the be issued Governor. of thereon, holding the votes cast and not otherwise.” pointed out that the time (Emphasis added.) by but that law was not fixed elec- writ of of relating to issuance statute Therefore, a constitutional whether Assem- General vacancy tion to fill a amendment is submitted in the State mandatory mandatory. it was bly Since was a Oregon at the election or of the writ issuance said that the Court election, majority adoption requires a its hold- precedent to condition a thereon, not re- cast and does votes election. ing a valid quire majority a of the votes cast required Kentucky by in- election as cases Constitution above Neither of the the State of Oklahoma. proposal amend the Constitution a to volve to amend proposal made if a were and Respondents by None of the cases cited adoption require for it would Constitution and Amici or determine the Curiae involve cast for and the votes only majority of and fundamental the instant basic issue Amend- proposed Constitutional against the action as that issue is set forth in Kentucky ment, 256 of (See Sec. majority opinion. by Re- The cases cited our Constitution Constitution); whereas spondents places Amici a con- and Curiae cast requires a of the votes employed language on the in the struction election, is held at the if the election statutory and Constitution Kentucky does the Neither election. states; whereas, place we must other provide that a Constitution construction on our Constitution and statu- upon proposed Constitution- may called be tory implementing vitalizing laws and our Amendment. al provisions. Constitutional pertinent note that it It is also recognized There is well difference in the writ of elec- mandatory issuance counting actual result of the method precedent holding a condition on measures or constitutional amend- in the Furste case. As a valid properly voted on at a ments out, pointed unless the Governor previously election, on at a tion and voted orders a is, specially date and fixed our and our operation of Constitution by special purpose considering called proposed statutory provisions, a amendment a matter. each instance the votes must be voted on at the to the Constitution and a must be counted result reached as election. next Constitution, in the provided has County, of Wilson Wasco case contrary. The never support P. Re- does Or. repeatedly has been held and under- It contention in instant action. spondent’s acquiesced in for more than half stood involved the issuance of case road That century elected officials and voters county and did not involve a bonds officials that when a constitutional all amend the proposal to Constitution. How- is initiated and is amendment Oregon, 4, 1, ever, the Constitution art. upon by and voted properly for a constitutional amendment provides election that in order electors proc- through petition the initiative approved as an passed provides: specifically “All elec- ess and receive must the fa- to our Constitution measures referred to the tions “majority of all vote of the elec- vorable shall had at the state biennial at such election.” tors elections, except regular Assembly XXIV of the Constitution is shall order de- Article Legislative subject constitutional amend- Any measure referred voted I, of that ber provided ments. Section amendment and all
article as follows: candidates for state of- fice every precinct were voted inon to this “Any amendments amendment or State at place, the same time and either proposed in Constitution with the same election and counters officials if the Legislature, and branch of the serving precinct thereof, and the voters by majority agreed same shall be as at all former *14 Without elections. to each all the members elected question, general it was a election. houses, proposed amend- the two such shall, Therefore, ment amendments with we question or have before us the thereon, as to yeas nays be entered and whether the Chief Executive could by the Sec- convert journals Special their and referred this election into a Election for their as to retary of State to the one of several coming matters regu- approval rejection, regularly by at the next or law the ballot and before election, except when the general lar for day on that votes Legislature, by regular vote places two-thirds times thereof. house, elec- each shall order importance The question of the and the majority of purpose. If a tion for that necessity clear determination thereof voting at such election all the electors impressive is made more when we are re- any amendment shall vote in favor of large minded that a number of measures and thereto, part thereby become a it shall might amendments be voted of this Constitution. on at the election with an pro- are “If two or more amendments by effort to label the posed they be submitted such shall Special aas Election as to one that electors vote manner items, leaving but it' to stand as a separately.” against them General Election as to others items. And in that Article it is Section In this connection it is interesting to note vided as follows: proposed that another to the by pe- “Right of amendment initiative Constitution referred Legislature impaired” not tition 24, 1, under Article Constitution, of the impair Question voted on right 406, “This article shall not No. Legislative Constitution Referendum amend this No. petition by a vote an initiative on November therefor.” Question Ques- No. 406 and State being tion No. both provided proposal constitu- that a Thus it is well amendments, tional separate- were voted on may originate the Constitution to amend ly, that on separate ballots from each people. Legislature be initiated separate also on ballots instance, by provisions, from But in either the ballots for the election of adopted proposed amendment must be officers. people, of the manner and vote questions Both substantially received required, vote measurement before it “Yes” more votes than votes, “No” but part of the Constitution. may become neither received a favorable vote of a majority of all the electors voting at the quoted important paragraph is The last general election. proposed constitutional amend- because the presented by However, involved was ment here there was difference para- petition after authorized Executive Proclamation the election and other Consti- November 1962. As to graph No. contrary thereto. Executive Proclamation and statutes not issued tution 19, 1962, though disclosing election of and regular biennial November held on Novem- were more “Yes” than “No” the State was there '836 statutory provisions call- number tutional and
Votes, exact recited further ing election” of a at such election. of “all the electors not receive it did and declared that call Whether could did required majority constitutionally day on a pass not at the November by a under two-thirds each house vote of XXIV, I, Article Section Constitu- Execu- Question No. As to State tion, How- an issue in this case. demonstrated Proclamation recited and tive ever, empower call “No” than more “Yes” votes that there were election on the or set out Votes, but did not recite privilege would vest in him the voting at exact number of “all electors authority to determine whether a constitu- election”, the total but recited that adopted tional be- amendment should be question “was “No” votes on the “Yes” and majority, cause a voted on of those who said number of votes cast total *15 such amendment favored and stated 408” tion No. on State amendment, such or determine whether Ques- as State voted that this amendment adoption require should adopted. pass and did tion No. of election. those who in the voted signed petition case initiative in this The words, In other would beginning: by people in the stated privilege prerogative and the sole should determining whether the silent vote legal undersigned citizens “We the against considered for or a constitu- Oklahoma, re- of the voters my judgment tional amendment. In pro- spectfully following that the order Chief au- Executive does not have such posed amendment Constitution thority. legal voters be submitted to shall I am that Mr. authorized to state ap- for their of Oklahoma the State WELCH, J., concurs in the herein views rejection regular gen- at proval or expressed. 6th be held on the November, at a A.D. or BERRY, (dissenting). Justice might for said be called election which stated, I am un- hereafter For reasons says:” for himself purpose, and each reached the conclusion agree with able to majority opinion. my judgment, this constitu- In amendment, people, by initiated by proceeding posed tional question The by either authority to be voted rests in power whether special election, election or at on an to call There is than the election. where date of initiated measure Constitution, to indicate our date of a so-called nothing on the same election falls statutory provisions, peti- or initiative election. could be voted on
tion, it should .that question to the mentioned the answer If and a both a Initiated Petition “yes”, then No. by time the same “measure”, was to as referred hereafter of Proclamation virtue the voter act of 335,045 af- adopted. true because This is (cid:127) Governor. of the 237,287 only negative votes and firmative on the measure. votes were cast that a provision The question has never heretofore been This one because conditions is a wise called fact, ap- In it this Court. considered arisen where it was and have may arise appellate no court has had pears that oc7 early view on important to have very rule therein. casion to or constitutional measure some opinion ques- the answer to the my In waiting for the election. without must be found in Art. consti- Ill purpose of the various That
§37 relevant it Constitutional Law is said “The Constitution. the Oklahoma thusly: legislature may, however, enact a statute reads the cited section portions of proi “ for the purpose putting in force a ** re- on measures All elections constitution, vision of the and under- certain shall people of the State to the ferred and in the absence con- circumstances the next election had staL restriction, may stitutional enact State, except amplifies ute which aids or a constitutional order or the Governor shall Legislature provision, may by enactment add pur- express special election provision, condition to a constitutional Any pose making reference. vided such enactment does violate by the referred to the measure ,. constitution.” . be in shall take effect and approved when it shall have been force syllabus paragraph second in such by majority of the cast votes In re House Bill No. 205 Okl. Any referred au it was -said “The ' ef- take referendum shall thority all extends be in fect and force when shall rightful subjects legislation not with approved by majority drawn the Constitution conflict cast thereon and not otherwise.” therewith.” supplied.) (Emphasis pronouncements In keeping with the *16 to, are above alluded the authorities’ hold quoted made is clear in the above beyond power that it the is Legisla- the power authority that rests in matter and ture usurp to the powers constitutional special the to call a on Governor 887, 187, the At p. Executive. 11 Am.Jur;. majority § an con- initiated The measure. it Constitutional Law is said that “Another only power to cludes that extends rule that legislature is the election on calling such a fundamental usurp powers constitutional except gen- on date that department by executive interference with is eral election The for this held. basis conferred department functions on that appears V, conclusion to be that (a) Art. by organic law.” thought expressed The Ill, is not that self-executing Sec. and it in quotation thusly p. last is stated necessary Legislature was therefore for the 545, 130, 16 it; Constitutional Law: (b) legislation § that to vitalize vitaliz- C.J.S. ing provisions the constitutional makes “In with accordance constitutional clear that be held cannot departments separating visions gov- election; a (c) on date of that ernment, legislature cannot inter- jurisdictions spe- hold that with, any powers fere or exercise prop- cial election cannot be held on date erly to, belonging depart- executive election; that (d) has Thus, the legislature ment. re- cannot administrative construction of Art. Sec. preclude any lieve or executive officer Ill; (e) to otherwise construe said performance from the duty en- would section work to the detriment joined or, him constitution, on public. expressed, otherwise cannot take away from officer agree I that the framers of the Consti- given powers duties him by the Legislature tution intended that enact * * (Emphasis constitution legislation implement which would the men- supplied.) by, effect, in tioned section supplying de- workable, but, tails that would make it It was in St. Louis-San in Francisco my State, opinion, Okl., did Ry. not intend legis- that such Co. P2d provisions Corporation lation run counter to the Commission ir “is nullify plain section and specific pro- revocably power vested and au with p. 205, 70, visions of same. thority subject appeal At fix review.on § C.J.S. 794, 799, (1944), of traffic 23 Cal.2d rates, charges classifications 387, 390, com- ‘All doubt transportation transmission as to the construc pertinent subject tion of powers panies, are which vested resolved favor of law; legislature the initiative and regulations by that the legislation given is to impotent deprive Com- by legislation mission merated authorize the from power mode, but exercise of method may, by general such enu- procedure law, liberal construction as that afforded [*] [*] ". statutes generally (citations)’ Since Sec. governing their enforcement”. If applied the above mentioned rules are power and supra, grants case, the instant the will of the election, authority to call expressed by the vote in the measure legisla- impotent” to enact “is will not be struck down. power, enact curtailing therefore many jurisdic- The rule followed in legislation providing that the Governor a special tions that election is one which power except when free to exercise such specifically must be takes called and coincides with special election place different from the time election. jurisdictions is held posed by problem answer question to vote on some 3, supra, proceeding, must be found proposition is a notwith- properly be based whole or and cannot standing the that it fact is held the same pro-. part that construe statutes day as a election. See 29 C.J.S. granting visions thereof lc, p. and 18 Elec- Elections § Am.Jur. power authority to call a 34S, tions, p. p. and cases cited submitting purpose to vote tion for the p. beginning 1402 of annotated notes an initiated measure. 1382, 131 A.L.R. *17 Ill, S, Okla.Const., Art. Sec. a Under 3, supra, one should construing Sec. upon mandatory duty Legislature rests keep mind well-established rule sys mandatory primary provide for “a liberally will con- measures tem”, years many and for except be struck down and will not strued by providing carried out mandate has is
upon showing that the measure a clear primary for a state-wide election or elec p. 16 At unconstitutional. § C.J.S. Court, on stated dates. This notwith tions Law, this is said: Constitutional special standing primary that a not a is elec “Initiative referendum rule first mentioned in the tion within the construed; any liberally should be foregoing paragraph, has in favor should be resolved doubt Governor, an initiated directive people. right of this exercise primary at measure a election * * * exercise The having considered as will be sub power will thus reserved not mitted at election will be except with on a clear show- interfered passed majority if a deemed * * * law, a violation ”. ing voting affirmatively. thereon vote Initiative, Referendum See also Babb, Am.Jur. Atty. ex rel. v. See State Co. Recall, 6, p. 439. al., P. et 134 Okl. Mathews rel. et al. v. ex Carrier State Elec Jordan, v. Cal.2d In McFadden al., Okl., et 318 P.2d 425. tion Board 787, 788, this was said: in the cited statement last precious case to right “The of initiative is the Governor the effect call a people and is one which the courts an initiated special election on measure preserve on zealous to to the fullest are except of a spirit any date as date tenable measure of well as is true because As is dictum. Such the Gov- Gage letter. said Jordan here, spe- ents there, parties and members ernor called other than had not major vote, parties two presented privileged cial issue are election. The primaries. voted is not true of our case a measure There- Carrier was whether fore, will, representative be con- more should vote at a rule, be had where election than having sidered as been enacted a primary did at the election election. We entertain no doubt of those greater that a persons appeared not vote thereon. number of cast affirmative polls 6, 1962, than on November opinion I do not consider that the 1946 would appeared at a bearing Attorney any General has held on primary of a election or some First, settled the issue us. before day that did coincide with date of the construc- law that so-called administrative general election. only where the tion will be considered ambiguous. under consideration is vision I feel no argument, legal tenable supra, I read it is clear that As equitable, support theory can that the discretion, Governor, may by appro- in his place pri- Governor can on a priate proclamation submit an initiated mary deny ballot at a election and Second, date. administra- measure on privilege him this elec- only be noticed where tive construction will tion. case and consistent. In the instant .uniform patent practical that from a stand- one Attorney construed Sec. 3 General point, submission of the measure at the No- way and the Governor another. 6, 1962, vember election instead of at a persuaded by argument that it I am not prior special (1) saved the State peo- interest of the would not be to the best $100,000.00; (2) in excess of was a con- ple can call hold voters; venience to the and (3) resulted on date greater in a number of voters appearing at tion, that if he acts it argument nor so polls, repre- which resulted in a more superfluous. sentative vote. proclamation of In the instant case the Any suggestion that a herein decision calling Governor respondents place favorable to would given wide and extended the measure position in a discriminate is by newspapers, radio and tele- coverage *18 practical a proposition, not well taken. As coverage such that vision. The unquestionably power. he has such This majority of those at the elec- vast is true because it is within his discretion to cognizant ac- were of the Governor's tions submit an initiated measure to a at a vote tion; therefore, super- action was not his or remain election silent and there- said reason it cannot be seri- fluous. For by cause it submitted at to be the next ously urged that considerable number eral election. And two or if more measures thought that matter of of voters submission, ready may, are he in his equiva- abstaining voting thereon was from discretion, submit one at a election add, negative registering a vote. I lent to by inaction cause the sub- “yes” number of votes was such that at a general mitted election. In either of great demonstrate that a as to number of instances, power the mentioned he has the persons would had to have have been mis- to discriminate. change the in order to outcome of the led election. presumption indulged public that a a matter of common knowledge duty
It is that official will do his and will act in the public. general rule more vote at interest of Such must be the primary people, than general election. conviction otherwise election a voter is not long ago At bound no doubt would have been party locally independ- lines and to observe amended.
MO
' consideration, under to de- can be made If it is unwholesome pend opposed to on timing of those submit to a vote an initiated measure apparent fram- election, that the why then measure. date of intent ers no such submit such Constitution had not him to unwholesome they not did intend that that does not measure to a on date vote desire — in- adopt an necessary to number of votes coincide with date of depend legal maneu- why him is it unwholesome for itiated measure legis- possess power veto over vers. exercise my way thinking, To
lation. respectfully stated dis- For reasons I there- think case did not such to be the Majority opinion. sent from fore, plain of the Consti- under tution, powers to the Gov- granted such
ernor.
History upon apportionment bearing the Gov- me that
our convinces wisely interest
ernor acted best submitting the measure I refer general' to a vote Error, WILKINS, Johnny Plaintiff R. de- Legislature has fact (1) that with apportion in accordance
clined to itself Constitution; (2) an action Oklahoma, that Defendant The STATE in Error. local Federal pending in the presently apportion- purpose No. A-13284. for its Court has litiga- (3) Legislature; ment Appeals Oklahoma. Criminal Court of (re- contesting tions conducted Dec. 1962. peti- validity initiated spondents) Rehearing Denied Jan. shortly only before concluded tion was therefore, election; calling of prior would not have feasible and would voters; imposed upon (4)
aforesaid, representative a more vote was
had the measure date than
held on if a resulted
would thereto; prior (5) by
had been called did,
proceeding as the Governor there State, and the saving convenience *19 the voters was served. can that the Governor be denied
To hold special,election on a right call
his day may invite de- calculated opposing the meas-
laying tactics date will a vote thereon on force
ure thusly place them contend, they can position where
in a
here, failed that the measure notwithstand- the votes cast thereon
ing Thusly, matters of in the affirmative.
Were concern, such as the measure public grave