I regret that it is not possible for me to concur in the conclusion reached by my colleagues and will state briefly the reasons why.
The complaint filed by the plaintiffs shows upon its face that the initiative petition filed with the Secretary of State proposing to amend certain sections of the Revised Code of 1928 and asking that it be submitted to the qualified electors of the state for their approval or disapproval at the next regular general election was regular in form, signed by the required number of qualified electors and filed within the proper time, and when the proponents of a measure have complied with the Constitution in these respects they have done all the law requires of them to have that measure submitted to a vote of the people. It then becomes the duty of the Secretary of State under subdivision 10, section 1, article 4 of the Constitution, to cause to be printed on the official ballot the title and number of the measure in such a way that the voters may express at the polls their approval or disapproval of it. His duty under these circumstances to do this is mandatory and, as I see it, the court has no power to interfere with his performance of it, because placing the measure on the ballot is made by the Constitution itself a step in the process of legislating by the people and after the machinery therefor has been set in motion by the filing with the Secretary of State of a legally sufficient petition proposing a measure the court's power to enjoin him from placing it on the ballot is no greater than it is to enjoin the legislature from taking such action as it desires upon any bill making its journey through that body. To hold that it is appears to be an interference with the independence of the legislative branch of the government. *Page 458 As stated in Cress v. Estes et al., 43 Okla. 213,142 P. 411, 412:
"The power to propose and adopt a proposition of any nature and to amend their Constitution is vested in the people, and in the exercise of such power they constitute the legislative branch of the state government, and are not subject to interference or control by the judiciary."
In re Initiative Petitions, 153 Okla. 205, 6 P.2d 703, the court used this language:
"When the copy of the petitions was filed in the office of the Secretary of State, and thereafter signed by what seemed to be a sufficient number of the voters of the state to initiate the measure, it placed in motion the process of the people's exercising their reserved legislative power, and a court of equity, as a general rule, will not assume, in advance, jurisdiction to determine whether the proposed act, if adopted, is submitted and adopted in accordance with the law governing the same."
See, also, State v. Osborn, 16 Ariz. 247, 143 P. 117;McAlister v. State, 96 Okla. 143, 221 P. 779; McAlister v.State, 95 Okla. 200, 219 P. 134, and long list of cases in annotations in 33 A.L.R. 1370.
The fact that the Secretary of State may not have observed some other provision of the Constitution or the law, for instance, that requiring the giving of publicity regarding a measure to be submitted, does not, it would seem clear, have the effect of supplying, creating or bringing into being something that did not exist before, namely, power in the court to prevent the Secretary of State from performing a duty made mandatory by the Constitution itself. Even though failure to give the required publicity might render the measure invalid, as it likely would since the initiative and referendum are based on the idea that the people will be fully advised concerning any measure they are asked to vote on, yet this question could properly arise *Page 459 only if the measure should be approved and its validity attacked.
The situation is entirely different from that which presents itself where the legal sufficiency of a petition proposing a measure is questioned. In the very nature of things the court has the power to determine this, if questioned, before the Secretary of State places a measure on the ballot, because the very foundation of an initiative or referendum proposal is that the petitions calling for its submission to the voters "shall conform with the requirements of the law as to form and signature. It is not a legal petition if not regular in form, and does not contain the signatures of legal voters as required. . . . If it is fraudulent or if the signatures are forged, it is not legally sufficient." State v. Osborn, 16 Ariz. 247, 143 P. 117,118. And in Barth v. White, 40 Ariz. 548, 14 P.2d 743,746, the court, after stating that the complaint showed affirmatively that the petition was sufficient in form and bore the number of signatures required by the Constitution, said:"Nothing further is required to make it the duty of defendant [secretary of state] to place the proposed amendment on theballot." (Italics ours.)
However, my principal reason for expressing dissent from the majority opinion is that regardless of the correctness of the position that the Secretary of State's failure to publicize the measure as required by law gave the court jurisdiction to enjoin him from placing it on the ballot, that power should not, in my opinion, have been exercised under the facts confronting the court in this case. The proponents of the measure had done everything within their power to procure a vote on it when they filed with the Secretary of State in proper time and form and signed by the required number of qualified electors a petition proposing it, and when it is kept in mind that it took *Page 460 much time, labor and expense on their part to secure the more than eleven thousand signatures necessary to constitute a valid petition, their right to have the voters express themselves on the measure at the polls, should not be denied, unless there was at the time the injunction was issued no possible way by which the Secretary of State could comply, at least substantially, with the law requiring him to distribute to the voters the publicity pamphlets. Could this have been done?
Under the law as it existed up to 1935, section 1746, Revised Code of 1928, it was the duty of the Secretary of State to have the publicity pamphlets printed and distributed by mail, one to each voter in the state, fifty-five days prior to the general election, though only twenty days are required in case of a special election, but the Twelfth Legislature, by the enactment of what it commonly referred to as the Angius Law, chapter 62, Session Laws 1935, changed the method of distributing them by requiring the Secretary of State to send a number of them equal to the registered voters in any county to the board of supervisors thereof to be by that body sent to each voting precinct in the county along with the election supplies to be delivered there. It was then made the duty of the election board to distribute one copy to each elector as he voted at the primary election, the unused pamphlets to be turned over to the county recorder upon whom was imposed the duty of delivering one to each voter registering thereafter before the general election. That those who fail to vote at the primary do not receive one does not perhaps invalidate the law since they are charged with notice of the fact that it provides that those who vote at that time will be furnished one.
The Secretary of State did not procure the printing of the pamphlets and distribute them to the boards *Page 461 of supervisors within the thirty-five days from July 24th, or by August 29th, and as a reason for his failure to do so alleges that he advertised for bids and due to the fact that there was not sufficient time to print and deliver them received none, and that in consequence of this the thirty-five days did not give him sufficient time in which to comply with this provision, and, hence, that the act was unworkable and, therefore, invalid. The majority opinion holds, however, that it is valid and should have been followed in the distribution of the pamphlets, and in this portion of the opinion I concur, because the time given would appear to be ample to do all the law requires to be done. But if it was not, six or seven days additional time was available to the Secretary of State, since, notwithstanding the law fixed ten days prior to the primary election as the last day on which the pamphlets should be forwarded to the supervisors, they would have been in ample time if they had reached the boards not later than three or four days prior to that election, for that would have allowed all the time needed to have them sent out with the election supplies to the various precincts. To have delivered them to the boards ten days ahead of time, or on August 29th in 1936, could only have meant that they would have lain in the office of the board until its clerk was ready to send out the precinct election supplies, and if they reached the supervisors in time for this, there would have been a substantial compliance with the law, for it is clear that this provision of it is merely directory and not mandatory.
Regardless, however, of the secretary's failure to comply with the Angius Law, or the reasons that actuated him in not doing so, the question arises whether on October 2, 1936, the day he was permanently enjoined by the trial court from placing the measure on the ballot, he still had time to distribute the pamphlets *Page 462 to the voters of the state in a way that could be treated as a substantial compliance with that law. My colleagues say that this could not have been done, that the Angius Law is mandatory in terms and, hence, in effect, that the observance of it was a necessary prerequisite to the validity of the measure, even if it had been submitted and approved by the people. I readily agree that the law should have been followed and that the Secretary of State, if the aid of the court had been sought in time through the extraordinary writ of mandamus, could have been compelled to obey its terms. But, notwithstanding this, I cannot agree that the act is so mandatory in character that its terms demand that the Secretary of State should have been permanently enjoined by a court of equity from further distributing the pamphlets through the mail, the thing he was doing when temporarily restrained on September 16th. My reason for this is that that act did no more than change the time and manner in which the Secretary of State was directed to distribute the pamphlets, the former being extended from fifty-five to sixty days and the latter changed from sending them to the voters through the mail to delivering them to the boards of supervisors to be by them sent to the election officers of each precinct in the county whose duty it became to distribute them to the voters as they cast their ballot at the primary election. The time, except in so far as it was connected with the manner of distribution, was clearly directory, because the pamphlets, if delivered to the voters sufficiently far ahead of the general election to enable them to study the measure thoroughly, and no one would say that twenty-five or thirty days was too short for this, fully met the purpose of the law and the constitutional provision that the voters be fully advised as to the various matters upon which they are asked to express themselves. In fact, according to the statute itself, 1746, *Page 463 supra, twenty days before they vote on a measure is all that is required in case of a special election. The rule, in so far as it affects the time in which an act is to be done by a public officer, is stated thus in 59 C.J. 1078, par. 634:
"(4) Time for Performance of Duties. A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, and made with a view to the proper, orderly, and prompt conduct of business, is usually directory, unless the phraseology of the statute, or the nature of the act to be performed and the consequences of doing or failing to do it at such time, is such that the designation of time must be considered a limitation on the power of the officer."
See, also, Missouri Pac. R. Co. v. McIntosh, 92 Okla. 153,218 P. 693; State ex rel. First Nat. Bank of Klamath Falls v.Siemens, 68 Or. 1, 133 P. 1173; Board of Arapahoe CountyCommrs. v. Union Pac. R. Co., 63 Colo. 143, 165 P. 244, 246;Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40.
In stating the rule guiding public officers in certain instances as to the manner in which they should proceed in the performance of their duties, 59 C.J. 1077, par. 633, uses this language:
"Generally, statutes, directing the mode of proceeding by public officers, designed to promote method, system, uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what results shall follow noncompliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed. Especially is this true where to hold void acts done in violation of the statute would work serious inconvenience, or would cause injustice to persons having no control over those intrusted with the duty enjoined, and at the same time would not promote the main object of the statute." *Page 464
See, also, Missouri Pac. R. Co. v. McIntosh, supra; Board ofArapahoe County Commrs. v. Union Pac. R. Co., supra. In the last of these two cases appears this language:
"Statutes prescribing the manner, form, and time within which public officers are required to discharge the public functions are regarded as directory, unless there is something in the statute which shows a different intent."
The Secretary of State's disregard of the Angius Law did not injure the plaintiff's rights, provided the other method be held sufficient under the circumstances, neither does that law declare what result shall follow his failure to comply with it, nor does it contain negative language importing a prohibition of any other mode of distributing the pamphlets than that provided therein, and to hold void their distribution through the mail because it was in violation of this statute undoubtedly works a serious inconvenience, and causes an injustice to the proponents of the measure as well as to the other voters of the state, none of whom had any control over the acts of the Secretary of State, and at the same time does not promote the main object of the law. This being true, I am unable to see wherein the failure to observe the Angius Law in distributing the pamphlets is any reason why those interested in the initiative measure should have been thwarted in their efforts to submit it to a vote of the people as long as it was still possible to distribute them through the mail in ample time for the voters to study it thoroughly and in a manner just as effective as that set up in the Angius Law; in other words, as long as the way was still open to comply substantially with the main purpose of that act, that is, to distribute to the voters without expense to the state, the saving of which alone prompted its passage, the identical *Page 465 pamphlets that would have been handed them by the electors and to do so in ample time to enable them to gain the information they needed to vote intelligently on the measure. To hold that this could not be done is in its final analysis to say that the measure would have had no validity whatever if approved by the people merely because the publicity pamphlets from which the voters obtained their information concerning it were handed to them by a postmaster rather than by an election officer at the primary. This is too technical for me, for to my mind it is no more reasonable than to say that the approval of the measure could not stand, because the pamphlets were handed the voters by an election officer after they had cast their ballots, instead of before if the law had so directed, or by their left hand when they should have used their right. I feel sure that if the Secretary of State had not been enjoined from placing the measure on the ballot and the people had approved it, after the pamphlets had been distributed by mail three or four weeks before the primary, ample time to enable them to understand it, neither this court nor any other court in Christendom would have held the measure invalid, merely because the publicity pamphlets found their way to the voters through the postmasters of the state rather than through the officers of the nineteen thirty-six primary election. Under such circumstances it would undoubtedly have been held that the law had been substantially complied with and as long as this result was possible the court should not have enjoined action that might have brought it about. If the Secretary of State had been permitted to place the title and number of the measure on the ballot and then failed to send out the publicity pamphlets, the validity of the measure, if approved, would then have been open to attack. *Page 466
The suggestion in the majority opinion that there was no way by which the expense of sending the pamphlets by mail could have been cared for, since the time for compliance with the Angius Law which provided the only method of spending public funds to distribute them had long since gone by, is, in view of the fact that the Secretary of State could and might have done it himself, wholly immaterial in an action to enjoin that officer from placing the matter on the ballot, but would be important if the action were one in mandamus to compel him to place it there and this carried with it the duty to distribute the pamphlets at his own expense, since he could not be compelled to perform such an act unless the funds with which to take care of it had been provided. But the Secretary of State may have realized that he had made a mistake in failing to obey the Angius Law and desired to rectify it by mailing the pamphlets at his own expense, either with or without the hope that the legislature might feel that he had honestly tried to comply with that law but due to the lack of time it allowed him had been unable to do so, and would reimburse him, and as long as this possibility existed he should not have been enjoined from placing the title and number of the measure on the ballot.
It is my judgment that the order of the trial court enjoining the Secretary of State from doing this was erroneous and should be reversed. *Page 467