The protests in these cases should be dismissed on the grounds that said protests are wholly insufficient and do not allege any fact sufficient to constitute an issue thereon.
Owing to the fact that this court has heretofore, in my judgment, misconceived the construction to be placed on section 6631, C. O. S. 1921, I desire to state my views thereon.
In order to fully present my analysis herein it is necessary to recite certain provisions of our State Constitution so that we may come to a better understanding of the statute under which the appeal is taken. The makers of our Constitution provided the fullest measure whereby the people of this state were to be recognized as the final source of power and authority, for in section 1 of the Bill of Rights, it is stated:
"All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States."
Section 1 of article 5 of the Constitution provides:
"The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."
Section 3, art. 5, of the Constitution provides in part:
"Petitions for the initiative and the referendum shall be filed with the Secretary of *Page 263 State and addressed to the Governor of the state, who shall submit the same to the people."
Section 2 of article 5 provides:
"The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and 15 per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such Petition shall include the full text of the measure so proposed. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted. The ratio and per centum of legal voters hereinbefore stated shall be based upon the total number of votes cast at the last general election for the state office receiving the highest number of votes at such election."
Section 3 of article 5 provides that the Legislature shall make suitable measure for carrying into effect the provisions of this article, which refers, of course, to both initiative and referendum petitions.
In my judgment the Legislature clearly used the word "suitable" advisedly to the end that legislation should be enacted to effectuate rather than to destroy the rights reserved by the people under the power of initiative and referendum, for we find the word "suitable" to be defined: "Capable of suiting; fit or adapted for a specified purpose; applicable; appropriate." New Standard Dictionary, Funk and Wagnalls.
Indeed the Legislature, compatible with the power reserved by the people, did enact legislation for the purpose of safeguarding and protecting the procedure that was to be followed.
In this case we are dealing with initiative petitions only. In section 6625, C. O. S. 1921, a form for initiative petitions is set forth, also other provisions of procedure which should be substantially followed.
Section 6626, C. O. S. 1921, defines and sets forth the requirements of initiative petitions in the following language:
"Each initiative, petition and each referendum petition shall be duplicated for the securing of signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheet for signatures is hereinafter termed a pamphlet. On the outer page of each pamphlet shall be printed the word 'Warning,' and underneath this, in ten-point type, the words, 'It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter.' Not more than 20 signatures on one sheet shall be counted."
Thus it is seen that it is a felony for any one to sign an initiative or referendum petition under any other name than his own, or knowingly to sign their name on a petition more than once or to sign such petition when one is not a legal voter. Penalties are provided in order to protect the sanctity of such petition.
Section 6631, C. O. S. 1921, is the only section of the statute upon which an appeal upon the sufficiency of a petition may be had.
It is my purpose to show that section 6631, supra, when read carefully, is easily understood. As I interpret that section, it means that when an initiative petition conforms in substance to the requirements of the statutes, and shows on its face that the required percentage of legal voters, with their post office addresses, have signed said petition and that said signatures together with their post office addresses are given and that said signers thereof are legal voters and that the circulator then signs and makes an oath as to the correctness of his statements before an officer authorized to administer oaths, then, in my judgment, the petition is sufficient to be submitted to the officer clothed with power to call an election. In the instant case the particular question that the Secretary of State was to decide after hearing on the protest presented to him is to be found in section 6631, supra. For it is there provided and pointed out he is limited to one finding, to wit: "After such hearing the Secretary of State shall decide whether such petition be in form as required by the statutes." If it is sufficient on its face, the Secretary should so hold. If not, he should so hold. I emphasize the statement that the Secretary of the State is confined to the question as to whether the form of the petition is substantially as set out by section 6625, supra. The form means whether or not the petition on its face shows that the required number of legal voters with their post office addresses has been signed to the said petition; as to whether or not the circulator has made oath that said signers are legal voters and their post office addresses given are correct; and that said circulator must then sign said oath and the jurat of the officer administering the oath must be attached to the affidavit. If all the requirements are met and shown on the face of the petition, it is then established as a provisional procedure. Of itself it creates no law or enactment, it is *Page 264 simply used as a procedure for the purpose of inaugurating an election thereon.
Section 610, C. O. S. provides:
"An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, or in any other case permitted by law."
If the affidavit of the circulator establishes nothing, why require it?
Again returning to section 6631, supra, it states that after such hearing the Secretary of State shall decide whether such petition be in form as required by the statutes, and his decision shall be subject to appeal to the Supreme Court of the state.
The appeal is taken from the question that was submitted for decision to the Secretary of the State with all the limitations thereon. The scope of inquiry cannot be broadened by an appeal.
Before we reach the next provision of section 6631, supra, we state that it is therein shown that it is the spirit and intent of the statute that a speedy hearing be had thereon, for it is therein stated:
"If the court be at the time adjourned, the Chief Justice shall immediately convene the same for such hearing."
We know of no other provision of the statutes of this state so imperative in nature so far as they relate to a speedy determination of a cause. By reason of this statute it is intended that the court shall without delay pass upon the sufficiency of a petition as shown upon its face.
It is further provided that such court shall give such cause precedence over all others.
It occurs to the writer that if it were permissible to go behind the genuineness of the names shown on the petitions, consisting in this case of several hundred thousand names, the immediate assembly of the court would prove of little value.
Section 6631, supra, further interprets the character of judgment that the court may render if the petition is insufficient, for therein it is said:
"If the court shall adjudge such petition insufficient, the parties responsible for same shall have the right to correct or amend their petition to conform to the opinion of the court, provided said amendment or change is made within five days."
Here the Legislature had in mind that the court on appeal should deal only with the form and face of the petition, and if corrections such as could be made in the form and face of the petition, such corrections were permissible. In other words, it was only in these matters that could be corrected on reversal and which appear on the face of the petition that the court was permitted jurisdiction over on appeal. We here inquire how and in what manner could the court cause an amendment to be made that would cure forgeries that appeared on the face of the petition? How and in what manner would the court order an amendment be made to a petition signed by illegal voters? How and in what manner could a circulator who did not know whether or not certain signatures were by legal voters be cured by an amendment?
The court under the appeal statute can only ascertain whether or not there are sufficient number of names appearing on the face of the petition; whether or not the circulator has verified by affidavits the correctness of said names and the signatures thereto of the legal voters with their post office addresses.
Neither the Secretary of the State nor the court is permitted to go behind the signatures as they appear upon the face of the petition unless by such appearance upon the face of the petition it shows plainly that certain signatures are forgeries.
If we accept the theory that an issue may be made upon the genuineness of the several thousand names by reason of forgeries or that the signers on said petition are not legal voters or that the circulator who swore did not personally know that the signers thereof were legal voters, we will then go into the issues that may prolong the trial before the Secretary of State for weeks, months, or a long term of years, depending largely upon the resourcefulness of counsel; and after that officer has made a decision the protestant may file an appeal therefrom, lodge the same in this court, and this court again go over the long route of investigation that may extend into a duration of time lasting for weeks, months, or even years. Certainly, if this theory is accepted, an issue of fact may be formed upon each of the several thousand names attached to the petitions and many witnesses may be called upon to testify relating to each individual signer. Not only may hundreds of witnesses be called, but they may be increased to thousands, thereby delaying the petition for possibly years.
If issues of this character may be raised and the protestant permitted to go behind the face of the petition, we may just as well strike from our Constitution the privilege *Page 265 of the initiative and referendum, for judicial procedure would render them impotent.
If by legal procedure we may hamper, strangle, and paralyze by trial the provisional procedure of the initiative and referendum, the electors who propose legislation by initiative route will be practically forever arrested by legal processes of this court. It is true that in some former opinions the court has passed upon the sufficiency of initiative petitions, but I find no case where the sufficiency of a protest was attacked, nor do I find a definite interpretation of section 6631, supra, as here pointed out.
It clearly appears to me that the appeal statute, requiring with emphasis that on appeal the Supreme Court must immediately convene and give precedence over all other matters, is to be construed to the end that neither procedure nor the trial thereof shall be long delayed.
Not only did the Legislature in section 6631 provide:
"After such hearing the Secretary of State shall decide whether such petition be in form as required by the statutes"
— but the Legislature again reaffirmed this principle, for in Session Laws 1919, chapter 161, it is provided:
"The charter so ratified may be amended, revoked or abolished by proposals therefor submitted by the legislative authority of said city to the qualified electors thereof to be voted for at any general or special election or said proposals to amend, revoke or abolish such charter may be submitted by a petition signed by a number of qualified electors residing within the corporate limits of such city equal to 25 per centum of the total number of votes at the last general or special election held in such municipality and the proceedings shall be construed liberally in favor of the petitioners. Upon the filing of a petition, signed by the required number of electors, qualified to vote in the proposed election, as the same appears on the face of the petition." Sec. 2.
In my judgment any law passed by the Legislature that would permit an investigation or procedure to be drawn out before the Secretary of State upon questions of fact for several years, and then upon decision made by the Secretary of State, then an appeal may be had to this court and here drawn out for several years, that such proceeding would be wholly unconstitutional, for in that it would not be suitable to legislation compatible with the provisions of the Constitution relating to initiative and referendum reserved by the people. This court should not for a moment tolerate any such interpretation, for it would permit issues to be formed that would destroy by delay the right of those seeking under a petition sufficient on its face to carry measures to an election by the people.
Not only do we accept in court provisional measures upon their face, but they are accepted in commercial and professional affairs of life. Titles to real property amounting to millions are transferred upon the face or signatures to deeds duly acknowledged before proper officer. Abstractors compile abstracts concerning property in value that reach into millions of dollars; abstracts upon which lawyers deliver their opinion upon titles. These are accepted from records. These records are made up from instruments signed by the purported owners of real estate, and if on the face of the record it is shown to be regular and the instrument acknowledged before officers authorized to accept acknowledgments, the legal profession recommends the acceptance of titles on the face of the record.
The petition itself neither creates nor establishes a law. It seeks only to invoke proper procedure for the calling of an election.
The office of an affidavit may be used to set in motion judicial process of our court and thereby obtain provisional remedies. In this case, where thousands of electors, whose signatures and legality as voters have been established by affidavits, should they be denied their right of petition by judicial interpretation? I cannot so agree. It may be urged that it would be shocking to hold that the protestants could not attack forgery upon an initiated petition. If such forgery exists in any form, the circulator of such petitions is guilty of felony and the can find its redress by the due punishment thereof, but, on the other hand, if by judicial interpretation the courts can arrest the rights of electors by action of protestant and permit a trial to be had which would delay an election for years upon a petition which appeared in due form, such protestant commits a political wrong in which no redress may be had, and I cannot yield to any such doctrine in the face of a statute that is plain, unambiguous, a statute whose mandate requires of this court a speedy determination of one issue. Only one question is set out by the statute for determination, as follows: "Whether such petition is in form as required by the statute." That question is first submitted to the Secretary of State, and from his decision the same question is again submitted to this court with its limitations.
The requirement of the statutes is that the vital facts necessary to a sufficient petition *Page 266 be set forth, and the violation thereof is made a felony under the law, and the state may find its redress in the punishment of those guilty of violating the act relating to the initiative and referendum. On the other hand, if we hold that a protestant may go behind a petition regular in its form, that part of the citizenry of the state that is given the constitutional right to petition has no redress.
In the record of the proceedings had before this court on the 28th day of November, 1931, in this case, as shown by page 44 of the transcript, a short colloquy took place which is substantially as follows:
"Chief Justice: On that proposition I can surmise an action that might be filed that would seek to strike every name signed upon the petition as being forgeries, and the taking of testimony on each name where this occurs that would run into years in taking of testimony. Protestant: Yes, sir. Chief Justice: * * * And it could run into ten or twelve years of investigation on one petition, therefore, practically destroy the effect of the statute. Protestant: I realize that, and I realize the force of the suggestion of the Chief Justice."
Under the allegations of the protestant permitted by the court over the objections of the respondent, it would likely take months and possibly years in taking testimony in attempting to support the allegations of the protestant, and, therefore, the procedure under the interpretation given by the majority of this court is wholly unsuitable to the constitutional provisions relating to initiative and referendum. However, the climax is shown by the motion of the protestant to dismiss said cause and shows the unworkable proceedings of attempting to prove the allegations of the protestant.
The writer has at all times contended herein that if issues could be formed that would cause the taking of testimony on the genuineness of the signatures of several hundred thousand names the cost thereof would be prohibitive and the duration of time required to hear such evidence would in effect strike down the opportunity to furnish to the people an opportunity to pass upon questions under the Initiative and referendum.
The protestant in this case, when confronted with the task of proving the allegations, finds that it is impossible to do so on account of the prohibitive cost therein, and on the 11th day of January, 1932, in a motion to dismiss said cause stated and alleged in paragraph 1 of said motion:
"That to try said cases on their merits would cause an expenditure of many thousands of dollars in paying the expenses of witnesses from every section of Oklahoma, which expense would be so great as to be prohibitive."
Here it is shown that the protestant surrenders by reason of the weight of his own allegations set forth in his protest. He created the issues through his pleadings. His pleadings were sustained by a majority of the court over the protest of the respondent, and finally the protestant by his own motion admits that he is overwhelmed by virtue of this undertaking and moved to dismiss said cause.
The writer has contended that this would be the ultimate result of every case wherein it was permitted for the protestant to go behind the face of the petition. For to permit a trial on alleged forgeries not shown on the face of the petition would involve cost that would be prohibitive and a duration of time that would defeat the submission of proposed measures.
The Secretary of State is confined, under section 6631, supra, to but one question and that is whether said petition be in form as required by statute, and that his decision shall be subject to appeal to the Supreme Court of the state. Of course, on appeal to this court the same question is submitted for decision. The procedure on a contest that is either prohibitive in cost of determining the same or duration of time that might lengthen into years was never contemplated either by the Constitution of this state or the Legislature, but such is its effect under the holdings of a majority of this court.
I dissent from the opinion of the court herein for the reason that the protestant in his motion to dismiss said cause did not complain of any injurious act by any other department of the state government and the opinion herein is not justified by an attempt upon the part of the court to scold another department of the government.
It was never intended that the allegations of a protest should be so burdensome that none would be able to pay the cost of attempting to support said allegations or the defense thereto be so burdensome that none would be able to pay the cost of defending against the allegations.
The proceeding on appeal permitted by this court when followed to its practical analysis creates such a burden on a protestant and respondent that renders the case impossible of trial.
The judicial department of the state should and must be free to act fearlessly on any issue properly before it without any interference *Page 267 of any kind from any other department of the state, but it should await with judicial calmness issues of law that may be presented to it and at no time become a controversialist merely for the purpose of expressing its views on current issues of general interest.
The judicial department of the government will always receive the respect due it when it confines its jurisdiction and judgments to the issues before it for decision.
It is not necessary that it ever become jealous or controversial with other departments of the state government. When it acts within these limitations its judgments will be received with respect and approval.
This court, having heretofore erroneously made Frank Carter, State Auditor, a party to these proceedings, should by an opinion in this case dispose of the question as to whether or not the election officials who held the election on the 18th day of December, 1931, are entitled to payment.