The questions presented in this cause were deemed by this court to be of sufficient importance to occupy its time continuously from the 25th of November, 1931, until the 16th day of December, 1931; during which time all members of the court, with few exceptions, were in attendance. It was of sufficient importance that several hearings were had and the court spent many days in conference to determine the issues involved and the questions presented.
The first issue presented to the court was a protest against the initiative petitions brought to this court by appeal from the Secretary of State by the Honorable S.P. Freeling, protestant. The question raised by this protest, which the majority of this court deemed sufficient, which protest was believed by a minority of this court, including the writer of this opinion, as insufficient to put in issue the validity of the petition filed with the Secretary of State.
The seven initiative petitions involved herein were filed with the Secretary of State, October 31, 1931.
Initiative Petition No. 112 was a proposed statutory law, the number of signatures on the petition was 121,401. The number necessary to call an election on this measure was 40,913. The signatures in excess of the number necessary to call an election was 80,488.
Initiative Petition No. 115 was a proposed statutory law. The number of signatures on the petition was 120,661. The number necessary to call an election on this measure was 40,913. The signatures in excess of the number necessary to call an election was 79,748.
Initiative Petition No. 116 was a proposed statutory law. The number of signatures on the petition was 120,992. The number necessary to call an election on this measure was 40,913. The signatures in excess of the number necessary to call an election was 80,079.
Initiative Petition No. 117 was a proposed statutory law. The number of signatures on the petition was 121,187. The number necessary to call an election on this measure was 40,913. The signatures in excess of the number necessary to call an election was 80,274.
Initiative Petition No. 113 was a proposed constitutional amendment. The number of signatures on the petition was 119,916. The number necessary to call an election on this measure was 76,713. The signatures in excess of the number necessary to call an election was 43,203.
Initiative Petition No. 114 was a proposed constitutional amendment. The number of signatures on the petition was 120,257. The number necessary to call an election on this measure was 76,713. The signatures in excess of the number necessary to call an election was 43,554.
Initiative Petition No. 118 was a proposed constitutional amendment. The number of signatures on the petition was 120,263. The number necessary to call an election on this measure was 76,713. The signatures in excess of the number necessary to call an election was 43,550.
It can be seen from the face of the petitions that on four of these initiative petitions there must be found, more than 75,000 invalid signatures before the same could be declared invalid. On the three constitutional questions there must be more than 43,000 invalid signatures before this court would be authorized to declare the petition invalid or insufficient.
I am of the opinion that no one connected with this case and familiar with the facts above set out ever believed for a moment that there was any likelihood or possibility of the protestant presenting to this court any evidence of the invalidity of the great number of signatures necessary to invalidate the petitions in question, and it will be shown herein later the protestant admitted without offering a witness that the petitions were valid. The administration of justice is a practical affair and should be administered with the use of common sense in dealing with the affairs of mankind and not by strained or technical constructions, which are not justified by the law or the facts. However, since the protestant abandoned *Page 268 the protest, admitting thereby that he has taken up the time of this court for purposes other than trying of the issues involved and thereby convicting this court or a majority of the member's thereof of taking up its time that belonged to the people of this state, which should be devoted to determining the legal question before it for determination, in discussing and in considering a matter which was not sufficiently pleaded in the protest and which the protestant did not offer to prove by the offering of a single witness.
For this reason, I am of the opinion that this court should hold that a protest that does not state facts, but only mere conclusions, based on belief, is invalid and insufficient to raise any issue. This court from time to time continued this matter upon the application of protestant, without any showing of diligence on the part of the protestant in procuring witnesses, without any showing that if witnesses had been procured there would be any testimony material to the issues joined, and thereby permitted protestant to take up the time of this court and continue said hearing over the protest of respondent indefinitely and thereby deprive respondent of his constitutional right and depriving the citizenship of Oklahoma, who are vitally interested in the determination of these matters, of their right to have this matter speedily determined, which was contemplated by the Constitution of Oklahoma and directed by the statutes of this state.
On the 25th of November, 1931, R.A. Sneed, Secretary of State, certified to the Governor of the state of Oklahoma the finding that each initiative petition had sufficient signatures to submit the same to a vote of the people. The protestant appealed to this court.
On December 4, 1931, the Governor of the state of Oklahoma called an election submitting to the people of the state of Oklahoma, for their rejection or approval at the polls, Initiative Petitions Nos. 112, 114, 117, and 118.
Thereafter, on December 7, 1931, protestant, S.P. Freeling, filed in this court an application asking that the State Election Board be made parties to this action and that Frank C. Carter, State Auditor, be made a party to this proceeding, and prayed that an injunction be granted enjoining the State Election Board from holding an election called by the Governor of the state of Oklahoma, on the ground that the call was invalid, and prayed that the State Auditor be made a party and be enjoined from issuing warrants or paying expenses of said election on the ground that the Governor was unauthorized to issue a proclamation calling an election on December 4th, for the reason the matter was then pending before this court on appeal from the Secretary of State; and this court by its appropriate order made Frank C. Carter and the State Election Board parties to this action, but later amended said order and released the said election board and retained only the State Auditor, Frank C. Carter, as a party to this cause. The prayer of this petition was that this court determine that the election called by the Governor be invalid; that the expenses of the election could not be lawfully paid.
This court upon application assumed jurisdiction to determine said matter. An opinion was prepared and filed in this cause which denied the injunction requested and failed to pass on the other questions raised. And this case stands now before this court with Frank C. Carter a party to said action, made so by an order of a majority of this court.
On January 11, 1932, S.P. Freeling, protestant, filed his motion to dismiss said cause, which should be adjudged as an abandonment of said protest.
Frank C. Carter, a party to this action, filed his answer on December 10, 1931, in which he asks affirmative relief of this court, which is as follows:
"Wherefore, premises considered, this defendant submits this his answer and prays the court for such an adjudication of the issues involved herein as will enable him to properly perform the duties of his office in the auditing and allowing of claims which may be filed against the appropriation above mentioned."
The majority opinion filed herein does not dispose of any of the questions presented.
I am of the opinion that on the four initiative petitions seeking to enact laws in which there were more than 75,000 signatures more than necessary to submit the same to the people, this court should enter its judgment that said petitions are sufficient, and on the three petitions for proposed constitutional amendments, which contained more than 43,000 signatures more than necessary to submit the same, that this court should enter its order and judgment finding the same sufficient in law and to conform to the Constitution and laws of this state to submit the same to the voters of the state of Oklahoma, in the manner provided by the Constitution and the laws of the state of Oklahoma.
The majority opinion does not decide this *Page 269 question. The question raised on the application that made Frank C. Carter a party to this action, who has filed his answer herein, raised the question of the proclamation of the Governor calling an election on four of these measures. This question should be decided, not evaded, as the rights of the people of the state of Oklahoma are involved.
I am of the opinion that the proclamation of the Governor calling said election was valid and that said measures were properly submitted to a vote of the people at the time the same were submitted.
Section 1 of article 5 of the Constitution of Oklahoma reserved to the people the right to propose laws by initiative and referendum.
Section 2 of article 5 of the Constitution of Oklahoma provides that 8 per cent. of the legal voters have a right to submit a legislative matter and that 15 per centum of legal voters have a right to propose constitutional amendments.
Section 3 of article 5 of the Constitution of Oklahoma provides in part as follows:
"Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature, shall make suitable provisions for carrying into effect the provisions of this article."
The right of the Governor to submit these questions to the people is granted by the Constitution when it appears that 8 per cent. on legislative matters and 15 per cent. on constitutional matters of the voters have signed the petitions and the same are filed with the Secretary of State and addressed to the Governor. Neither the Legislature, the courts, nor any other authority, civil or military, has authority to prevent, hinder, or delay the Governor in calling the election when there are sufficient signatures filed with the Secretary of State, which under the Constitution authorizes the Governor to call an election.
The four measures which were presented to the people for their rejection or approval by the Governor had many more valid signatures than were necessary to authorize the Governor, under the Constitution, to call the election on said measures.
The call having been authorized under the Constitution by the filing with the Secretary of State the initiative petitions with sufficient signatures thereon, then, under the Constitution, it was the duty of the Governor to call the election. The authority to call the election being by the Constitution placed in the Governor of the state of Oklahoma, it cannot be limited or denied by the Legislature or the courts.
The Constitution having vested in the Governor sole authority to call the election and submit the initiative matters to the people, and the initiative petitions having contained sufficient and valid signatures, under the Constitution, to authorize the Governor to call the election, the call was valid. The right to appeal to the Supreme Court of Oklahoma from the finding of the Secretary of State is a statutory right and said appeal is governed solely by the statute; and the only question to be determined by the court was, Were sufficient valid signatures attached to the petition to authorize the calling of the election? The statute does not provide a supersedeas, nor was there any application made to this court to supersede the finding of the Secretary of State that the petition so filed contained sufficient valid signatures to authorize the calling of the election.
The Supreme Court of Oregon held that an appeal did not suspend the operation of the referendum in the case of State ex rel. Carson, Dist. Atty., v. Hoss, 292 P. 324.
In the case at bar the law of Oklahoma grants no stay in the proceedings pending in appeal to this court. In Oklahoma the powers of government flow from the people, and the people of Oklahoma, after vesting legislative authority in the House and the Senate, reserved to themselves the power to propose laws and the power to enact or reject them at the polls. This reserve power reserved to the people by their Constitution, if it could be limited by the Legislature or superseded by order of the court, then this power would not be absolute, but would be a conditional power subject to the act of the Legislature or to the action of the courts of this state.
It is true the Constitution does not prohibit the Supreme Court of Oklahoma from determining matters of purely judicial nature, but all the power and jurisdiction the Supreme Court of Oklahoma has is given it by the Constitution of Oklahoma and no legislative power nor power to control legislation, in its discretion or the people acting in a legislative capacity, was granted to the Supreme Court to interfere with the Legislature or in any way control the right of the people to act in a legislative capacity.
The Supreme Court of Oklahoma is without power or jurisdiction to call an election on an initiative petition or to prevent the people from voting at an election called on any proposed measures. *Page 270
In my opinion, the proclamation of the Governor calling this election was a valid proclamation, and his act was constitutional, not only authorized by the Constitution but commanded by the Constitution. The assumption of authority by the courts not granted by the Constitution is usurpation of power and should not be indulged in by the courts of this state.
I am of the opinion that this court should hold that the election was regularly and properly called and that the men who rendered services as election officials should be paid for said service in the manner provided by law for such pay. This is one of the questions presented in the case at bar which the majority opinion reserved for future consideration. It should be decided by this court for the reason by vote of the majority of members of this court it was made an issue in this cause, and having made it an issue and many people becoming vitally interested in the result, said issue should be determined and this court should determine it one way or the other that the many election officials in this state, and the people who have claims for services rendered, and the State Auditor, who was made a party in this cause, can know their rights.
It should be determined because if each election official in the state of Oklahoma must bring a separate action to determine his legal rights in this matter as to whether or not he is entitled to compensation for his services, it would require a multiplicity of suits and the expenses would be too great and the litigation continued over a number of years, which would not only take the time of the litigants but the time of the courts of this state, when this matter could and should be settled by an appropriate decision of this court at this time.
I am of the opinion that this court should settle the question of the legality and force and effect of the Governor's call on the four measures submitted for the reason said action will arise again to be presented to this court in another form and require the time of this court to determine said matter and leave the matter of vital interest to more than 100,000 citizens of this state as to their rights under the Constitution and laws of this state undetermined, when the citizens through their representatives have appeared before this court and requested that said matters be determined.
Even though should this court determine that the measures submitted were not submitted as authorized by the Constitution and laws of this state (which I do not agree is correct), then that determination would not make the election invalid, but would make the result of the election invalid. The results of an election being invalid does not affect the right of the election officials to compensation for holding the election and performing the election duties prescribed by the statute that said election officials, shall perform in holding elections in this state. Can it be said that an election official, when called upon by his duly authorized superiors to appear in a precinct and hold an election, must know in advance before an election — that he must determine for himself that the results of that election would be legal before he could be compelled to serve or before he would be entitled to compensation for holding that election? Such a rule of law, to my mind, would require each election official, before he performed the statutory duties enjoined upon him by the statute and Constitution of this state, to determine whether or not the results of the election would be legal and valid before he could act without danger of being denied compensation for services so rendered.
Could a juror be denied compensation for his services for the reason the jury failed to agree on a verdict and reached no legal result, or that the trial court did not have jurisdiction of the cause tried by the jury? Could a sheriff be denied compensation in his effort to capture a criminal for the reason he failed to capture the criminal, or could it be said that a sheriff could be denied compensation for his services rendered in capturing a man who upon a subsequent trial was acquitted? The election official was called to perform a duty, that duty was prescribed by the statutes of this state, the compensation allowed is fixed by the statute of this state; and to say that he was not entitled to his compensation for services rendered in performing his duty enjoined upon him by statute and a compensation fixed for performing that duty by statute, in my opinion, is a most unreasonable construction of a statute, and I believe this court should hold and determine and so say by an opinion that the election officials who held the election on December 18, 1931, are entitled to compensation for the services so rendered.
The majority opinion states on page 258, that this court adjudged, if said State Auditor paid out state funds, that he would do so at his peril and at the peril of his bondsmen. I do not agree that this court so adjudged said matter, for the reason that it was not an adjudication of any question before this court. The only thing determined in that case was that the application for injunction should be denied. The question of peril of *Page 271 the State Auditor and his bondsmen was not determined and was not an issue before the court, for the reason the State Auditor in his answer had asked this court for an adjudication of the issues involved as will enable him to properly perform the duties of his office, and the State Auditor is entitled to such an adjudication.
Having failed by the majority opinion to determine the validity of the initiative measures presented to this court for determination; having failed to determined the right of the State Auditor to pay the claim of election officials, and having failed to determine whether or not the proclamation of the Governor calling the election was valid or invalid, and these being the only questions before this court for proper determination, the opinion prepared and filed in this case can serve no purpose unless it can be said that the acts of the Chief Executive in this state recounted and criticized in the opinion are a proper matter for judicial determination in this court.
The Chief Executive of this state heads a co-ordinate branch of this government, coequal in power and authority in the executive department of this government and co-equal in power and authority with the Supreme Court in the judicial department of this government, and co-equal in power and authority with the Legislature in the legislative department of this government, and this court is not authorized or empowered by the Constitution or the laws of this state to control the executive department of the government; and it is not proper that this court should burden the files of this court with criticism of the Governor of this state by placing said criticism in an opinion of this court to be made a part of the public records of this court and filed in the archives of this court.
I must refrain from copying the language used. This court, in the case of Hoover v. State, 73 Okla. 112, 175 P. 117, in the 2nd paragraph of the syllabus, said:
"A brief in no case can be used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or professional discourtesy of any nature for the court of review, trial judge, or opposing counsel. The language objected to here in the brief of plaintiff in error is offensive, impertinent, insulting, unwarranted, and unjustified, and as a brief this court cannot recognize it, and it is our duty to protect the files of this court from becoming the permanent receptacle of such a document."
This cause was cited with approval in Erwin et al. v. Harris,124 Okla. 225, 254 P. 718, and it was said in the body of the opinion at page 225 of the Oklahoma Report:
"Such statements are as foolish as they are mischievous. Counsel has need of learning the ethics of his profession anew, if he believes that vituperation and scurrilous insinuation are useful to him or his client in presenting his case."
In the case of Pancoast, Adm'r, et al. v. Eldridge,127 Okla. 146, 259 P. 863 this court quoted with approval from Hoover v. State, supra, as follows:
"A brief in no case can be used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or professional discourtesy of any nature for the court of review, the trial judge, or opposing counsel."
The criticism of the Chief Executive contained in the majority opinion is unnecessary for the determination of the issues before this court, and this court having held that a brief that is used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or professional discourtesy of any nature should be stricken as not proper, to burden the files of this court with briefs expressing disrespect or professional discourtesy.
Under the cases cited, I am of the opinion that the criticism contained in the majority opinion of the Governor of this state is unwarranted and can serve no useful purpose in the determination of the issues involved in this cause and should not be made a part of the permanent files of this court. This court has a constitutional and legal right and it is its duty to determine if the act of the Chief Executive in calling the election was invalid, to say so, or if it was valid, to say so, but to refuse to pass on these questions and then fill the opinion with criticism, in my opinion, is not warranted by the record in this case.
There is a growing tendency among some of the citizens of this country of ours to override all authority that seeks to confine their activities within the bounds of the law until we are confronted in some of our major cities with gang warfare, with robberies, murders, and gang kidnapping, reoccurring daily; and the highest court in this state should not encourage those who would overthrow all legal restraint by criticism of public officials whose sworn duty it is to enforce the laws of our state and to uphold the Constitution and protect the rights of its citizens. *Page 272