The majority opinion of this court, speaking through Mr. Justice Hefner, is based largely upon the proposition that the writ of injunction is denied because of adequacy of some other relief. The suggested relief is an action at law upon the official bond of the State Auditor in the event this court should finally determine that the election of December 18, 1931, is invalid. That principle is error in its application, for the reason that the appropriated and now unexpended public fund is in the amount of $110,000. The official bond of the State Auditor is in the amount of $50,000. Therefore, as a mere arithmetic certainty, the suggested independent action at law would be inadequate to the extent of $60,000. Moreover, denial of right of injunction in the majority decision and finality of that promulgation of law would be a final adjudication of this ancillary cause. Therefore, the bond of the State Auditor in whatever amount would not be liable for the expenditures, for the reason that a final adjudication may be pleaded as res judicata, not only as to every issue decided, but also as to all issues that could have been properly determined.
Therefore, after finality of the judgment of the majority decision, the said State Auditor could expend this public fund, and if subsequently called to account in an independent action at law upon his official bond, successfully plead and prove that such expenditures were made in reliance upon this court's final adjudication. He could likewise establish that he, as such officer, relied in making such payments upon the presumption indulged that public officers perform their official duty, which is to say that the Secretary of State in the main action now before us found an acceptance of the petitions in the initiative measures (which in fact and in law he did not), that the Governor's executive order proclaiming the election of December 18, 1931, was lawful (which has not yet been declared by a competent tribunal); that said election is valid (a matter which the majority decision now promulgated declines now to determine); that the expenses of the election were incurred by officials in the discharge of their public duty by virtue of the law announced in executive orders of the Governor; which executive order is, in fact, a pronunciamento known only to despots and their subjects, such as orders in council issued by dictators, a decree such as promulgated by kings, commandments of God, but not known to American jurisprudence, nor to American people by reason of such provisions of fundamental law as contained in article 1, sec. 4, Constitution of Oklahoma. Consequently, if said executive order may be now or hereafter adjudged to have such force, it is omnipotent — it is eternal — it is binding upon us all, here and hereafter, now and forever; it makes precedent for future despotic rule contrary to all law. It paves the way for raid after raid upon the public treasury of this state and extraction therefrom of the people's money in payment of claims unauthorized by law and without any authority whatever save and except such an executive order. By this adjudication this court decides that it as such will not, until after the horse is stolen, close the barn door, despite the fact that each! Justice assuming his office held his hand to Almighty God, and, by the most solemn of oaths, swore, as provided by the Constitution of Oklahoma, section 1, art. 15:
"That I will support, obey and defend the Constitution of the United States and the Constitution of the state of Oklahoma, and will discharge the duties of my office with fidelity: * * * that I have not knowingly violated any election law of this state. * * *"
Since every Justice has sworn that he has not knowingly violated any election law of the state, and since he has sworn that he will discharge the duties of his office with fidelity, it seems but logical that he, in the discharge of his duties, should not knowingly sanction violations of election laws. It is the Justice's duty not only to know, but as well to pronounce and declare the law, which is inclusive of the election law.
The pronouncement of law now made by this court, speaking by and through Mr. Justice Hefner, is based largely upon the decision of this court in McAlester, Secretary of the Election Board, v. State ex rel. Short, Attorney General, 95 Okla. 200,219 P. 134, wherein this court spoke through Mr. Justice Branson. Therein it is shown that the State Auditor (paymaster) was not a party to the action, and, of course, this court was powerless to enjoin payment of public funds in that action. Whereas, in the cause at *Page 230 bar, the State Auditor has been, by the vote of Mr. Justice Hefner and by the order of this court, made a party defendant in order that this court might acquire jurisdiction to enforce its judgment by the writ of injunction, if found to be necessary, against the proper state officer, in proper time, in this cause. As in that decision shown, several constitutional amendments were by the Governor's proclamation submitted to the voters at an election called for October 2, 1923. The public records show that what was known as Initiative Petition No. 79 was attempted to be submitted at the election held that day. Therein the Election Board was a party and the election itself was sought to be enjoined. Herein the Election Board is not a party and no judgment can be effectuated enjoining the holding of an election, either lawful or under color of law. That case contained no allegation of a taxpayer being a party. To the contrary, the action was shown to have been instituted by the then Governor, acting through the then Attorney General. In the cause before us the applicant for injunctive process alleges that he is a taxpayer, and there is no denial of it.
While the majority opinion herein purports to be based upon the case of McAlister v. State, supra, the real basis for the opinion is the case of City Council of McAlester et al. v. Milwee et al., 31 Okla. 620, 122 P. 173, cited and quoted from in the former case. But in the latter case, the city treasurer was not a party. The relief sought was not against payment of expenses incurred or about to be incurred in holding the election, but was to enjoin the holding of the election in the one case and calling the election in the other. It is in deference to the rule there announced that this court declined to make the members of the State Election Board parties in this case. It was thereby recognized that this court would not enjoin the holding of an election at the suit of a taxpayer, or otherwise. The cases cited and relied upon in the majority opinion are therefore not controlling. I assent to the rule there announced for the reasons stated in my views of what the law should be declared to be hereinafter set out.
I assert that the true rule governing the case is that stated in Simpson v. Hill, 128 Okla. 269, 263 P. 635. There the very questions presented were involved. There the action was brought by a citizen and taxpayer and the question of alleged illegal expenditures from the state treasury was the issue. Therein it was said:
"The above declaration of the law of the state of Oklahoma on the subject here in question might have been evaded at this time, but this court is not unaware that it would be called upon to determine this exact question, and we have acted upon the principle that it is our duty rather to embrace than to repel the settlement of uncertainties."
Unquestionably, the same situation confronts this court in the instant case. Furthermore, the State Auditor has been made a party to this action and is now before the court. He is entitled at the earliest possible moment to have the question of his right and authority to expend public funds in payment of expenses incident to holding the election settled. It is vital to him for his protection and the protection of the sureties upon his official bond. He is entitled here and now to have the law declared. If this court should decide that the executive order of the Governor calling the election, as it was, is valid, and the election to be held thereunder valid, then the State Auditor could, with full confidence in his authority so to do, issue the warrants in payment of the necessary expenses thereof. But for this court to say merely that the election cannot be enjoined, and reserve the question as to whether the election, when held, would be so held without warrant of law until after warrants had been issued by the State Auditor, and at the same time say that the auditor would issue such warrants at his peril, is but to lay a trap for the auditor and his bondsmen. This court should have the courage here and now to say that the election has been legally called or that it has not. If the call is legal and valid, the voters, when they go to the polls on December 18th, will be performing an act which will either enact the proposed measures or some of them into law, or defeat them or some of them. If the call is illegal and void, the voters will at void elections at most be performing no legal function other than informally expressing their wishes in the matter as citizens. They ought to know in what capacity they are acting when they go to the polls. For this reason, I assert this court should declare the law on the question before it, instead of refusing so to do and in effect merely say that the election cannot be enjoined and leave this real question unsettled.
The author of the majority opinion and two of the Juseices concurring concurred in Simpson v. Hill, supra. I also concurred therein. In order to show my uniform adherence to these views, it is pardonable to say that I asserted before the Senate of the state of Oklahoma sitting as a Court of Impeachment, and at a time when it was sought to *Page 231 sever my official head for and on account of my actions in that case, that I had written that per curiam opinion. I thought It was correct. I still think so.
Having pointed out what I think to be the defects of the majority opinion I shall now devote myself to a statement of what I think the law to be:
For a proper determination of the questions involved, it is necessary to some extent to consider the theory upon which our state government is based.
The greatest document at any one given time penned by the hand of man contained the declaration:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and pursuit of happiness. That to secure these rights governments are insituted among men, deriving their just powers from the consent of the governed."
Those enumerated are basic rights justifying the existence of government. Included within these basic rights is the individual citizen's privilege of participation in government.
Prior to the establishment of our nation as an independent government, and in order to secure basic rights, various experiments had been made in forms of government, such as the patriarchal, the clan, the feudal, the monarchial, theocratic, republican, democratic, socialistic, the communistic. There were fusions and modifications of all these.
The forms of government existing contemporaneously or before the establishment of our nation were largely centralized, so that as one governed by them the individual citizen had little or no voice in government. Our forefathers, enlightened by the experiments in government, ordained and established a nation designed to more fully protect rights, both alienable and unalienable, which was, and ever had been, neither a pure democracy nor a monarchy. They chose rather to establish one which has been termed "republican" in form. Oberholtzer says:
"That term has never been accurately or satisfactorily defined and is indeed so vague and uncertain in meaning that it would perhaps include any government whose chief magistrate was not called eo nomine an emperor or king."
Likewise, the term may denote a government that is not in fact a pure democracy. The word "republican" was derived from the French language — "republique," and the Latin — "res publica" (having to do with things — affairs) res, and (concerning the public) publicus or publica, which means a state or commonwealth in which the sovereign power resides in a body of the people and is exercised by representatives selected by and responsible to them.
"There has never been the slightest doubt in the minds of publicists who have written of our institutions as to where sovereignty resides. It resides with the people. They are the original source of the government's authority. It is with them, as the object of its activities, that the state exists."
The word denotes the authority by which a state is governed, yet it is used to designate states differing widely in their Constitution, for there was the ancient Roman Republic, which was originally an aristocracy under the control of the patrician class, and the republics of ancient Greece; there is the modern Switzerland, which may be classed as a democracy, with the political power vested in all of the citizens. As applied to ancient Greece, the citizens consisted of a selected class, but with regard to modern Switzerland, the political power is vested in the whole body of freemen. There were medieval Italian republics, which were but limited oligarchies. The construction placed upon the word at the time of the establishment of the state of Oklahoma was exemplified, not only by the 45 states of the Union, but as well by the modern republics of the United States and France. All republics possess attributes of free democracies, by considering the citizens a unit and as paramount in the objective of government, but departure from free democracy is present in the meaning of the word, by that phase of it which relates to a body of men in whom authority is imposed and sometimes referred to as collective sovereignty. Withal, republican form denotes a state governed through agents of the people — a representative form of government. Thomas Jefferson declared that:
"Modern times have the single advantage, too, of having discovered the only device by which these rights can be secured, to wit: — Government by the people, acting not in person, but by representatives chosen by themselves."
Thus when the Constitution of the United States was formulated and adopted, the people did not, in their sovereign capacity, as individuals, meet and form a Constitution, but under rules and regulations of their own choice they selected delegates or representatives, as their agents, to formulate the Constitution for them which, in turn, was referred, for adoption or rejection, not to the individual citizens themselves, but to *Page 232 their agents or representatives selected by them, under like rules and regulations, for that purpose.
Ever since the adoption of the Constitution of the United States that government has functioned by and through agents and representatives under powers delegated by the people and not by direct action of the people.
The framers of our federal Constitution were endeavoring to establish a government which should have sway over a great territory and a large population which they knew would rapidly increase. They sought to guard against excess, not only of a centralized government, for that had foreshadowed the Revolutionary War, but as well to guard against those evils which had so often brought popular governments to destruction. They were about to consummate the most democratic movement that had ever occurred, on a grand scale, in the history of the world. They established a government which Lincoln called "of the people, by the people, for the people," and, in order effectively to create it, they adopted limitations which would make its continued existence possible. They had experienced the confederation. They knew that if the governmental energy became too much diluted and dissolved, the evils of anarchy would result and there would follow a reaction to the other extreme, with the resulting overthrow of popular rights. They saw clearly the line over which they might not pass in pretended devotion to the democratic idea without establishing government, of the demagogue, by the demagogue and for the demagogue, with the recoil in favor of autocracy or anarchy, sure speedily to follow. (Munro p. 167.)
This, in substance, is a republican form of government — It is simply a government by representatives.
Further effectuating the theory of national government, this state, as a member of the Union, must maintain a government, republican or representative in form, for by section 4, art. 4, Const. United States, it is Provided:
"The United States shall guarantee to every state in this Union a republican form of government; and shall protect each of them against invasion; and on application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic violence."
As a condition precedent to the admission of the state of Oklahoma into the Union as a member thereof, section 3 of the Enabling Act provided:
"That delegates to the (Constitutional) Convention * * * shall declare on behalf of the people of said proposed state, that they adopt the Constitution of the United States; whereupon the said convention shall, and is hereby authorized to form a Constitution and state government for said proposed state. The Constitution shall be republican in form * * * and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence."
Pursuant to the authority granted the Enabling Act, the people of the proposed state of Oklahoma selected delegates to represent them in the convention to form a Constitution and state government for the proposed state of Oklahoma.
The delegates so selected, as representatives of the people, met in convention at the time and place provided in the Enabling Act, and after adapting the Constitution of the United States (November 21, 1906) as required by the Enabling Act, formed a Constitution for the proposed state of Oklahoma, and thereafter by "ordinance irrevocable" accepted (April 22, 1907) the terms and conditions of the Enabling Act. The delegates, enlightened by the experience of the older states and profiting by the example of the more progressive western states, particularly the state of Oregon, observed that under the Constitutions of the older states, the people as individual citizens had been deprived of the right to institute legislation, to propose and adopt amendments to their Constitution, and to reject or repeal laws enacted by their representatives, which might be deemed by them, the people, to be detrimental to their interest.
These delegates, in their wisdom, in order to more fully secure basic rights, life, liberty and pursuit of happiness, deemed it necessary, and did incorporate in the Constitution of the proposed state of Oklahoma a separate article designed to reserve to the people themselves the right to propose laws and amendments to the Constitution and to enact or reject the same in elections to be held for that purpose, independent of the acts of their agents or representatives in the Legislature; also to reserve to the people the right at their own option to approve or reject by means of their vote any act of their agents or representatives in the Legislature. The right is only commonly known as the initiative and referendum. The provisions therefor are found in article 5 of the Constitution of the state of Oklahoma.
With this limited power reserved to the people, the Constitution as formed by the delegatess vested all other legislative authority *Page 233 in the Legislature, consisting of a Senate and House of Representatives (section 1, art. 5, Constitution). The members of the Legislature thus created are but the agents and representatives of the people under a republican form of government.
The Constitution, thus formed, was submitted to the people of the proposed state of Oklahoma for their approval or rejection at the ballot box. By an overwhelming majority, it was adopted (September 17, 1907 — 180,333 for, 73,059 against).
Another condition precedent of the Enabling Act (section 4) to the creation of the state of Oklahoma and her admission into the Union was that the Constitution of the proposed state so formed should be found by the President of the United States to be republican in form. A finding contained in the proclamation of statehood is:
"It appears that the said Constitution and government of the proposed state of Oklahoma are republican in form."
By section 1, art. 2, Bill of Rights, Constitution of Oklahoma, it is provided "all political power is inherent in the people." The component parts of political power are legislative, executive, and judicial. (Montesqui, Spirit of the Law.)
By section 1, of art. 7, Constitution, all judicial power was vested in the Senate sitting as a court of impeachment, a Supreme Court, and other courts, commissions or boards enumerated, and for which provision was made. It will thus be seen that the people, in the Constitution, reserved to themselves no judicial power whatever.
The executive authority, by section 1, art. 6, Constitution, was vested and parceled out to a Governor, Lieutenant Governor, and certain other constitutional executive officers therein named. It will thus be seen that the people did not reserve to themselves any executive power. So that all political power inherent in the people has been delegated or vested, except legislative powers reserved to the people in article 5 of the Constitution (initiative and referendum). The reserve legislative power is modified by section 7, art. 5, Constitution, wherein power is delegated to agents or representatives of the people in the Legislature to repeal or amend any law enacted under the initiative power so reserved to the people.
Furthermore, by the provisions of section 3 of the article of the Constitution in which the right stated is reserved to the people, the people delegated to their agents and representatives in the Legislature the authority, and made it their mandatory duty, to "make suitable provision for carrying into effect the provisions of this article." Thus it was recognized by the people, in the enactment of the Constitution, that the reserved power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature was not self-executing. Early in the history of the state, it was so adjudged. Ex parte Wagner,21 Okla. 33, 95 P. 435, Williams, C. J.).
Moreover, by section 8, of art. 5, Constitution, it was made the mandatory duty of the legislative department of government to provide laws to "prevent corruption in making, procuring, and submitting initiative and referendum petitions." That duty was performed by the first Legislature of Oklahoma.
Surely this mentioned delegated legislative power in modification of the reserved legislative power is as effective and binding as any other power by the people delegated (executive and judicial power) and contained in the same instrument. These duties enjoined upon the Legislature have long since been performed by the enactment of statutes for carrying into effect the reserve legislative power. These fruits of legislative labors have likewise been considered by the courts, and ever have been adjudged suitable and reasonable. They are, therefore, as much binding upon us as a guide — as long as they exist — as the Constitution itself.
By the argument of able attorneys and officers of this court, we are urged to hold, irrespective of statutes deemed suitable for safeguarding this initiative right and so enacted under mandatory constitutional direction, that when the Governor of Oklahoma proclaims an election, it is a lawful election. The Governor, in his private capacity, appeared before this court herein, not as a party, nor as an attorney representing a party, but as an attorney and officer of this court, appearing amicus curiae, and urged that adjudication, and stated in argument:
"The first section in our Bill of Rights provides that the source of all power is with the people, and the people may alter or reform the government at their will, limited only by the Constitution of the United States."
Section 1, art. 2, Bill of Rights, uses the phrase heretofore quoted, "all political power is inherent in the people." Without doubt it has the exact meaning attributed to it. The source of all power, pertaining *Page 234 to government, is in the people. All political power sprang from the people, and, as heretofore pointed out, in this state, a great part of it was, by the Constitution, delegated to and vested in agencies to be filled by officers. This, "in order to secure and perpetuate the blessing of liberty; to secure just and rightful government; to promote our mutual welfare and happiness." (Preamble of the Constitution.) And in order to conform to the requirements of the federal Constitution, so as to have a government republican or representative in form. "Our," as in the Preamble used, most emphatically refers to the people and not to any office-holder who is a mere servant of the people. The Governor in said capacity stated before this court as substance of a part of section 1, art. 2, Constitution, "and the people may alter or reform the government at their will, limited only by the Constitution of the United States." It is true that the people "have the right to alter or reform the same whenever the public good may require it," but it is thought that the right to alter or reform the government is limited to the manner, means, and time within the Constitution and supporting laws by the people provided. Otherwise, the act would be antigovernment. It is revolution. It was likewise urged that the people "may * * * abolish the government," If by that statement is meant the Constitution and government, such action would be self-destruction. Anarchy! Neither anarchy nor revolution can long exist within this state, for, as heretofore pointed out, the federal government guarantees to the state of Oklahoma, not only a government, but also a republican form of government, and provision is made for enforcing that guaranty by protecting this state against domestic violence upon application of the Legislature or its substitute.
It is the accepted law of the land that so long as the Legislature confines "suitable provisions" for carrying into effect, and so long as laws are adoquate "to prevent corruption in making, procuring, and submitting 'initiative and referendum petitions'," these mandates may not properly be disobeyed. They are binding upon all, because enacted, by the people, through their agents and representatives, under the authority of the Constitution. As much so as are the laws regulating the manner of election of The Governor. As much so as are the laws regulating the election of Justices of the Supreme Court of Oklahoma, whose duty it is to decide this issue. Such laws are binding. Otherwise, as officers, we would not be, either de facto or de jure, much less act.
The first section of the statute dealing with initiative (section 6625, C. O. S. 1921 [1907-8]) provides for the form of such a petition. The first Legislature deemed It necessary to provide forms for uniformity — that is reasonable. It is suitable. A subsequent Legislature enacted (1910-11, sec. 6631, C. O. S. 1921), providing as a condition precedent to circulation of such a petition that "when any citizen, or citizens, desire to circulate a petition initiating a proposition of any nature, * * * such citizen or citizens shall, when such petition is prepared, and before the same is circulated or signed by electors, file a true and exact copy of same in the office of the Secretary of State, and within 90 days after the date of such filing, the original petition shall be filed in the office of the Secretary of State, and no petition not filed in accordance with this provision shall be considered."
These Provisions are reasonable. It cannot logically be said that the Governor would have a right to call an election upon copies of petitions which had not been so filed, nor upon original petitions not filed, nor upon original petitions filed subsequent to the 90-day period of time prescribed. Within common knowledge many initiative measures have failed because not signed by a sufficient number of citizens or not filed within the prescribed 90-days period.
Copies of the initiative petitions here involved have been filed as by law prescribed. The original petitions, purporting to have been signed by the requisite number of citizens, have likewise been filed within the 90-day period (Oct. 31, 1931 — No. 112).
"When such original petition is filed in said office it shall be the duty of the Secretary of State to forthwith cause to be published * * * a notice setting forth the date of such filing."
This is a suitable provision, for it is notice to the citizenship not represented by and upon such petition and fixes the date of the running of the time within which to protest the sufficiency of the petition.
This duty has been performed by the Secretary of State by causing to be published in the "Blue Valley Farmer," in its issue of November 5, 1931 said notice of said filing.
Said section (6631) further provides:
"Any citizen of the state may, within ten days, by written notice to the Secretary of State and to the party or parties who filed such petition, protest against the same."
That privilege has been exercised (Nov. 9, 1931) by S.P. Freeling, a citizen, who *Page 235 filed written notice of protest to said questions and petitions, with the Secretary of State (No. 112).
Thereupon by the provisions of said section it became the mandatory duty of the Secretary of State "to hear testimony and arguments for and against the sufficiency of such petition" at the time of protest.
Presumably such a hearing was commenced, for it is a presumption of law that public officers do their duty, and "in contemplation of law, this hearing, when begun, is always open until finally concluded." Russell v. Harrison, 33 Okla. 225,124 P. 762.
The question whether the hearing provided for in section 6631, supra, has been finally concluded or whether same is yet open is one of the questions necessarily involved in this action. For said section further provides 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. * * * Such appeal must be taken within ten days after the decision of the Secretary of State has been made. * * * It shall be the duty of the appellants to serve notice upon the Secretary of State, in writing of such appeal, whereupon said Secretary of State shall immediately transmit all papers and documents on file in his office relating to such petition to such court."
Notice of appeal has been given in each of the cases before us in the manner and time provided by law. The papers and documents in the Secretary of State's office relating thereto have been transmitted by the Secretary of State to this court (Nov. 24, 1931) so as to confer jurisdiction of the subject-matter upon this court.
These regulatory provisions of the statute were deemed suitable by the Legislatures enacting them. They were deemed suitable by the executive branch of government by the Governors' approvals. They have been adjudged suitable and reasonable by the judicial branch of government in the opinions of this court, written largely by former members of the Constitutional Convention regarded by lawyers and all citizens as jurists possessed of thorough understanding of the provisions of the Constitution of Oklahoma. They have been considered suitable by the people in their long acquiescence in their existence. They have existed as now for 15 years without effort on the part of the people to amend or repeal them by any initiative measure, which might have during the years been available.
Whereupon, the Chief Justice of the Supreme Court immediately convened this court for a hearing of said protest, whereupon a motion by petitioners was presented to this court to dismiss the protests upon the ground of insufficiency. This motion was considered and denied, and this court set the protest for hearing on December 9, 1931.
Thereafter and on December 4, 1931, the Governor of Oklahoma promulgated an "Executive Order" which, among other things, proclaimed that "* * * the proposed measures (No. 112) shall be submitted to the qualified electors of the state of Oklahoma, for their approval or rejection, at an election to be held on the 18th day of December, 1931." Thereafter similar executive orders promulgated by the Governor purported to submit three other involved initiated measures.
On December 7, 1931, protestant, as party to the causes then pending in this court, filed and presented an application for an order of this court to have Hon. Frank C. Carter. State Auditor of the state of Oklahoma, and the members of the State Election Board made parties defendant in causes Nos. 23082, 23084, 23087, and 23088, involving Initiative Petitions Nos. 112, 114, 117, and 118. In said application recitation was made in substance of proceedings had up to that time, and charging in substance that the executive order proclaiming said election "was without authority of law, void and of no legal effect," and setting forth that by act of the Legislature of Oklahoma (S. L. 1931, pp. 296-7) an appropriation in the sum of $110.000 existed, unexpended, for the purpose of "defraying the expenses of any special election which the Governor might call during the biennium thereof," and alleged that the Election Board was threatening to and would use said sum so appropriated or a portion thereof for the purpose of holding said election, and alleged that said Frank C. Carter, State Auditor, "has threatened to and will unless enjoined * * * issue warrants * * * against said appropriation * * * to pay said illegal claims as above set out," and prayed for a proper order of this court to prevent the alleged illegal expenditures from said appropriation. Subsequently, protestant asked, in open court, leave to amend his protest so as to allege that he was a taxpayer. Such leave was by the court granted.
Upon consideration by this court the application to make the Election Board a party was denied, and the application was sustained so as to make Honorable Frank C. *Page 236 Carter, State Auditor, a party defendant in said causes. (Dec. 10, 1931.)
The questions involved in said ancillary proceedings are the ones now before this court.
"Every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations, which the law places upon all official action." McConaughy v. Sec. of State, 106 Minn. 416, 119 N.W. 417.
See, also, 12 Rawle C. L. 1010.
It is necessary to determine whether the proceeding in this court provided by law is one of review of the action and proceedings before the Secretary of State, or whether the action and proceedings are transferred to this court for hearing evidence thereon precisely as they were filed in the office of the Secretary of State. Are they in fact a proceeding de novo? This question was decided by this court (1912) in Re initiative Petition No. 23, State Question No. 38, 35 Okla. 49, 127 Rawle 862, in opinion by Justice Dunn, at a time when a majority of the Supreme Court was composed of men who had been members of the Constitutional Convention, and concurred in by all the Justices. It was therein said:
"We hold * * * that the jurisdiction taken under the so-called appeal to this court is not appellate in its character, but that on the Secretary of State transmitting to the clerk of this court the petition, protest and papers and documents on file in his office relating thereto, the case was transferred to this court for an original investigation and hearing, and the evidence and proceedings are to be taken de nova."
A trial do nova in an appellate court is a trial had as if no action whatever had been instituted in the court below. Karcher v. Green (Del.) 32 A. 225; Shultz v. Lempert, 55 Tex. 273.
"An appeal which brings up the entire cause for trial de novo in the appellate court operates to annul the Judgment, in the absence of a statute providing otherwise." 2 Rawle C. L. 118. Bank of N. A. v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683 Stalbird v. Beattie, 36 N.H. 455, 72 Am. Deck 317; Fort v. Fort, 118 Tenn. 103, 101 S.W. 433, 11 Ann. Cas. 964.
It is observed that this court has held, as stated in Re Initiative Petition No. 23, supra:
"That the proceeding in this court, while denominated by the statute an appeal, was in fact a proceeding de novo, and that the petition and protest and other documents were filed here for the purpose of hearing evidence thereon precisely as they were filed in the office of the Secretary of State."
The proceeding when filed in this court operated to annul the deciison of the Secretary of State, for there is no statute to the contrary.
Section 800, C. O. S. 1921, to be applicable to stay proceedings, is dependent upon a proceeding in error. As heretofore pointed out, this is not a proceeding in error, but a trial de novo.
Section 779, C. O. S. 1921, is not applicable, for "an appeal to some other court" (rather than the district court) is specifically "provided by law" (sec. 6631).
Section 794, C. O. S. 1921, is not applicable, for it applies only to judgments or final orders rendered in the county, superior, or district courts.
Section 780, C. O. S. 1921, is not applicable, for it applies only to judgments or intermediate orders of county, superior or district courts.
Section 818, C. O. S. 1921, is not applicable, for by it the provisions of the article, are limited to courts of record, and the Secretary of State is not a court of record, for even assuming the Secretary of State to be a court for the purposes specified in the statute, he is not thereby made a "court of record," and by the text of the section the entire article is restricted to "so far as the same may be applicable to judgment or final order of such courts," meaning courts of record.
It is appropriate to again call attention to the statement of Chief Justice Turner, speaking for this court in Russell et al. v. Harrison et al., supra, "In contemplation of law, this hearing, when once is always open until finally concluded." When may the hearing be said to be finally concluded? Are the duties of the Secretary of State finally completed when he transmits the papers and documents on file in his office relating to the petition to this court? So far as any further hearing is concerned, they are. But has the hearing contemplated *Page 237 by law been concluded? Clearly not, for under the decisions of this court, cited above, the cases are "transferred to this court for an original investigation and hearing, and the evidence and proceedings are to be taken de novo." The hearing, the right to which is given to protestant by law, is yet open and had never been finally concluded. As a court, we are not concerned, at this time, with what may be the final decision at the conclusion of the final hearing on the sufficiency of the petitions.
The Governor in his executive order of December 4, 1931, proclaimed, that:
"Whereas, said petition having been accepted and said ballot titles having been decided upon, the said Secretary of State having, in writing, notified me thereof, it becomes my duty as Governor of the State of Oklahoma, to issue my proclamation" for "the date of the referendum vote thereon."
This proclamation is in error, for on November 23, 1931, the said Secretary of State transmitted to this court all documents and papers on file in his office relating to said petitions, and as disclosed thereby the said notice of the Secretary of State certified to the Governor that he (the Secretary of State) "did transmit all papers and documents on file in my office, relating to such petition, to the Supreme Court of Oklahoma, pursuant to notice of appeal served upon me, as by law provided."
The Secretary of State did not certify that the petition had been accepted, but to the contrary, on the face thereof, the certificate shows that the petition had not been finally accepted as is required by law, but that an appeal had been perfected to this court.
This court has already decided how and when the Secretary of State and Governor, respectively, are to act in such cases, for in Re Initiative Petition No. 23, supra, Mr. Justice Dunn, speaking for this court, in the body of the opinion, in explaining how the judgment of this court must operate and be carried out, said:
"In other words, upon holding a petition valid, and upon the remission to the Secretary of State of the papers and documents relating to such petition, it would then, under section 3680, Comp. Laws 1909, be his duty to notify, the Governor, in writing, whose duty then, is to issue a proclamation setting forth the substance of the measure and the date of the vote thereon. Herein, in accord with the terms and intent of the statute, is afforded a complete remedy and procedure for carrying it out."
Directions could not be plainer. Under the foregoing decisions, the Secretary of State was clearly without and continues to be without authority of law to notify the Governor that the petition had been accepted until a decision of this court shall have been rendered and the remission shall have been made to him of the papers and documents relating to such petition. If and when the petition is finally found sufficient, by his court, it will then, and not until then, be the duty of the Secretary of state to notify the Governor.
Likewise, the Governor was without power or authority of law to issue the executive order proclaiming the election on December 18, 1931, for by section 6635, C. O. S. 1921, it is specifically provided that:
"Whenever a petition is accepted * * * the Secretary of State shall, in writing, notify the Governor, who forthwith shall issue a proclamation setting forth the substance of the measure and the date of the referendum vote."
If the hearing on the sufficiency of the petition were pending, undetermined before the Secretary of State, could it be rightfully contended that the Governor possessed authority to proclaim an election on the undetermined petition? Certainly not. The decision of the Secretary of State being annulled by the proceeding in this court and the whole matter being before this court for hearing evidence and argument thereon and for judgment, precisely as they were filed in the office of Secretary of State, the matter is yet pending and it cannot be contended successfully that the Governor possessed authority of law to call said election at such time. No valid election can be held under the executive orders so promulgated and no public funds of the state of Oklahoma can lawfully be expended on account of any Claim or expense in connection therewith.
However, the defendant Frank C. Carter, State Auditor, having pleaded in this court that in the event this court should hold that the executive order proclaiming said election is illegal he would not expend any of said funds for an election held under such executive order, it is unnecessary to issue an injunction at this time. It should be withheld.
The right of the people to peaceably assemble (Bill of Rights) at their respective precincts on December 18, 1931, to consider by discussion (Bill of Rights-Free Speech) or to petition by their views in writing, expressed by ballot or otherwise, for or against *Page 238 the enactment of these proposed measures as laws and constitutional amendment, cannot be questioned, for this is an unalienable right of man (Declaration of Independence). That the result will be merely a petition and not an enactment, is no longer an open question in the state of Oklahoma (Smpson v. Hill, supra; Looney v. Election Board, 145 Okla. 23,291 P. 565). For the people no longer, under this republican form of government, have the inherent right, themselves, to meet as a Legislature or constitutional convention upon spontaneous call of a citizen (Hon. Wm. H. Murray), but only upon the constitutional, and therefore lawful, call of the Legislature or Governor of Oklahoma. (Section 3, art. 5, Constitution.) As stated, no lawful call was, or could have been, made for an election, until such time as a final hearing in all of its legal signification (due process of law) had been had upon the petitions, the basis therefor.
There has not been a substantial compliance with law (section 6652, C. O. S. 1921). These are not technical or clerical errors, but substantial, fundamental, jurisdictional, and vital to the rights of the people of the state of Oklahoma. Ex parte Smith, 49 Okla. 716, 154 P. 521.
We, as Justices, in the discharge of duty, dare not waver, though it draw the whole artillery of libels — all falsehood and malice can invent or a deluded populace can swallow, for:
"The Safety of the State is the Highest Law." Justinian.