I must dissent. Owing to the importance of the issue, I think we should now declare whether or not the election is legally called.
On November 24, 1931, the Secretary of State of the state of Oklahoma transmitted to the Supreme Court of the state of Oklahoma all the papers and documents on file in his office relating to State Question No. 167, Initiative Petition No. 112, and advised the Governor of the state of Oklahoma of the action of the Secretary of State on said petitions and notified the. Governor that notice of appeal had been served on the Secretary of State within the time and in the manner provided by law, and that in obedience to the notice of appeal he had transmitted all the papers and documents on file in his office to the Supreme Court as required by law. The notice from the Secretary of State to the Governor was in the nature of as certificate and is as follows:
"In the Matter of State Question No. 167, Initiative Petition No. 112.
"To His Excellency, "Honorable Wm. H. Murray, "Governor of the State of Oklahoma:
"I, R.A. Sneed, the undersigned Secretary of State of the state of Oklahoma, do hereby certify that on the 31st day of October, 1931, there was filed in the office of the Secretary of State of the state of Oklahoma, Initiative Petition No. 112, State Question No. 167.
"I further certify that after said initiative petition was filed, I caused due and legal notice of the filing thereof to be published as required by law, and that thereafter I found that said petition was in all things sufficient and in compliance with the Constitution and laws of the state of Oklahoma relating to such proceedings.
"I further certify that I found 121,401 legal signers on said petition and that the same, constituted more than the percentage of legal voters, voting at the last general election held in the state of Oklahoma, required by law for the submission of said state question, and found that the said initiative petition was, therefore, sufficient.
"I further certify that on the 24th day of November, 1931, I did transmit all the 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.
"I further certify that on the 23rd day of November, 1931, the Attorney General of the state of Oklahoma caused to be filed in my office, the attached ballot title of said Initiative Petition No. 112, State Question No. 167, as the ballot title approved for such state question.
"I further certify that there is also attached a true and correct copy of the said initiative bill.
"In witness whereof, I have hereunto set my hand and caused the Great Seal to be attached this 25th day of November, 1931.
(Great Seal of the) (State of Oklahoma)
"R.A. Sneed "Secretary of State."
The Secretary of State is under no legal duty, nor has he any authority, to certify the acceptance of an initiative petition until the time for appeal has expired without an appeal having been taken, or, in case an appeal has been taken, until he has received the mandate of the Supreme Court upholding its validity and directing him to act accordingly, in Re Initiative No. 23, State Question No. 38, 35 Okla. 49, 127 P. 862. Under section 2 of article 15 of the Constitution *Page 239 of Oklahoma, 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 voters shall have the right to propose amendments to the Constitution by petition. It requires eight per centum of the legal voters to propose any legislative measure and 15 per centum of the legal voters to propose amendments to the Constitution by petition, and it must be determined by the Secretary of State under the statutes enacted to carry the constitutional provision into force that the petitions contain eight per centum of the legal voters to propose any legislative measure and 15 per ceutum of the voters to propose amendments to the Constitution by petition. Until this question is determined by the Secretary of State, in the first instance, or by the Supreme Court in the event a protest is filed and a decision is made by the Secretary of State and an appeal is taken to the Supreme Court by either party, then the sufficiency of the initiative petition must be determined by the Supreme Court before the same can legally be submitted to all of the voters at an election as provided for by law. Section 8 of article 5 provides that laws shall be provided to prevent corruption in making, procuring, and submitting initiative and referendum petitions. The Supreme Court of this state has declared that the initiative and referendum sections of the Constitution are not self-executing (Ex parte Wagner,21 Okla. 33, 95 P. 435 and Atwater v. Hassett, 27 Okla. 292,111 P. 802), and that the laws enacted by the Legislature to prevent corruption in making, procuring, and submitting initiative and referendum petitions were not repugnant to the Constitution and are constitutional. (Intiative State Question No. 10, 26 Okla. 554, 110 P. 657.) The petitions in this case were filed in accordance with section 6631, C. O. S. 1921, which provides that:
"When a citizen, or citizens, desire to circulate a petition initiating a proposition of any nature, whether to become a statute law or an amendment to the Constitution, or for the purpose of invoking a referendum upon legislative enactments, 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. 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 in at least one newspaper of general circulation within the state a notice setting forth the date of such filing. 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, at which time he will hear testimony and arguments for and against the sufficiency of such petition. A protest filed by any one hereunder may, if abandoned by the party filing same, be revived within five days by any other citizen. 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, and such court shall give such cause precedence over all others, Provided, such appeal must be taken within ten days after the decision of the Secretary of State has been made. If the court be at the time adjourned, the Chief Justice shall immediately convene the same for such hearing. It shall be the duty of the appellants to serve notice upon the Secretary of State, in writing, of such an 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. 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. No objection to the sufficiency shall be considered unless the same shall have been made and filed as herein provided."
The Secretary of State complied with the duty enjoined upon him. When the notice of appeal was filed, he immediately transmitted all papers and documents on file in his office relating to such petition to the Supreme Court. The Chief Justice of the Supreme Court immediately convened the court, and upon the matter being called for hearing a motion was presented by the petitioners to dismiss the appeal upon the ground and for the reason that the protest was insufficient. Upon consideration of the motion a majority of the court was of the opinion that the same was not well taken and the motion was denied, and thereupon this court set the cause for hearing on the 9th day of December, 1931. On December 7, 1931, an application was presented to the court in which the protestant represents and shows to the court, among other things:
"1. That on the 31st day of October, 1931, Honorable Baxter Taylor, a citizen of Oklahoma, filed with the Honorable R.A. Sneed, Secretary of State of the state of Oklahoma, an original petition designated *Page 240 as Initiative Petition No. 112, purported to have been signed by numerous citizens and legal voters of the state of Oklahoma, requesting that the same shall be submitted to the legal voters of the state for approval or rejection at next election held throughout the state.'
"2. That thereafter, on the 9th day of November, 1931, and within ten (10) days of the filing of said petition, said protestant, a citizen of Oklahoma, filed his written notice of protest to said question and petition, with the said Secretary of State, which is filed, in this cause, and which is embodied herein the same as, if entirely rewritten.
"3. That on the 20th day of November, 1931, the said R.A. Sneed, Secretary of State, after an alleged hearing, made a finding, and ruling that 'said petition is in due form of law and sufficient in all things.
"4. That on the 23rd day of November, 1931 the protestant herein perfected an appeal to the Supreme Court of Oklahoma by filing with the Secretary of State a written notice thereof, which said appeal was duly filed in this court.
"5. That on the 28th day of November, 1931, the petitioner, Baxter Taylor, filed a motion to dismiss said appeal, alleging that the same was insufficient in law, and on said day and date, the court took the same under advisement and thereafter the court made its finding and ruling on said motion, overruling said motion and holding the said protest to be sufficient in law, and set December 9, 1931, as a proper time and date for the court to hear evidence on the protest challenging the validity of said petition. That ever since said appeal was, filed in this court, the said cause has been pending therein, and is now pending in said court awaiting the hearing as above ordered and the final determination of the cause.
"6. The protestant further says that after the filing of said appeal, and after the transmission of all the documents and papers relating to said cause by the Secretary of State to this court, the said Secretary of State had no other or further duties to perform in connection therewith until the final determination of said cause by this court, and any act or deed performed by the said Secretary of State during the pendency of said cause undetermined in this court would be and is unlawful and void. That notwithstanding, the said Secretary of State, on the 25th day of November, 1931, transmitted to the Honorable William H. Murray, Governor of Oklahoma, and to Honorable J. Wm. Cordell, Secretary of the State Election Board, each an attested copy of the pending proposition, including therewith the alleged approved ballot title, all of which acts were illegal, void, unauthorized by law, and of no legal effect.
"7. The protestant further says that on the 4th day of December, 1931, the said Honorable William H. Murray, as Governor of the state of Oklahoma, issued over his signature and the seal of the state of Oklahoma, his public proclamation, setting out the acts and things above mentioned herein, and proclaiming that the ballot title of said measure was as stated therein, and further proclaiming the substance of said proposed measure, and further proclaiming that said proposed measure '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,' and authorizing and directing the regular election officials whose duty it is to hold and conduct such elections to hold said election on said State Question No. 167, Initiative Petition No. 112, on said date, to wit, December 18, 1931. That said proclamation was issued at a time when this cause was pending and undetermined in this court, all of which act and proclamation was without authority of law, void and of no legal effect.
"8. The protestant further says that the Legislature of Oklahoma, in its 1931 session, at pages 296 and 297 of said Session Laws, made an appropriation to and in favor of the State Election Board, in the sum of $110,000, to be used by it defraying the expenses of any special election which the Governor might call during the biennium thereof. That said sum of money is now in the treasury of the state of Oklahoma, has not been used for any election or other expense, and is subject to the orders of the State Election Board, when legally made.
"9. That the Election Board of the state of Oklahoma consists of Hon. J. Wm. Cordell, Secretary, of Oklahoma City, Oklahoma; Hon. John W. Hayson, of Oklahoma City, Oklahoma and Hon. Reford Bond of Chickasha, Grady county Oklahoma, and that since the action of the Secretary of State in illegally certifying said measure, together with its ballot title, to the Governor, and since the unlawful issuance of the proclamation of the Governor, calling said election, and the said election board has threatened and is threatening, and will unless enjoined, restrained or otherwise prohibited by this court, use said sum or a portion thereof for the purpose of holding said election, the printing of the ballots in connection therewith, including the printing of this measure thereon, and also in transmitting ballots to the various voting precincts of the state, paying the officers of said election, canvassing the returns thereof, and all other incidental and necessary expenses in connection with holding said election.
"That said acts and things so threatened, if carried into effect, would be illegal, without authority of law, and a violation of the *Page 241 rights of this protestant and all other citizens of the state similarly situated.
"That said election board has already advertised for bids for the printing of approximately 1,250,000 ballots, and will proceed to receive and accept bids on said printing, and incur other expenses in connection with said election unless prohibited by the process of this court.
"10. That Hon. Frank C. Carter is the duly elected, qualified and acting auditor of the state of Oklahoma, and that his duties consist in issuing warrants for the payment of legal claims against the state of Oklahoma, and that the said Hon. Frank C. Carter has threatened to and will unless enjoined, restrained, or otherwise prohibited by this court, issue warrants drawn by said election board against appropriations of the state of Oklahoma now in its treasury, to pay said illegal claims as above set out."
Upon motion of protestant, this court made Honorable Frank C. Carter, as State Auditor of the state of Oklahoma, a party to this action. The hearing on the protest has been continued by the court pending a determination of the ancillary proceedings on the motion or application of the protestant to enjoin Honorable Frank C. Carter, as State Auditor, from paying out any funds of the state of Oklahoma for expenses incurred in holding an election in accordance with the proclamation of the Governor, dated the 4th day of December, 1931, for the reason and upon the grounds that the Governor was without authority to call an election while an appeal was pending on the petition before this court. I recognize and appreciate to the fullest extent the very great importance of this issue in the case, not only to the parties now before the court, but also to the great mass of the citizens of this state, all of whom are interested in the practical working of the courts of justice throughout the land, both federal and state, and in the proper exercise of the jurisdiction of the Supreme Court as controlled by the Constitution and laws of the state of Oklahoma, and the duty, of the three co-ordinate branches of the state government to function within the limits prescribed by the Constitution.
"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 actions." McConaughy v. Sec. of State, 106 Minn. 416, 119 N.W. 417.
This court in Re Initiative Petition No. 23, State Question No. 38, 35 Okla. 49, 127 P. 862, decided October 8, 1912, when the membership of this court was composed of Justices Turner, Hayes, Williams, Kane, and Dunn, three of whom were members of the Constitutional Convention that framed the Constitution of the state of Oklahoma, in the first and second syllabus paragraphs, held that:
"The appeal from a decision of the Secretary of State to the Supreme Court under the provisions of chapter 107, Sess. Laws 1910-11, p. 235, is a transference of the proceedings to this court for a trial de novo, and it has jurisdiction to hear and determine the same.
"Under the provisions of chapter 107, Sess. Laws 1910-11, p. 235, an appeal being taken, this court secures jurisdiction of the Secretary of State by virtue of the notice served as provided for therein, and, on finding an initiative or referendum petition sufficient, it may by its own mandate compel said officer to comply with statutory requirements."
In the body of the opinion Mr. Justice Dunn, speaking for the court, said:
"In the case of In re Petition No. 3, known as the Woman's Suffrage Petition, 26 Okla. 487, 109 P. 732, in the absence of a challenge by either party in this court, it was assumed that an appeal would lie from the action of the Secretary of State, and the court took appellate jurisdiction and rendered judgment upon the errors which were asserted existed in the action of the Secretary. The question, however, was raised in a recent case involving Initiative Petition No. 21, State Question No. 36, commonly known as the Aiken Bill, and without an opinion being written, this court, on objection being made to its jurisdiction, considered the matter and came to the conclusion 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 case of United States v. Ritchie 17 How. 525, 15 L. Ed. 236, is cited and seems in point on this question. Therein the Supreme Court of the United States had before it for consideration an appeal from a decree of the District Court of the Northern District of California, involving proceedings taken before certain commissioners appointed to settle private land claims in California *Page 242 under the Act of March 3, 1851, 9 St. at L. 631. The commissioners, after hearing proofs in the case before them, ordered the title confirmed in the claimants. Thereafter a transcript of the proceedings before the board with their decision was filed with the clerk of the United States District Court of the Northern District of California. On a hearing had before the said court, the decision of the board of commissioners was confirmed, and the cause was taken on appeal to the Supreme Court of the United States. On the appeal there taken, a motion was made to dismiss the same by reason of the alleged lack of jurisdiction of the district court to entertain an appeal from the board of commissioners for the reason that the said board was not organized as a court and lacked authority to exercise judicial power, and hence an appeal would not lie from it to the court. Considering this objection, the Supreme Court of the United States said:
" 'It is also objected that the law prescribing an appeal to the district court from the decision of the board of commissioners is unconstitutional, as this board, as organized, is not a court under the Constitution, and cannot, therefore, be invested with any of the judicial powers conferred upon the general government. Am. Ins. Co. v. Canter, 1 Pet. 511 (7 L. Ed. 242); Benner v. Porter, 9 How. 235 (13 L. Ed. 119); United States v. Ferreira, 13 How. 40 (14 L. Ed. 42). But the answer to the objection is that the suit in the district court is to be regarded as an original proceeding, the removal of the transcript, papers, and evidence into it from the board of commissioners being but a mode of providing for the institution of the suit in that court. The transfer, it is true, is called an appeal. We must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re-examination of the case as heard and decided by the board of commissioners, but hears the case de novo upon the papers and testimony which had been used before the board — they being made evidence in the district court — and also upon such further evidence as either party may see fit to produce."
"This case is cited approvingly and followed by a number of later state and federal cases, and, so far as our investigation goes, the doctrine therein announced seems never to have been departed from. We hold, therefore, in accordance therewith, that the jurisdiction taken under the so-called appeal by 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 novo. This holding on our part is in consonance with the doctrine that, where a statute is susceptible to two reasonable constructions, under one of which it would be constitutional, and the other would render it invalid, it is the duty of the court to give such construction as will sustain, rather than one which will destroy, the statute. Rakowski v. Wagoner, 24 Okla. 282, 103 P. 632."
A trial de novo 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. A trial de novo must be a trial of the entire case anew, hearing the evidence, whether additional or not, and not a trial on appeal and on nothing but the record to correct errors. Shultz v. Lempert, 55 Tex. 273. A trial de novo must be a trial anew in the appellate tribunal according to the usual or prescribed mode of procedure in other cases involving similar questions, whether of law or fact. Lewis v. Baca (N.M.) 21 P. 343, Words Phrases (First Series) vol. 8; p. 7108.
In his argument as attorney on behalf of the petitioners, Honorable William H. Murray, Governor of the state of Oklahoma, urged this court to carefully review the former decisions of this court dealing with the initiative and referendum sections of the Constitution and the statutes enacted for the purpose of giving vitality to and protecting the rights of the people under the constitutional provisions. He said.
"* * * The first thing you want to do is ask yourselves the question: First, if this position is right? Second, does it harmonize with fundamentals? Third, is it logical?"
We have complied with the request of the attorney and have carefully reread and considered all of authorities cited by either party and many more. Some confusion seems to have arisen in the argument relative to the common-law writ of error and the word "appeal" ass used in many statutes.
"The remedy by appeal, which was unknown to the common law was employed for the review of causes in equity, ecclesiastical, and admiralty jurisdictions. Now, both in England and in the United States, the whole matter of appellate review is regulated almost entirely by the statute law." 3 C. J. page 299.
"Owing to the diversity of the statutory provisions regulating appellate procedure, the word 'appeal' is used in many different senses. The term is sometimes used to denote the nature of the appellate jurisdiction, without regard to the particular mode by which a cause is transmitted from one tribunal to another; but, in its original and *Page 243 strictly technical sense, an appeal was a proceeding, introduced into equity practice from the civil law, by which the whole cause was removed from a lower to an appellate court, and there tried de novo upon evidence newly introduced, being subjected to a new and final determination as if it had not been tried before, and without any reference to the conclusion of the inferior court. The statutory appeal differs so greatly in the various jurisdictions, in consequence of the dissimilarity of the statutes, that it is impossible to give a descriptive definition which will hold good in the various states; it is only possible to indicate in a general way the different forms which the remedy has assumed." 3 C. J. pages 314-315.
"In the absence of constitutional limitation, the Legislature may prescribe the mode and specify the manner in which a question shall be brought up from the lower court to the appellate court for review." 3 C. J. page 299.
So, the Legislature of this state deemed it wise to prescribe the mode and specify the manner in which an initiative petition may be brought up from the Secretary of State to the Supreme Court for review. The statute provides that this may be done simply by the appellant's serving notice in writing upon the Secretary of State of such an appeal. No bond is required. This shows it was evidently the intent of the Legislature to permit any citizen or citizens who desired to circulate a petition initiating a proposition of any nature, whether to become a statute law or amendment to the Constitution, and have the same heard in event of protest by the Secretary of State in the first instance and by the Supreme Court on appeal, as free from technicality and burdens of any character as possible. An examination of the subject "Appeal and Error," vol 2, R. C. L., in discussing writs of error and appeals, used very similar language to that found in Corpus Juris, and, among other things, the writer of the text states that:
"At common law the process for reviewing the judgments of the lower courts was the writ of error. The appeal which was borrowed from the civil law, and was unknown to the common law, was the appropriate method of obtaining a review of the decisions of the equity, admiralty, and ecclesiastical courts. The right to an appeal at law is and always has been statutory. It is a remedy which the Legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts appeals may be taken; and, unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken. The writ of error, however, does not owe its origin to any statute, and in the United States has always been a writ of right, both in civil and criminal cases, though in England the writ of error in cases of treason or felony would not lie without the consent of the king. In some jurisdictions writs of error have been expressly abolished, while in others the statutes providing for appeals have been considered to abolish by implication the writ of error in cases in which an appeal may be taken." 2 Rawle C. L., pages 27-28.
And again, at page 118, we find this language:
"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."
Cited in support thereof are: Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Stalbird v. Beattle,36 N.H. 455, 72 Am. Dec. 317; Fort v. Fort, 118 Tenn. 103, 101 S.W. 433, 11 Ann. Cas. 964.
In the Bank of North America Case the court, in an opinion delivered by Storrs, C. J., says:
"The effect of that appeal depends upon the character of the jurisdiction of that court. If, by the laws of New York, a case carried before it by appeal is to be retried by it as upon original process in that court, and it has jurisdiction to settle the controversy by a judgment of its own, and to enforce that judgment by its own process, the appeal, like an appeal under our statutes from a justice of the peace to the superior court, would vacate the judgment of the inferior tribunal; Curtiss. v. Beardsley, 15 Conn. 518; Campbell v. Howard,5 Mass. 376. But if the appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors which may have intervened on the trial of the ease below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and that court has no other powers or duties than to affirm, reverse, or modify that judgment, or remit the case to the inferior tribunal, that it may conform its judgment to that of the appellate tribunal, then such appeal, like an appeal under our laws from the probate court to the superior court, does not vacate or suspend the judgment appealed from; and the removal of the case to the appellate court would no more bar an action upon the judgment than the pendency of a writ of error at common law, when that was the proper mode of correcting errors which may have occurred in the inferior tribunal."
Curtiss v. Beardsley, cited in the Bank of North America Case, supra, holds: *Page 244
"An appeal from a judgment of the justice of the peace to the county court, allowed, but not duly entered in that court, not merely suspends such judgment, but vacates it, so that an action of debt thereon cannot be sustained."
Campbell v. Howard, supra, holds that:
"Where an appeal is duly made from a judgment of the common pleas, such judgment ceases to have any force."
In Fort et al. v. Fort et al., supra, the Tennessee case, that court said:
"Under our statute (Shannon's Code, sec. 4910) the bond required of appellants and the proceedings in the appellate court are the same on an appeal in the nature of a writ of error as upon a simple appeal, yet the distinction in effect upon the judgment of the lower court appealed from is maintained and kept clear in all our decided cases — in the one case merely suspending, and in the other vacating, the judgment pending the appeal."
From the text quoted and authorities cited sustaining the same, I am of the opinion that under section 6631, C. O. S. 1921, supra, this court in Re Initiative Petition No. 23, State Question. No. 238, 38, 35 Okla. 49, supra, announced the correct rule of law and we are duty bound to follow the same. The statute is clear that upon the appellant's serving notice upon the Secretary of State in writing of such appeal the proceedings come to this court to try the cause de novo and to hear testimony and arguments, and to determine and decide the questions that it was the duty under the law for the Secretary of State to decide in the first instance. We are not finding any fault with the Secretary of State in notifying the Governor of his decision, as it clearly and truthfully stated the facts and notified the Governor of the state of Oklahoma that an appeal had been taken from his findings and decision to the Supreme Court. The Governor in his proclamation of December 4, 1931, recites that:
"Whereas on the 25th day of November, 1931, the said Secretary of State transmitted to me, the under-signed Governor of the state of Oklahoma, and to the Secretary of the State Election Board, each, an attested copy of the pending proposition, including such approved ballot titles; and 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 setting forth the substance of said measure and the date of the referendum vote thereon. * * *"
This is where the Governor fell in error and made a mistake. The Secretary of State did not transmit to the Governor an attested copy of the pending proposition and did not advise the Governor that the same had been accepted. The Secretary of State notified the Governor by the certificate hereinbefore set out of the action of the Secretary of State upon the pending proposition, and further notified the Governor of the state of Oklahoma on the 24th day of November, 1931, the Secretary of State transmitted all the papers and documents on file in his office relating to such petition to the Supreme Court of Oklahoma pursuant to notice of appeal served upon the Secretary of State as by law provided. In his proclamation the Governor seems to base it upon the good intentions of the petitioners in requesting that said proposition be submitted to the voters. He also urges in his argument as counsel before the court the great need for the adoption of the pending measure. We think this argument is very forcefully answered by the Supreme Court of Wisconsin in the case of Bonnett v. Vallier, 116 N.W. 885, 17 L. R. A. (N. S.) 486, wherein the court said:
"The appeal is often made to courts directly or indirectly to look favorably upon a law because of the worthy purpose in the minds of the promoters in securing its place upon the statute books. That cannot go to the extent of causing hesitancy or failure to condemn a legislative act which clearly exceeds the lawmaking power. Courts have their duty to perform in a case like this, and however unpleasant it may be, they cannot turn aside on any account whatever, even in the face of manifestly the very best of intentions upon the part of the lawmakers and promoters. The greatest constitutional lawyer of our country during its early history aptly said: 'Good intentions will always be pleaded for every assumption of power, but the cannot justify it. The Constitution was made to guard the people against the dangers of good intentions. When had intentions are boldly avowed the people will promptly take care of themselves. They will always be asked why they should resist or question the exercise of power which is so fair in its object, so plausible and patriotic in appearance, and which has the public good alone confessedly in view. Human beings, we may be assured, will generally exercise power when they get it, and they will exercise it most undoubtedly under a popular government under the pretense of public safety or high Public interest. * * * They think there need be little restraint upon themselves.'
"Again, they sometimes, it seems, lose sight of the fact that there are such restraints, *Page 245 and so it becomes necessary for the courts, in the performance of their constitutional duty, to call that to mind. The fathers foresaw that in writing into the Constitution those significant words: 'The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.' Const. art. 1, sec. 22."
It was also urged that it is necessary that the measure proposed in the initiative petition should be submitted without further delay owing to the importance of the proposed act. This court did not delay the filing of the petitions in the office of the Secretary of State. It has been many months since the legislative branch of the state government adjourned, and if the act is of such vital importance to the people of the state of Oklahoma, we see no good reason why the filing of the same was delayed until so late in the year. These were matters over which the petitioners alone had control, and we know of no reason why the petitions could not have been filed sooner in the event they desired the petitions finally determined in order that they might be voted upon before the end of the year 1931. They petitioned the Governor to submit the initiative bill at the next election, and the Governor, exercising the power vested in him by the Constitution to call a special election, issued the proclamation of December 4, 1931. The only question for us to determine at this time is, Did the Governor have legal authority to issue a proclamation before the sufficiency of the petitions was finally determined in substantial compliance with the laws of this state? The law seems to be well settled that the appeal brings up all the proceedings and the case is tried de novo and is a trial of the entire case anew; the words of the statute are:
"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 petitions to such court."
The statute 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. * * *"
If the hearing on the petition was pending in the office of the Secretary of State, would it be seriously contended that the Governor had power and authority to issue a proclamation calling an election upon the question submitted by the petition? We think not. If not, how can it be seriously contended the Governor has such power and authority where an appeal has been taken as provided by law and the Secretary of State has transmitted all papers and documents on file in his office relating to such petition to the Supreme Court and the cause is now here pending for a trial de novo, that is, a trial of the entire case anew?
An appeal in such a proceeding bringing up the entire proceedings for a trial de novo in the appellate court and operates to annul the findings, conclusions, and decision of the Secretary of State relative to the sufficiency or insufficiency of initiative petitions, in the absence of a statute providing otherwise.
When an initiative petition is filed with the Secretary of State by a citizen or citizens and notice has been given and a protest has been filed, and a hearing is held, all in accordance with section 6631, C. O. S. 1921, it is "accepted" when it has passed successfully the scrutiny of examination as to the proposition offered for submission and it is determined that it is the same in the petition circulated as in the copy filed in the office of the Secretary of State before the original was circulated, and the evidence as to the sufficiency of valid petitioners has been heard by the Secretary of State and he has decided such petition is sufficient as required by the statutes, and has made and announced his findings and decision to the parties, representing the petitioners and the protestant, and the time to appeal has expired and no notice of appeal has been served as required by law, or if notice of appeal is served as required by law, then when the Supreme Court has heard said proceedings de novo and has issued its mandate sustaining the sufficiency of said initiative petition.
An initiative question cannot be legally submitted to the qualified electors of the state or legally voted upon until the sufficiency of the initiative petitions has been finally determined and the petitions found to substantially comply with the law.
For the reasons hereinbefore stated, I am forced to the conclusion that, under the statute, where an appeal has been taken from the findings and decision of the Secretary of State to the Supreme Court and all papers and documents on file in his office relating to such petition have been transmitted to the Supreme Court for a trial de novo, then the Governor is without power or authority to issue a legal proclamation calling for an election upon the bill or constitutional *Page 246 amendment submitted by such petition until the Supreme Court has finally acted and its mandate has been issued to the Secretary of State holding that there has been a substantial compliance with the law and that the petitions are valid.
There is but one other issue presented for determination at this time.
We have, by order, permitted the protestant to amend his ancillary pleadings so as to allege that "he is a taxpayer in Oklahoma," and, by order, made the State Auditor a party to this proceeding so that the court might issue an injunction against him illegally paying out any public funds in his custody and under his control in the event the court should hold that the calling of the election is illegal.
It is well settled that the district courts and the Supreme Court have jurisdiction to enjoin state officers, other than the Governor, from applying public funds contrary to law. It is equally well settled that courts do not favor a multiplicity of suits.
I think it is our duty to protect the public fund's of the state which have been appropriated by the legislative branch of the government for a specified purpose and prevent the same from being illegally expended. The State Auditor has filed an answer in these proceedings and has made no objection to being made a party and has requested the court to announce the law advising him of his rights and assuring the court that he will obey the law as announced and declared by the court, without an injunction being granted. The majority opinion does not pass upon a single issue in the proceedings, simply denies an injunction, which the State Auditor, a high state official of a co-ordinate branch of the state government, advises us he will obey without a writ of injunction being issued. The majority opinion advises him, in substance, Beware! If you pay out any money, you do so at your peril. I do not know what course the State Auditor will pursue, but I anticipate he or, some one in his behalf will return again and knock at the door of this court for an opinion announcing the law in the case. He may come as a public officer or some taxpayer may come to protect his property rights, and when they or either of them come all clad in an injunction suit, I assume the court will recognize them and declare the law. In my opinion the court has not done so in the majority opinion.
It is the duty of the court to declare the law and the State Auditor to obey the law. He has signified his willingness to do so and prayed the court in his answer to announce the law. The Governor shall cause the laws of the state to be faithfully executed. The law as declared by this court is binding upon the Governor and every other official and the people of the state. I am of the opinion that we should declare that the special election called for December 18, 1931, was called while a hearing was pending de novo in this court on the sufficiency of the petition initiating a proposition to become a statute law and was therefore illegal and that it is the duty of the Governor to recall his proclamation and not issue another until the sufficiency of the petition is finally determined by this court. In my opinion, when the law is so declared by this court, it would be his duty to obey and execute the law. The law presumes that as a public officer he will perform his duties.
For the foregoing reasons, I most respectfully dissent from the majority opinion.
In re Initiative Petition No. 112, State Question No. 167. No. 23082.