From the order of the Secretary of State made on the 20th day of November, 1931, as to the sufficiency of an initiative petition filed with him on the 31st, day of October, 1931, an appeal was taken by the protestant to this court by notice, in writing, on the 23rd day of November, 1931. The papers were transmitted to this court by the Secretary of State on the 24th day of November, 1931. While the cause was pending in this court for a trial de novo and after this court had set the same for trial on the 9th day of December, 1931, the Governor of the state, on the date of December 4, 1931, issued an executive order and election proclamation calling an election on the proposed measure for the 18th day of December, 1931. Thereafter an application was made to this court by the protestant for a writ of prohibition, injunction, or other order to preserve the jurisdiction of this court of the subject-matter before it. This court ordered that the trial as to the sufficiency of the petition be continued until a determination of the application for a writ of prohibition, injunction, or other order. The issue before this court for determination at this time is whether or not such an order should be granted.
The Constitution of the state provides for a plan of government by which the powers of the state are to be exercised by three departments, *Page 247 the legislative, the executive, and the judicial; by which the three departments shall be separate and distinct, and by which, except as otherwise provided therein, neither department shall exercise the power properly belonging to either of the other departments. It is therein provided that the legislative power should be divided between a Legislature, to be composed of representatives of the people, acting through a Senate and a House of Representatives, and the people themselves, acting through the provisions therein made for initiative and referendum and suitable provisions made by the Legislature for carrying into effect the provisions of the initiative and referendum. The power of the Legislature is therein prescribed and limited and, as the people thought it necessary to impose restrictions upon the power of the Legislature, so did they think it advisable to impose restrictions upon their right to exercise the initiative and referendum, and such restrictions are imposed.
Much has been said as to the rights of the people to initiate legislation, and much that has been said has been without regard to the decisions of this court. In Ex parte Wagner,21 Okla. 33, 95 P. 435, Mr. Chief Justice Williams, speaking for the court, held that the initiative provisions of the Constitution were not self-executing. We quote from the opinion as follows:
"The initiative and referendum provisions, relating, not only to the affairs of the state, but also to counties and cities, are taken substantially from the Constitution of Oregon. The Supreme Court of that state, in the case of Kadderley v. Portland, 44 Or. 119, 74 P. 710, 75 P. 222, has held that the same are not in conflict with section 4, art. 4, Const. U.S., guaranteeing to every state a republican form of government.
"The next question is: Were said provisions self-executing on the 18th day of December, A.D. 1907? The Supreme Court of Oregon, in the case of Stevens v. Benson (Or.) 91 P. 577, held that the initiative and referendum provisions as contained in the Oregon. Constitution were self-executing. The only difference between the provisions in that Constitution and those of this state is that in the former it is provided that, in submitting such petitions to the people, the Secretary of State and all other officers shall be guided by the general laws and the act submitting the initiative and referendum amendment to the people for adoption or rejection until legislation shall be especially provided therefor, clearly indicating that it was the intention in adopting the Oregon amendment that the same should then and there become self-executing. This clause does not appear in the Oklahoma Constitution. Substantially such provision was contained therein prior to the time that the constitutional convention reassembled after the proposed Constitution had been provided to be submitted to the people for adoption or rejection. When the convention reconvened, in order to obviate any possible objection that might be made by the President of the United States to the same, wherein it was required by section 4, art. 4, Const. U.S., and the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), to be republican in form, and not in conflict with the provisions of said act, that part was eliminated, leaving it to the Legislature to carry same into effect. There was undoubted wisdom and precaution in that act. If the enemies of the principle of the initiative and referendum in popular government had been able to convince the department of justice of the federal government that such provisions of the initiative and referendum, when adopted by a state, rendered such state government unrepublican in form, still it remained that until the Legislature acted the principle was not self-executing in the Oklahoma Constitution. And, until the Legislature enacted measures carrying it into effect, the federal government had less right or reason to complain and that was one of the reasons for such action assigned at the time; for, if that contention against the provisions of the Constitution or to the initiative and referendum had been sustained, yet, as the same were not self-executing in that Constitution, reason and consideration of the rights of the people of the proposed state should certainly have impelled the promulgation of the proclamation of the admission of the state into the Union. For, when the act of the Legislature had been passed carrying same into effect, then the question could in due and proper time have been raised that such act was in conflict with section 4, art. 4, Const. U.S., and been declared void, and by such course preserved the supremacy of the Constitution of the United States, and at the same time vouchsafe the right of local self-government to over one million of citizens."
— and:
"Section 3, art. 5, Const. (Bunn's Ed. sec. 55) relating to the initiative and referendum provision, provides that 'the Legislature shall make suitable provision for carrying into effect the provisions of this article.' This especially indicates that it was not the intention of the constitutional convention that said articles should become effective until made so by act of the Legislature. In determining whether or not a provision of the Constitution is self-executing, we should consider the language in the light of the surrounding circumstances and conditions under which it was adopted, with a view of ascertaining the intention of the parties framing it. We accordingly conclude that on the 18th day Of December, A.D. *Page 248 1907, the provisions in our Constitution relating to the initiative and referendum were not self-executing, and that they did not become effective until the 16th day of April, A. D. 1908, when the act of the Legislature heretofore referred to was approved by the Governor of the state."
It is apparent from that statement of facts and law that, although the people had the authority to provide in their Constitution for the right of initiative and referendum and to make the provisions therefor self-executing, they declined to do so, and imposed upon, the Legislature the duty of making suitable provisions for carrying into effect the provisions with reference thereto. Had the Legislature not made such provisions, the constitutional provisions would have been inoperative and ineffective. The right of the people, therefore, to the initiative and referendum is dependent upon legislative provisions. Another restriction imposed is one limiting the right of the people to initiate and adopt laws and amendments to the Constitution, requiring as a condition precedent thereto that such legislative measures be proposed by not less than eight per centum of the legal voters and that such amendments to the Constitution must be proposed by not less than 15 per centum of the legal voters. The exact language of the provision is as follows:
"The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and 15 per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include, the full text of the measure so proposed. * * *" Section 2, article 5, of the Constitution.
Since the power of the people to initiate legislation and constitutional amendments was expressly limited by them by that provision, it cannot be said that they may initiate or adopt laws in violation of the limitations imposed upon themselves by the adoption of the limitation. The right of the people to initiate and adopt laws is limited to not less than eight per centum of the legal voters. Without a petition addressed to the Governor of the state, no election may be called, and without the signatures of eight per centum of the legal voters to such a petition, no election may be called. It is evident that the constitutional provisions require a determination by some authority of whether or not such a petition is signed by eight per centum of the legal voters. The Constitution provides:
"The Legislature shall make suitable provisions for carrying into effect the provisions of this article." Section 3, article 5, of, the Constitution.
Under the power so granted, the Legislature provided for a determination of that question. It provided that when a petition is filed in the office of the Secretary of State it shall be the duty of the Secretary of State to forthwith cause to be published a notice of the filing thereof, and any citizen of the state is authorized to protest against the same, within ten days, by notice to the Secretary of State and to the party or parties who filed the petition. The Secretary of State is authorized to hear testimony and argument for and against the sufficiency of the petition and to decide whether the petition be in form as required by the statute. Section 6631, C. O. S. 1921. However, the Legislature thought it advisable that the decision of the Secretary of State should be subject to an appeal to this court, and it provided that "his decision shall be subject to appeal to the Supreme Court of the state." Section 6631, supra. The Legislature further provided that a notice, in writing, of such an appeal should be served upon the Secretary of State, "Whereupon, said Secretary of State shall immediately transmit all papers and documents on file in his office relating to such petition to such court." The Legislature had the constitutional authority to provide the method provided for the determination of the sufficiency of the petition, if the provision made therefor was a suitable one for carrying into effect the provisions of article 5 of the Constitution. The Legislature made the provision, and, having done so, this court must presume that the Legislature thought the provision was a suitable one. The legislative enactment had the approval of the Governor of the state acting in a legislative capacity and, since the Governor approved the same, this court must presume that the Governor considered the provision a suitable one. The provision had the approval of the judicial branch of the government in a number of cases, in each of which the provision was sustained as a suitable one. After the long time during which the legislative act has been in force, this court is now asked to may that the legislative, the executive, and the judicial branches of the government have each been in error as to the suitableness of the provision and that a determination of the sufficiency of the petition by the Secretary of State, although an appeal from his order has been taken to this court is sufficient authority to authorize the Governor of the state to call an election. I *Page 249 decline to so hold. While the question of the sufficiency of the petition is pending before this court on appeal from an order of the Secretary of State, the sufficiency of the petition has not been determined. Until the sufficiency of the petition has been determined in the manner provided and until it has been found in the manner provided that the petition has been signed by eight per centum of the legal voters, the Governor has no constitutional or other power to call an election or to submit the proposed measure to the people for their action. His authority to call such an election is dependent upon the filing of a petition sufficient in form and signed by not less than eight per centum of the legal voters. He has no authority to determine either the sufficiency of the petition or that the petition has been signed by eight per centum of the legal voters. The determination of those questions by the Secretary of State is ineffective where an appeal is taken from his order to this court. Until the determination of those questions by this court, where an appeal is taken to this court from the order of the Secretary of State, there is no authority in the Governor to call an election or to submit the proposed petition to the voters, and an executive order or proclamation calling such an election is void for want of authority.
While the question of the sufficiency of the petition was pending before this court, the Governor of the state, with the knowledge implied from the records of this court and with the knowledge imparted to him by the certificate of the Secretary of State of the state of Oklahoma, on the 4th day of December, 1931, issued an executive order in words and figures as follows, to wit:
"State of Oklahoma, Department of State.
"R.A. Sneed, Secretary of State.
"(Seal)
"To All to Whom These Presents Shall Come, Greeting:
"I, R.A. Sneed, Secretary of State, of the state of Oklahoma do hereby certify that the following and hereto attached is a true copy of Executive Order Election Proclamation Initiative Petition 112, State Question No. 167 Filed December 4, 1931, the original of which is now on file and a matter of record in this office.
"In testimony whereof, I hereto set my hand and cause to be affixed the Great Seal of State. Done at the City of Oklahoma City, this ninth day of December, A.D. 1931.
"R.A. Sneed "Secretary of State.
"____________________
"(Seal)
"Executive Order. "Election Proclamation. "Whereas, on the 31st day of October, 1931, Baxter Taylor, a citizen of the state of Oklahoma, filed with the Hon. R.A. Sneed, Secretary of State, an original petition, designated as 'State Question No. 167', 'Initiative Petition No. 112', signed by more than 115,000 citizens and legal voters of the state of Oklahoma, requesting that the same 'shall be submitted to the legal voters of the state for their approval or rejection, at the next election held throughout the state'; and
"Whereas, on the 2nd day of November, 1931, the said Secretary of State caused said question and petition to be published, as required by law, in a newspaper of general circulation, giving notice to any and all who might wish to protest the same; and said question and petition was duly published in the 'Blue Valley Farmer,' in its issue of November 5, 1931; and
"Whereas, on the 9th day of November, 1931, S.P. Freeling, a citizen of Oklahoma, filed his written notice of protest to said question and petition with the said Secretary of State; and
"Whereas, on the 20th day of November, 1931, the said R.A. Sneed, Secretary of State after hearing testimony and argument in support of said protest, found that 'said petition is in due form of law and amply sufficient in all things'; and
"Whereas, on the 20th day of November, 1931, the said petitioner, Baxter Taylor, prepared and filed with the Secretary of State of Oklahoma, and with the Attorney General of Oklahoma, one copy each of a proposed ballot title, not exceeding 100 words, and containing a gist of the proposition proposed to be submitted; and
"Whereas, on the 23rd day of November, 1931, the said Attorney General noticed the said Secretary of State that, in his judgment, the said ballot title so submitted was not in legal form and in harmony with law and he thereupon, prepared and filed a ballot title which, in his judgment, did conform to law; and
"Whereas, on the 25th day of November, 1931, the said Secretary of State transmitted to me, the undersigned, 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 title; and *Page 250
"Whereas, said petition having been accepted and said ballot title 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:
"Now therefore, I, William H. Murray, Governor of the state of Oklahoma, by virtue of the power and authority vested in me by the Constitution of the state of Oklahoma and laws thereof, as such Governor, do hereby proclaim that the ballot title of said proposed measure is as follows:
" 'An act repealing existing State Income Tax Laws and money and credits tax law; providing for the levying of an annual net income tax on the income of persons, firms, associations, and corporations derived from property owned and business done in Oklahoma, and fixing the rate thereof; exempting certain persons, institutions, companies, associations, and corporations from the provisions of act; classifying certain taxpayers; providing for collection of tax with penalties for nonpayment or for failure to make returns; providing apportionment of revenue between expense of collection, cost of state government, and support of common schools.'
"And I do also hereby proclaim that the substance of said proposed measure is as follows: (Initiative petition deleted as unnecessary to a determination of the issues herein.)
"And I do also hereby proclaim 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 the regular election officials whose duty it is to hold and conduct such elections, as provided by law, are hereby authorized and directed to hold and conduct such election on said 'State Question No. 167,' 'Initiative Petition No. 112, on said date.
"In view of the fact that the protestant, S.P. Freeling, has appealed to the Supreme Court of Oklahoma from the decision of the Secretary of State, holding that such petition was, in all things, sufficient and in compliance with the Constitution and laws of the state of Oklahoma, relating to such proceedings, I deem it advisable to set forth my reasons as a part of this proclamation, for issuing the same at this time.
"Section 6631, C. O. S. 1921, provides:
" '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. * * * If the court be at that time adjourned, the Chief Justice Shall immediately convene the same for such hearing. * * *'
"The appeal of the said protestant, S.P. Freeling, was filed in the Supreme Court on November 23, 1931; and, after, a preliminary hearing at which the petitioner, Baxter Taylor, and his attorneys urged that said appeal be heard and disposed of without delay, the said petitioner, on November 28, 1931, filed a motion to dismiss said protest, alleging that said protest was legally insufficient. After hearing argument upon said motion, on behalf of said petitioner and protestant, the said court thereafter overruled said motion and fixed December 9, 1931, eleven days thereafter, as the date for a hearing upon said protest.
"The said 'State Question No. 167', 'Initiative Petition No. 112', shows upon its face, that it is a proposed 'act providing for relief from ad valorem taxation by levying an annual tax upon the net income of persons, firms, associations, and corporations, derived from property owned and business done in Oklahoma'; and that one-fourth of the revenue derived thereunder shall be used for the expenses of state government and three-fourths of such revenue shall be used for support of common schools, to be distributed upon a scholastic enumeration per capita basis; and that the quota of each school district, under said proposed act, may be received only after it has reduced its ad valorem levy for school taxes in an amount equal to its quota.
"Said proposed act also levies an income tax upon the net income of individuals and corporations 'for the taxable year 1931 and for each taxable year thereafter.'
"The state and its people are sorely in need of the revenues imposed and collectible under this act, in order that there may be a reduction in the rate of ad valorem taxation; and if said proposed measure is not voted upon in the year 1931, serious, legal questions will arise, resulting in vexatious and hazardous litigation, affecting not only the right of the state to tax the 1931 income of taxpayers, but the very life of this important measure.
"Because of the momentous and far-reaching consequences that may result from a failure to hold the election on this proposed measure in the year 1931, I feel that I would be derelict in my duty, as Governor of the state of Oklahoma, if I failed to issue my Proclamation in time to permit the holding of such election prior to the expiration of the present year.
"While, by this action, no disregard to the Supreme Court, a co-ordinate branch of the state government, is intended, yet the facts which impel me, as the Chief Executive of the state, to act, are undisputed and *Page 251 clearly appears from the records. The original petition was filed with the Secretary of State on the 31st day of October, 1931. The appeal of the protestant was filed in the Supreme Court on the 23rd day of November, 1931. At all times, during the 24 intervening days, the protestant and his attorneys and experts had full and free access to the petition. Then, from the filing of the appeal to the hearing, on the 28th day of November, 1931, five more days elapsed. Then, the protestant has been given eleven additional days' delay and the hearing has been fixed for December 9, 1931. Every move of the protestant and his attorneys has meant nothing but delay, no more or no less.
"In the meantime, the few remaining days of the precious month of December and the precious year 1931, are passing; and I cannot and will not permit the life of this important proposed act to be jeopardized or destroyed, and the resultant loss to the people of many millions of dollars, in sorely needed revenues, if it is within my legal and constitutional power, as Chief Executive of the state, to prevent it. I hold that the Constitution and laws of the state clearly vest this power and authority in me and that the way is open for me to proceed; and, as Chief Executive of the state, I will then have discharged, to the fullest extent, the duties and responsibilities imposed upon me, by Constitution and law.
"By the terms of section 1, art. 5, of the Constitution, the people of the State have reserved unto themselves the right to legislate, independent of the Legislature:
" 'Section 1. The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.'
"The said state question and initiative petition complies fully and completely with the Constitution, as expressed in section 2, of the same article, as follows:
" 'Section 2. The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and 15 per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so proposed. The second power is the referendum and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), either by petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted. The ratio and per centum of legal voters hereinbefore stated shall be based upon the total number of votes cut at the last general election for the state office receiving the highest number of votes at such election.'
"The aforesaid reservations, under said sections 1 and 2, art. 5, of the Constitution, as above set out, create a Legislature, supreme and final, made up of the qualified voters of the state, for the enactment of laws; and in the exercise of the powers therein reserved to themselves, the supreme legislative body of the state, their rights cannot be denied by any power exercised by any branch of the state government, legislative, executive or judicial.
"Under section 3, art. 5, of the Constitution only the Governor of the state, or the Legislature thereof, can call a special election upon any state question referred to the people; and, when so referred, the people become, in truth and in fact, the supreme Legislature for the state.
"When any such election is called, either by the Legislature or by the Governor, the same cannot be interfered with; and these rights are guaranteed to the people under section 7, art. 3, of the Constitution, as follows:
" 'Section 7. The election shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace be privileged from arrest during their attendance on elections and while going to and from the same.'
"These rights are also guaranteed and made secure by sections 1, 4 and 33, art. 2, of the 'Bill of Rights', as follows:
" 'Section 1. All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it; Provided, such change be not repugnant to the Constitution of the United States.'
" 'Section 4. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right.'
" 'Section 33. The enumeration in this Constitution at certain rights shall not be construed to deny, impair, or disparage others retained by the people.'
"In addition thereto, the political rights of the people, in the holding of elections and in their immunity from interference with such elections, are made secure by many decisions of the Supreme Court of *Page 252 our own state and the decisions of the Supreme Courts of other states throughout the land are to the same effect; and it is made plain, in such decisions, that even courts of equity cannot by injunction, interfere with the 'political powers' and rights of the people in the holding of elections.
"It is thus shown that elections may not be interfered with by either the civil or military power of any branch of the government unless it be to protect the people in their right of suffrage; and to protect them, as the supreme legislative body of the state, in the exercise of their rights, under the Constitution, to legislate for themselves.
"If, by any process of reasoning, an election officer could be enjoined or interfered with, by any court, while exercising the functions of an officer of the supreme legislative body, the sovereign people of the state, then, by the same process of reasoning, a court would have the power to interfere with the Legislature by enjoining the reading clerk from calling the roll or the journal clerk from making an entry thereof or by enjoining a vote upon any bill under consideration; and the power to enjoin a legislative body is universally denied to any court.
"No court, having respect for the will of a sovereign people or any regard for its oath or for the Constitution and laws of the state, could, in good conscience, so violate the fundamental principles which underlie the whole structure of our state government.
"These are some of the reasons why I, as Governor of the state of Oklahoma, deem it to be my solemn duty to proclaim an election, on the 18th day of December, 1931, for the acceptance or rejection, by the people of Oklahoma, of 'State Question No. 167,' 'Initiative Petition No. 112'; and, fully understanding my duties and responsibilities, as such Chief Executive, and being conscious of no motive except to discharge those duties and to assume those responsibilities, with such wisdom and courage as Providence has endowed me, I take this action.
"Executed on this, the 4th day of December, A.D. 1931.
"By the Governor of the State of Oklahoma:
"Wm. H. Murray."
"(Seal) "Attest:
"R.A. Sneed, "Secretary of State of Oklahoma. "1472 "Executive Order "Election Proclamation "Initiative Petition 112 "State Question No. 167 "Secretary's Memorandum "Oklahoma City, State of Oklahoma "Secretary's Office
"This instrument was filed for record this 4th day of December, A.D. 1931 at 8:32 o'clock a. m.
"Recorded in Executive Record
"No. 40 at page 311-319
"R.A. Sneed "Secretary of State "By Josephine Shanafelt."
At the time of the issuance of the executive order on December 4, 1931, the question of the sufficiency of the petition was pending before this court for a trial de novo on appeal from the order of the Secretary of State, and nothing had been said herein as to the enjoining of an election. It had not been necessary to say anything herein as to the enjoining of an election, for no election had been called; there was no authority under the Constitution and laws of this state for the calling of an election while the question of the sufficiency of the petition was undetermined, and no one could assume that there would be a violation of the law. Notwithstanding that fact, it was asserted in the executive order that when an election is called by the Governor the same cannot be interfered with; and "even courts of equity cannot, by injunction, interfere with the 'political powers' and rights of the people in the holding of elections"; that "elections may not be interfered with by either the civil or military power of any branch of the government," and that "No court, having respect for the will of a sovereign people or any regard for its oath or for the Constitution and laws of the state, could, in good conscience, so violate the fundamental principles which underlie the whole structure of our state government." Those were the conclusions of law of the executive branch. They were doubtless stated therein as an excuse for the calling of the election which was therein called. In justification of the order it was therein said: "Every move of the protestant and his attorneys has meant nothing but delay, no more or no less." That statement is not supported by the record. The petition was filed in the office of the Secretary of State on the 31st day of October, 1931. By the provisions of section 6631, supra, it became "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." If the word "forthwith," as used therein, *Page 253 is to be given effect, it should be given the usual and ordinary construction. Yet, notwithstanding that fact and notwithstanding the fact that there are many papers in this state published daily, that notice was not published until the 5th day of November, 1931, a delay for which neither the protestant nor his attorney is responsible. Under the provisions of section 6631, supra, the protestant was given ten days in which to protest against the petition. The protestant in this case did not take advantage of the ten days given him under the provisions of the statute, but filed his protest with the Secretary of State on the 9th day of November, 1931, four days after the publication of the notice. It cannot be said that there was any intention on the part of the protestant to delay, when he filed his protest within less than one-half of the time given him by law in which to file the same. The Secretary of State fixed November 18, 1931, as the time for the hearing of the protest and the testimony and argument for and against the sufficiency of the petition. The provision of section 6631, supra, with reference to the time for the hearing is as follows:
"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."
Doubtless, the Secretary of State considered the time given a reasonable time for preparation for the hearing. The finding of the Secretary of State was made on the 20th day of November, 1931. The protestant, by the provisions of section 6631, supra, had ten days after the decision of the Secretary of State in which to appeal to this court. Upon the service of such a notice, the Secretary of State is required to transmit all the papers and documents on file in his office relating to the petition to this court. That notice was served upon the Secretary of State on the 23rd day of November, 1931, and upon the 24th day of November, 1931, the Secretary of State transmitted the papers and documents on file in his office relating to the petition to this court. It is apparent therefrom that the protestant and his attorneys used only three of the ten days allowed in which to serve upon the Secretary of State the notice of appeal to this court. It is true that the protestant and his attorneys asked this court to grant them time in which to prepare for trial and in which to examine the more than 6,000 sheets of signatures attached to the petition and that this court set December 9, 1931, as the day for the trial of the cause. That was 15 days from the time the papers and documents were transmitted to this court by the Secretary of State. In the argument in this case it was stated, and not denied, that this was the shortest time granted by this court to prepare for trial in any of the many appeals involving initiative matters that have been presented to this court. This court, in the exercise of its discretion, made the order fixing the date for the trial. Its order is not subject to review by the Governor of this state and may not be disregarded or made ineffective though the Governor thinks that it is an improper one. The executive order recites:
"The original petition was filed with the Secretary of State on the 31st day of October, 1931. The appeal of the protestant was held in the Supreme Court on the 23rd day of November, 1931. At all times, during the 24 intervening days, the protestant and his attorneys and experts had full and free access to the petition."
The papers and documents transmitted to this court by the Secretary of State consist, in part, of a letter from the protestant to the Secretary of State and a letter from the Secretary of State to the protestant, which are as follows:
"November 14, 1931.
"To Hon. R.A. Sneed, "Secretary of State, "State Capitol, "Oklahoma City, Okla.
"Dear Sir:
"For the purpose of assembling the names of witnesses for information for Freeling Box, attorneys, to assist them in preparing the list of, witnesses to be subpoenaed for the hearing on the sufficiency of Initiative Petition No. 112, which hearing has been set for November 18th, this request is made:
"Will you kindly instruct your custodian of records to furnish our force, headed by D.C. Patterson as we call for them, all the petitions on the seven questions for Oklahoma, Kay, Choctaw and Creek counties, and such other various and separate petitions as may be annexed, to get the addresses of signers, circulators and notaries that may be called as witnesses in this hearing, and all other data and petitions which Mr. Patterson may request, and which are now on file as public records in your office.
"S.P. Freeling, "Protestant. *Page 254
"State of Oklahoma, Oklahoma County, ss.
"S.P. Freeling of lawful age, being duly sworn, on oath says: That he signed the above for the uses and purposes therein set forth.
"S.P. Freeling.
"Subscribed and sworn to before me this 14th day of November, 1931.
"Hallie Whitaker, (Seal) "Notary Public
"My commission expires Mar. 2, 1933.
"Service of the above and foregoing notice is hereby acknowledged to have been received by me this, the 14th day of November, 1931, at the hour of 12.4 o'clock, p. m.
"R.A. Sneed, "Secretary of State."
"November 14, 1931.
"Mr. S.P. Freeling, Protestant, "Cotton Grain Exchange Building, "Oklahoma City, Oklahoma.
"Dear Sir:
"This is in response to your letter of the 14th instant, requesting me to furnish to your force all petitions on all seven initiative petitions for Oklahoma, Kay, Choctaw and Creek counties, and such other varied and separate petition sheets as may be needed to get addresses, etc.
"You will please be advised that these petitions are matters of public, record in this office and, as such, are available to reasonable public inspection. In an opinion to Mr. H.B. Cordell, President of the Board of Agriculture, dated November 13, 1929, the Attorney General stated:
" 'It is unquestionably the law that the public has the right to inspect all public records provided, of course, that the request to do so is made in reasonable time and that the work of inspection will not interfere with the proper functioning of the department.'
"This office is now engaged in performing its statutory duties in regard to these petitions and shall not be interfered with in its functioning.
"I have permitted your employees to inspect the petitions in this office and will continue to do so. However, in availing yourself of this privilege, it will be necessary for you to make such examinations as you desire to make without disturbing the regular order or arrangement of them by this office, and to follow this department in work on each petition.
"The hearing on Initiative Petition No. 112 will be commenced November 18, 1931, and the protests to the other petitions will be taken up in regular order, according to their number. For that reason, it will be necessary for you to complete your examination of Petition No. 112 before November 18th, and on each of the others prior to the time of the hearing on that particular petition.
"It is only in this manner that your inspection will not operate to interfere with the functioning of this department.
"Very truly yours,
"R.A. Sneed, "RAS :BR Secretary of State."
There were more than 6,000 sheets of signatures. The finding of the Secretary of State is that there were 121,401 signatures thereon. The "statutory duties" of the Secretary of State in regard to the petition had not been completed by the 14th day of November, 1931, and were to be continued thereafter. The volume of work required that length of time. If it required the Secretary of State that length of time to perform his statutory duties in regard to the petition, the protestant should not be condemned for asking for a reasonable time for the exercise of his statutory rights in regard to the petition. The order of the Secretary of State made on the 20th day of November, 1931, recites that "unless the protestant can show enough forgeries, duplications, or entire lack of addresses or other fatal incorrectness of the petition at this hearing, the Secretary of State need continue this hearing no further." The effect of that order was to deprive the protestant of his statutory right to present testimony and arguments against the sufficiency of the petition, and such an order made on the 20th day of November, 1931, after a hearing commenced on November 18, 1931, at 1:00 o'clock p. m., and after the Secretary of State had held that he had no authority to cause the issuance of subpoenas for witnesses and has refused to do so, could have no other effect.
It has been stated that "This question is whether or not the Governor of this state has a right to call this election under the Constitution." I agree to the correctness of that statement, but I think that the Governor of this state had no authority to call this election under the Constitution, for there had not been a legal determination, in the manner provided by the Legislature pursuant to its constitutional authority, of the sufficiency of the petition. The Governor, in his argument to the court, stated:
"Again, when the power of the initiative or referendum is exercised by the people, the people become a Legislature, and the supreme legislature, and the Governor is presiding officer of that legislature. He calls *Page 255 them to order for the purpose of legislating."
That statement is in accordance with the rule stated by this court in Peebly v. Childers, State Auditor, 95 Okla. 40,217 P. 1049, wherein this court held:
"While engaged in considering bills which have passed both houses of the Legislature and which are presented to him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive.
"While exercising this function the Governor is a special agent with powers limited by the Constitution and he can only act in the specified mode and can exercise only the granted powers. If he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual for any and every purpose."
The Governor is a part of the legislative department when the people are engaged in the exercise of the initiative power reserved by them under the provisions of the Constitution, but before the Governor can become the "presiding officer of that legislature," that "legislature" must be in session and that "legislature" may be called in session only in the manner provided by the Constitution and the Legislature, which is by the filing with the Secretary of State of a petition sufficient in form and signed by not less than eight per centum of the legal voters. Until that has been done, the legislature is not in session and the Governor is not the presiding officer thereof. While the Governor calls the people "to order for the purpose of legislating," he may not "call them to order" until eight per centum of the legal voters have petitioned him to do so, and the power has not been conferred upon him to determine whether or not the petition filed with the Secretary of State is sufficient.
"The filing of a petition for a referendum is not a legislative act, but merely a matter preliminary to the legislative act; and hence an investigation into its sufficiency is not beyond the jurisdiction of the courts." State ex rel. McNary, Dist. Atty., v. Olcott, Secy. of State,62 Or. 277, 125 P. 303.
Therein the action was to enjoin the Secretary of State from placing upon the ballot a referendum petition as to an appropriation for the benefit of the State University. The Legislature of Oregon provided by statute for an injunction against the Secretary of State and other officers upon a showing that an initiative or referendum petition was not legally sufficient. It was contended that "legally sufficient," as used therein, meant "regular upon its face," and that the court could not go beyond its apparent regularity to inquire into its genuineness. That view was not adopted by the court. The court said:
"It is conceded that there is no power granted to the Secretary of State to call witnesses and examine into the facts to determine the validity of any petition. His powers are not judicial, but ministerial; and if this power does not reside in the courts, a petition, consisting wholly of forged names, can be presented, and the public put to the expense of printing the measure and submitting it to a vote. This would be giving a forced and unnatural construction of the law in favor of fraud. The Legislature never contemplated such a vicious construction. We are of the opinion that by the term 'legally sufficient' the Legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law."
Our Legislature has made no such provision, but has provided for an appeal from the order of the Secretary of State to this court. The language quoted from the Supreme Court of Oregon is applicable to the proceedings before this court.
It was contended before the Supreme Court of Oregon that the filing of a petition was a legislative act and consequently beyond the jurisdiction of the court to investigate. That contention was not adopted by the court. It said:
"The signing and filing of a petition is a matter preliminary to the legislative act. It is that which calls the legislative power into action. It is more a legislative act than the placing of a candidate's name for the state Legislature upon the ballot is a legislative act. If the candidate for legislative honors presents a petition, signed by the required number of legal voters, and in other respects complying with the law, his name is entitled to go upon the ballot. If the partisan of a referendum measure presents a like petition, the measure is entitled to go upon the ballot."
The Supreme Court of Oregon held:
"Where referendum petitions contain evidence of forgeries, perpetrated either by the circulators, or with their connivance, the prima facie case in favor of the genuineness of the petitions is overcome; and the burden is on those upholding the validity of the petition to establish the genuineness of each signature."
But though the Legislature is in session, the powers of the Governor as a member of the Legislature are limited and he can exercise only the power granted to him. The power granted to him is to call an election *Page 256 when the sufficiency of the petition has been determined in the manner provided by law, and when he attempts to call an election prior to that time, his act is wholly ineffectual for any and every purpose. The authority of this court to determine whether or not a Legislature is in session was exercised in the case of Simpson v. Hill, 128 Okla. 269, 263 P. 635, in which this court, held that article 4 of the Constitution "* * * is an inhibition against the Legislature, or any members thereof, undertaking to perform a prerogative given by the Constitution to another department of state government." That statement is applicable herein, and while the Governor is authorized to call an election by the provisions of section 3, article 5, supra, he may do so only when the petition provided by section 2, article 5, supra, has been filed with the Secretary of State, and the sufficiency of the petition is to be determined by this court where an appeal has been taken to this court from an order of the Secretary of State. The Governor is without authority to determine the sufficiency of such a petition.
In Simpson v. Hill, supra, it was held that the Legislature had no inherent power to convene. In the case at bar the inherent power of the people to convene for legislative purposes was surrendered by the adoption of section 2, article 5, supra, and after the adoption of that provision they had no inherent right to convene for legislative purposes. Thereafter they could be called together for legislative purposes only in the manner provided in the Constitution and by legislation suitable for carrying into effect the provisions of the Constitution.
To the same effect is Marsden v. Harlocker, 48 Or. 90, 85 P. 328, wherein an election was held to be invalid for the reason that it was not called in accordance with the provisions of the Constitution and statutes of the state of Oregon. It was therein held that it is the duty of the county court, and not the clerk, to inspect the petition for an election and examine its records to ascertain whether it complies with statutory requirements, and if so, to order an election, and that that order is a condition precedent to a valid election and that there was no valid election where the members of the court did not meet or assemble and make the proper investigations, but merely signed a memorandum purporting to authorize an election.
That holding was in direct conflict with the theory of the Governor, stated by him, as follows:
'* * * Admitting that the Secretary of State, for a moment, had no right to certify to the Governor, nevertheless it has been done here, and the court cannot undo that act by way of injunction."
The evident purpose of the statement was to contend that the Governor acted upon a certificate of the Secretary of State and, having so acted, his action may not be controlled by this court. In the executive proclamation, it was said:
"Whereas, on the 25th day of November, 1931, the said Secretary of State transmitted to me, the undersigned, 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 title."
There is nothing in that language to indicate that any notice of acceptance had been given by the Secretary of State to the Governor, but the Governor concluded that the petition had been accepted and coupled the statement of that conclusion with the statement of fact that the Secretary of State had notified him, in writing, of the ballot title having been decided upon, in such manner as to permit the inference that the Secretary of State had notified him that the petition had been accepted. The language used was as follows:
"Whereas, said petition having been accepted and said ballot title 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."
In view of the statement, I set out the certificate of the Secretary of State, which is in words and figures as follows, to wit:
"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 *Page 257 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.
"R.A. Sneed, "Secretary of State."
(Seal)
It will be noted from the certificate that the Secretary of State certified that all of the papers and documents on file in his office relating to the initiative petition in question had been transmitted by the Secretary of State to the Supreme Court of Oklahoma on the 24th day of November, 1931, pursuant to notice of appeal served upon him, as by law provided. The Governor was thereby given the information that the question of the sufficiency of the petition in question was before this court on appeal and his action in making an executive order calling an election was without authority of law and is void. He cannot justify it on the certificate of the Secretary of State, for the reason that the Secretary of State never at any time notified him that the petition had been accepted, as required by section 6635, C. O. S. 1921. On the contrary, that certificate certified to him that the petition had not been accepted, that the sufficiency thereof had been questioned, and that the determination of that question was pending before this court.
It is contended that "accepted," as used in section 6635, supra, refers to acceptance by the Secretary of State, and Mr. Humphrey, in his discussion, said:
"Whenever a petition is accepted, that is, by the Secretary of State, its title has been decided upon, then the Secretary of State shall in writing notify the Governor, and who forthwith shall issue a proclamation setting forth the substance of the measure."
Such is not the meaning of the word. An initiative petition is not "accepted" within the meaning of the act so long as the sufficiency thereof is being contested before the Secretary of State or, upon an appeal from his order, before this court.
In his argument to this court, the Governor said:
"The source of all power being the people, the people have reserved unto themselves the right to make laws independent of the Legislature, and on referendum to nullify the act of both houses and the signature of the Governor."
I do not agree with that conclusion. 'The source of all power is the people, but the people exercised that power in the adoption of the Constitution, and with the adoption of that Constitution they surrendered that power. They did not therein reserve unto themselves the right to make laws, independent of the Legislature. They therein reserved unto themselves the right to make laws in the manner provided by the Constitution and by legislative acts suitable for carrying into effect the provisions of the Constitution. They specifically provided that:
"The Legislature shall make suitable provisions for carrying into effect the provisions of this article." Section 3, article 5, supra.
That authority granted by the people to the Legislature was not an idle gesture. It was for the purpose of making the constitutional provisions effective and for carrying into effect the initiative and referendum provisions of the Constitution. The people could have made suitable provisions for carrying into effect the provisions of the article and could have included them in the Constitution as a part thereof, but, in the exercise of their discretion, they elected not to do that, but to confer that power upon the Legislature, and, since they so elected and acted, this court must give effect to their action, and this court is not authorized to strike down suitable provisions enacted by the Legislature for carrying into effect the provisions of the article. Mr. Humphrey, in his argument before this court, took the position that the decisions of this court, holding that an initiative petition was ineffective where it was not properly submitted, "were wrong." He said: *Page 258
"The people had all the authority in the beginning. The people did not give that authority to anybody. I say any day in the week, any month in the year, if the people step out here to the polls and say by a majority vote this or that should be the law, that is it, because the people have never so tied their hands that they cannot do that."
That conclusion is erroneous. While the people had all the authority in the beginning, they did not retain all the authority, but they prescribed limitations upon themselves and they authorized the Legislature to make suitable provisions for carrying into effect those limitations.
In referring to "the people," due regard must be had to all of the people, although it is the custom for classes of people to refer to themselves as "the people" and, in some instances, for individuals to refer to themselves as "the people." The petitioners in this case do not constitute the people any more than the protestant constitutes the people. All of the people adopted the Constitution, and the Constitution is legally effective as to all of the people. The initiative provisions of the Constitution do not require a majority vote of the people. They require, as to initiative measures, the approval of only "a majority of the votes cast in such election." Section 3, article 5, supra. By the adoption of the Constitution the people agreed that the majority of the vote cast in an initiative election should be sufficient to make effective an initiative measure. Majority rule was thereby dispensed with. The right of eight per centum of the legal voters to propose a legislative measure was granted. Section 2, article 5, supra. But the rights of those who were not petitioners thereon must be considered. We are not authorized to say that the rights of not less than eight per centum of the legal voters to propose a legislative measure are any more sacred to them or controlling upon this court than the rights of the remainder of the citizens to have the initiative proceedings conducted in the manner and form and at the time provided by the Constitution and the legislative provisions suitable for carrying the same into effect. This court does not sit as a court to protect the rights of some while destroying the rights of others. Under the theory of our government, all of the people are entitled to have their rights protected. Where a controversy is presented to this court between the people, some of whom insist that certain proceedings are sufficient and some of whom insist that those proceedings are not sufficient, it becomes the duty of this court to determine the rights of the parties. The petitioners herein say: We have presented a valid petition, the Governor has called an election, we are entitled to have the election conducted, and this court is without authority to prevent the conducting of the same. That contention overlooks the rights of the protestants, who insist that no sufficient petition was filed, that the calling of the election by the Governor was without authority of law, and that the public funds of the state are about to be wrongfully and illegally used for the purpose of paying the costs of the conducting of an illegal and unauthorized election. This court must determine which of those contentions is correct. Responsibility rests upon it under the Constitution of this state. I cannot, should not, and will not attempt to evade that responsibility.
The position of the Governor in this case is defined by his statement:
"Admitting that you have a case before your Honors, whatever your Honors may find, if you do not find that less than 8 and 15 per cent. signed, it cures everything"
— and:
"Suppose the court finds later that there was not 8 and 15 per cent., then the bill fails, notwithstanding the election. But any other effect is cured by the election, because it follows the meaning and demand of the Constitution itself; 8 and 15 per cent. That is the key to the whole question."
I cannot agree with that contention. To do so would permit the Governor of the state to call an election at any time, and if, thereafter, it appeared that the petition filed was sufficient in form, the election would be valid and the legislation voted on would be enacted if it received the necessary majority. Such is not the law of this state. This court held to the contrary in Simpson v. Hill, supra, when it held:
"An affirmative vote by the people of the state, at a special election, gives, no force and effect to an initiated measure, unless the same is ordered submitted at such special election by the Legislature or the Governor of the state. (Section 3, art. 5, Oklahoma Constitution.)"
— and in Looney v. Leeper, Secy. of State, et al.,145 Okla. 202, 292 P. 365, when it held:
"There was no authority for the submission of the proposed amendment at said special election, and the affirmative vote thereon, by a majority of those voting at said election, gave the same no legal force or effect."
The basis of those decisions is that the *Page 259 defect in the calling of the election was not cured by the election, and though the majority of the voters voting at the election voted for the initiative measure, the same was ineffective and of no force. In the latter case the record shows that there were 173,262 votes for the adoption of the measure as against 86,445 votes for the rejection thereof. Notwithstanding the majority in favor of the measure, it was held not to have been legally adopted. The Supreme Court of Oregon, in Marsden v. Harlocker, supra, so held. In support of its holding it said:
"As the right to vote upon the question of prohibiting the sale of intoxicating liquors is inaugurated by filing a petition, the election held in pursuance thereof is special, and hence the making of an order therefor by a county court, which in this particular respect at least requires an exercise of discretion and judgment, is mandatory and becomes a condition precedent to the holding of a valid election."
It is stated in the executive order that:
"The state and its people are sorely in need of the revenues imposed and collectible under this act, in order that there may be a reduction in the rate of ad valorem taxation; and if said proposed measure is not voted upon in the year 1931, serious legal questions will arise, resulting in vexatious and hazardous litigation, affecting not only the right of the state to tax the 1931 income of taxpayers, but the very life of this important measure"
— and that:
"Because of the momentous and far-reaching consequences that may result from a failure to hold the election on this proposed measure in the year 1931, I feel that I would be derelict in my duty, as Governor of the state of Oklahoma, if I failed to issue my proclamation in time to permit the holding of such election prior to the expiration of the present year."
The state may be sorely in need of the revenues imposed and collectible under the proposed legislative measure, but the people of the state are sorely in need of a reduction in governmental expenses rather than in the payment of taxes to the state in an increased amount. The effect of the proposed legislative measure is to increase the amount of revenue to be paid by the people in the form of taxes to the state. The "momentous and far-reaching consequences" spoken of may or may not result from a failure to hold the election on the proposed legislative measure in the year 1931. Section 1, article 10, of the Constitution provides that the fiscal year should commence on the 1st day of July in each year, unless otherwise provided by law, and it has not been otherwise provided by law. Section 2, article 10, of the Constitution provides that the Legislature shall provide by law for an annual tax sufficient with other resources to defray the estimated ordinary expenses of the state for each fiscal year. Those and other constitutional provisions must be applied to the proposed legislative measure and, when so applied, the language thereof, "A tax is hereby levied, for the taxable year 1931 and for each taxable year thereafter," must be construed and the meaning of "the taxable year 1931" determined. What is the meaning of the language, "the taxable year 1931?" If it means the fiscal year commencing July 1, 1931, the act could be adopted by the people with the same effect prior to June 30, 1932. If it means the fiscal year ending June 30, 1931, it could be adopted by the people at any time prior to June 30, 1932, with the same effect as though it were adopted by the people now. I express no opinion as to the meaning. I know of no reason why constitutional and valid legislative provisions as to the holding of initiative elections should be abrogated or disregarded. The emergency, if any, arose from a failure to file the petition in the office of the Secretary of State in sufficient time for an orderly hearing thereof, as provided by the Constitution and the laws of this state. The result of such failure could have been foreseen. The petitioners may not delay the filing of an initiative petition until the closing weeks of the year and then demand an election be held before the closing of the year, in violation of the plain provisions of the Constitution and applicable statutes and over the protest of qualified voters who did not petition. In other words, they may not create an emergency and claim an advantage by reason of having created it. The power of this court and the duties of the members thereof remain the same whether or not there is an emergency. There is no power in the petitioners to have an election on an initiative petition prior to the next election held throughout the state. By the provisions of section 3, article 5, supra, the people provided that such measure should be referred to the people at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. The right of the petitioners to have an election during the year 1931, therefore, is not an issue in this case. The issue here is the right of the Governor to call the election *Page 260 during the year 1931. While this court is not authorized to control the discretion of the Governor as to when he shall call an election which he is authorized by law to call, this court is authorized by law, and it is the duty of 'this court to hold that an election called by the Governor without authority of law is of no force and effect.
I cannot agree with the conclusions of the Governor that the Constitution and laws of the state clearly vest in him the power and authority to call an election in the manner and at the time in which it was done. The power is not given to him to construe the Constitution and provisions or laws of the State. That power is vested in the judicial branch of the government. He will have discharged to the fullest extent the duties and responsibilities imposed upon him when he executes the laws of the state of Oklahoma as construed and applied by the courts of this state.
This court has the highest respect for the will of the sovereign people of Oklahoma and, under the oath of the members, thereof and out of respect for the will of the sovereign people, it is its duty to construe and apply the provisions of the Constitution and the laws of the state. The people adopted that Constitution. They are entitled to its protection and to the protection of each and every provision thereof, and this court cannot abjectly surrender power clearly granted to it by the provisions of the Constitution in order that the executive department of the state may function as the executive head of the state, desires to have it function.
In Simpson v. Hill, supra, this court 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 these exact questions, and we have acted upon the principle that it is our duty rather to embrace than to repel the settlement of uncertainties. This is not novel in the jurisprudence of the states, for, on a similar occasion, in the case of State ex rel. Postel v. Marcus, 152, N.W. 419, the Supreme Court of Wisconsin, in part, said:
" 'While dealing with the subject suggested might be avoided at this particular time, it does not seem best to do so; but rather to face the situation and solve it. Much harm may come by uncertainty as to an important constitutional question being permitted to exist until affairs, public and private, shall have been adjusted to a condition apparently legitimately created by a legislative effort. * * * The policy and duty here is rather to embrace than to repel opportunity to remove such uncertainties.
" 'No feature of the judicial function is of equal dignity with that which requires dealing with what is and what is not, really, a part of the Constitution. * * * None requires an equal degree of care to reach a right conclusion and courage to pronounce it. The court may, and should, and must, on such great occasions, look to effects and consequences. Not to do so with the thought of hesitation, much less omission to do what duty to here and to the public requires; but as an inspiration to reach the highest attainable degree of certainty of the right being vindicated in the end.'
"The law of Oklahoma is as we have stated it. It does not follow, however, that this court will direct an injunction be issued against private citizens from coming to Oklahoma City. If the members of the Legislative come to the Capitol, they come as individuals. They can incur no obligation; they can perform official functions, until the Chief Executive of the state exercises the discretion vested in him by the said section 7 of article 6 and calls the said body into extraordinary session. Otherwise the Legislature of Oklahoma convenes in regular biennial session the first Tuesday after the first Monday in January, 1929, and for no purposes can function until then."
This cause came to this court in the way provided by the Constitution and laws of this state for a trial de novo as to the sufficiency of the petition filed with the Secretary of State. It is said that this court should follow the opinion of the Supreme Court of Oregon in State ex rel. Carson v. Hoss, Secretary of State, 292 P. 324, in which it was held that the circulation of a referendum petition was proper, notwithstanding an appeal was pending from the ballot title prepared by the Attorney General. It is evident that the facts in that case were different from the facts in this case, for here the appeal presents the question of the sufficiency of the petition, and not the correctness of the ballot title prepared by the Attorney General. In the Oregon case there was no question presented as to the sufficiency of the petition. In the case at bar it is contended before this court that the petition is not sufficient. This court acquired jurisdiction of the subject-matter for the purpose of determining that question and set the cause for trial. In that fact is the difference between this case and McAlister, Secy. of State, v. State ex rel. Short, 95 Okla. 200, 219 P. 134, McAlister v. State ex rel. Walton, 96 Okla. 143, 221 P. 779, City of McAlester v. Milwee, 31 Okla. 620, 122 P. 173, and Lowry v. Town *Page 261 of Meeker, opinion filed July 7, 1931, 151 Okla. 264,1 P.2d 378, for therein the court did not have jurisdiction, and it was so held by this court. In those cases it was sought to have the courts acquire jurisdiction of the subject-matter for the purpose of interfering with an election. In the case at bar the court has jurisdiction of the subject-matter by virtue of the plain provisions of the statute. The issue here is whether or not this court should protect that jurisdiction. If the Governor of the state of Oklahoma can call an election while an appeal is pending in this court from the order of the Secretary of State as to the sufficiency of the petition filed with him, the mayor of a city may call an election while an appeal is pending in this court from the order of the city clerk. The statement of that proposition shows the absurdity thereof. To permit such action would be to defeat the power of this court to exercise jurisdiction conferred upon it by the statutes of this state. The decision by the Supreme Court of Kansas in the case of Duggan v. City of Emporia, 84 Kan. 429, 114 P. 235, was a determination of an appeal from an order of the district court refusing a temporary injunction, and under the facts in that case, as disclosed by the opinion, the action was an independent one and the order sought was not ancillary to the jurisdiction of the court. Before the trial had begun, the Governor of the state declared that the petition filed with the Secretary of State was sufficient and called an election. This court, having jurisdiction of the subject-matter and of the parties, has the power to preserve that jurisdiction. I know of no authority to the contrary. The Governor has declared that he will hold the election on the 18th day of December, 1931, and that this court is without authority to prevent the holding of the same. Personally, I shall not attempt to prevent the holding of the same. I have given my views of the law. The responsibility of the election rests on the Governor.
In my opinion, it is the duty of this court to inform the Governor and the people of the state as to the law with reference to the issues involved in this case in order that the people may know whether or not the election called for December 18, 1931, is to be a valid election and if, in the opinion of this court, that election is not to be a valid one, that the Governor of the state, after having been informed by this court as to the law, may have an opportunity to withdraw his order and election proclamation and thereby save the taxpayers of the state the cost of holding an invalid election or save the State Auditor the embarrassment of being compelled to refuse to pay the claims of the election officials holding the election. I cannot agree with the majority that the question of the legality of the proposed election should not be determined until after the election is held. To postpone the decision of that question can accomplish no good. If the election will be illegal and the result thereof ineffective, it seems to me that it should be so held at this time, that the people may have that information before the election is held. On the other hand, if the election will be a valid one and the result thereof effective, I think the people should have that information before the election is held.
Since the members of this court have not agreed upon an opinion stating the law with reference to the validity of the proposed election, I consider it to be my duty to inform the people of the state as to what I consider the law of the state to be. I refuse to so act that anyone may have the opportunity of saying that I waited to express my views as to the law in this cause until after the people of the state had spoken at the election.
For the reasons stated, I am filing herein my views, after having dissented from the opinion of the majority.
In re Initiative Petition No. 114, State Question No. 169. No. 23084.