This case presents an appeal to this court from the decision of the Secretary of State on Initiative Petition No. 112, State Question No. 167, relative to a proposed act known as the Oklahoma Income Tax Law. Said petition was circulated and was filed in the office of said Secretary of State, on the 31st day of October, 1931, purporting to be signed by 121,401 legal signers. On the 9th day of November, 1931, a protest to said initiative petition and said state question was filed in said office of the Secretary of State by the Honorable S.P. Freeling, a qualified and legal voter and citizen of the state of Oklahoma. Said protest being as follows:
"Before the Honorable R.A. Sneed, Secretary of the State of Oklahoma.
"In re: Initiative Petition No. 112, State Question No. 167,
Being designated as the initiative petition filed by the Hon. Baxter Taylor, to enact as a law of the state of Oklahoma, the proposed act contained in said Initiative Petition No. 112, State Question No. 167.
"Protest. "To the Honorable R.A. Sneed, Secretary of State of the state of Oklahoma, and to the Honorable Baxter Taylor, who filed said Initiative Petition No. 112, State Question No. 167, and to others who may be interested:
"Comes now S.P. Freeling, a qualified and legal voter and citizen of the state of Oklahoma, and protests and objects to the said Initiative Petition No. 112, State question No. 167, filed herein, for the following reasons, to wit:
"1. Said Initiative Petition No. 112 was not filed in the time and manner provided by law.
"2. Said petition was not signed by a sufficient number of qualified voters of the state of Oklahoma, or by 8 per cent. of the total number of votes cast for Governor at the last election, and was not signed by 8 per centum of the legal voters of said state.
"3. Said petition contains large numbers of duplicate signatures, that is, the names of persons who have signed said petition more than once, the exact number of such duplicate signatures being at this time to this protestant unknown.
"4. Said petition contains the names of fictitious persons and persons not residents of the state of Oklahoma.
"5. Large numbers of purported signers did not give their post office address, and the post office address is not contained in said petition following the names of the purported signers.
"6. Large numbers of purported signers did not give their street address, although purporting to reside in a city of the first class and in cities and towns where the United States mail is delivered by carrier, and for the reason that said large numbers of purported signers did not give their street address they cannot be traced, and their purported signatures should not be counted.
"7. Said petition is not in the form provided by law.
"8. The verification of circulators was not in the form provided by law, and is insufficient in law.
"9. Many of the verifications did not give the name of the county in which said petitions were circulated.
"10. Said petitions were not properly acknowledged by the circulators.
"11. Said purported verifications, where given, did not on many of the petitions contain the post office address of the circulator, or of the notary taking the acknowledgment.
"12. Many thousands of names on said petition did not represent registered voters or persons having the qualifications of voters.
"13. Thousands of signers of said petition did not know the nature of the instrument they were signing.
"14. Many of said petitions were not acknowledged in any manner. *Page 210
"15. The purported address of the said signers was written after their signature, by the circulator, or by other persons after the signature, and in many such cases was written by persons unacquainted with the facts.
"16. Many of said petitions were signed by circulators with names contained thereon the signatures of which said circulators did not witness.
"17. That when the said illegal and improper signatures are considered and disregarded, there will not remain a sufficient inumber of legal signatures on said petition to constitute a legal petition in law, and that the signatures on said petition were not procured and certified in the manner provided by law.
"18. Because the parties submitted such proposition did not file a copy of the same with the Attorney General of the state at the time the same was filed with the Secretary of State.
"19. Because the ballot title filed with the said measure is improper and not according to the law of the state of Oklahoma.
"20. Because the circulators of said petition did not rewrite the names of the signers on the back of said petition.
"Wherefore, the protestant prays that said petition be disregarded, and said purported Initiative, Measure No. 112, State Question No. 167, be dismissed.
"S.P. Freeling, Protestant.
"State of Oklahoma, Oklahoma County, ss.
"S.P. Freeling, being first duly sworn, upon oath deposes and says: That he is familiar with the statements and allegations in the foregoing protest, and believes the same to be true.
"S.P. Freeling
"Subscribed and sworn to before the undersigned authority on this 9th day of November, 1931.
"(Seal) Hallie Whitaker, Notary Public.
"My commission expires Mar. 2, 1933."
A hearing was had thereon before the Honorable R.A. Sneed, Secretary of State, and said Secretary of State, on the 20th day of November, 1931, made his decision, the same being as follows:
"Before the Secretary of State of the State of Oklahoma.
"In the Matter of State Question No. 167, Initiative Petition No. 112.
"Decision. "This matter coming on to be heard before me, the undersigned Secretary of State, upon the protest by S.P. Freeling to said Initiative Petition No. 112, and the protestant being present in person and by his attorney, E.M. Box, and the circulator of said petition, Baxter Taylor, being present in person and by his attorneys, T.J. Leahy, and W.D. Humphrey, the Secretary finds, as follows:
"1. That, on October 13, 1931, at 5:30 p. m. Baxter Taylor did file in the office of the Secretary of State a true and exact copy of Initiative Petition No. 112.
"2. That thereafter, on October 31, 1931, at 5:30 o'clock p. m., the said Baxter Taylor did file the original of said Initiative Petition No. 112 in the office of the Secretary of State in the presence of the Governor of the state of Oklahoma which was thereupon received and filed by the Secretary of State, in the manner provided by law.
"3. That thereafter, on November 2, 1931, the Secretary of State did issue for publication in the Blue Valley Farmer, a newspaper of general circulation within the state, a notice setting forth the date of such filing, and notifying any citizen of the state, that, within ten days, protests might be received against the same, as by law provided.
"4. That thereafter, on the 9th day of November, 1931, S.P. Freeling did give notice to R.A. Sneed, Secretary of State, and the said Baxter Taylor, that he had filed with the Secretary of State a protest against said initiative petition, and that he did, on the 9th day of November, 1931, at 3:10 o'clock p. m., file with the Secretary of State a protest against said initiative petition.
"5. That thereafter, on the 10th day of November, 1931, the Secretary of State notified the said protestant that he would hear testimony and argument for and against the sufficiency of said petition on November 18, 1931, at the hour of 8 o'clock a. m., and that such hearing would continue from day to day until the same was concluded.
"6. That thereafter, on the 18th day of November, 1931, at the hour of 8 o'clock a. m., the said hearing was continued until the hour of one o'clock of said day.
"7. That thereafter, on the said 18th day of November, 1931, this matter came on for hearing before the Secretary of State, and the appearances being as above set forth, protestant requested the Secretary of State to cause the issuance of subpoena to certain sundry witnesses. The Secretary of State thereupon refused to cause the issuance of said subpoena, for the reason that no authority existed in law for this action, by reason whereof such action would amount to a usurpation of authority and power by the Secretary of State.
"8. Thereupon, the protestant adduced the testimony of various and sundry witnesses, and the hearing was adjourned until 8:30 o'clock a. m., on November 19, 1931.
"9. That thereafter, on the said 19th day *Page 211 of November, 1931, this matter came on again for hearing, with appearances as above set out, the Secretary of State declared the nature of the testimony which he would consider as valid objections to the said petition, and protestant was requested to state whether or not he could establish the invalidity of sufficient signatures on said petition to make the legal signatures on said petition less than the number required by law for submission of said petition; 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. If protestant can do this, the Secretary is prepared to enable him to do so. Thereupon the protestant, S.P. Freeling, made the following statement:
" 'In view of the holding just announced and in view of the further fact that the protestant has a right by trial de novo in the Supreme Court to establish any right he might have, he agrees that it is useless to proceed further before this trial.'
"10. Thereupon, the Secretary of State declared that he had caused to be tabulated, in the manner provided by law, the signatures to the said Initiative Petition No. 112, and that he found said petition contained a total of 121,401 signatures, and that, under the laws and Constitution of the state, it is his duty to decide whether such petition be in form as required by law.
"And, now, being fully advised in the matter, and having ascertained that there are more than enough signers on said petition, as required by law, and that said petition is in Conformity to the requirements of law, I, R.A. Sneed do hereby decide that said petition is in due form of law and amply sufficient in all things, and that said question thereby proposed should be certified to the Governor, to the end that the same may be submitted to the electors of the state, as is provided by law.
"Witness my hand, this 20th day of November, 1931.
"(Seal) R.A. Sneed, Secretary of State."
The appeal was lodged in this court on the 23rd day of November, 1931, and on the 25th day of November, 1931, the Chief Justice convened this court for the hearing on such appeal. This court on its own motion raised the question of the sufficiency of the protest filed before the Secretary of State. The same was set for hearing in open court for the 28th day of November, 1931. On the day of said hearing the Honorable Baxter Taylor on behalf of petitioners filed a motion to dismiss said appeal, on the ground that the same was insufficient in law, which motion was overruled by a constitutional majority of said court, and the court set December 9, 1931, as the date for hearing said appeal. On the 7th day of December, 1931, there was filed with the Clerk of the Supreme Court in Re Initiative Petition No. 112, an application by the Honorable S.P. Freeling for injunction or writ of prohibition against the Honorable Frank C. Carter, as Auditor of the state of Oklahoma, and the State Election Board, which application is as follows:
"In the Supreme Court of the State of Oklahoma.
"In re Initiative Petition No. 112, State Question No. 168. No. 23,082
"Application. "Comes now S.P. Freeling, the protestant in the above-styled cause, and represents and shows to the court:
"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 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 the 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, and 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 rule 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 *Page 212 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 Hon. Wm. H. Murray, Governor of Oklahoma, and to Hon. 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 5th day of December, 1931, the said Hon. Wm. 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 determined in this court, all of which act and proclamation was without authority of law, and void, and of no legal effect.
"8. The protestant further says that the Legislature of Oklahoma, at 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 in 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, Okla., Hon. John W. Hayson, of Oklahoma City, and Hon. Reford Bond, of Chickasha, Grady county, Okla., 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, the said Election Board has threatened and 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 rights of this protestant and all other citizens of the state similarly situated.
"That said Election Board has already advertized for bids of 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.
"11. The protestant further says that, under the law of Oklahoma, it is made mandatory that the registrars of the several precincts in said state shall, not less than twenty (20) days before the election throughout the state, open the registration books for the purpose of registering the voters becoming qualified since the last preceding registration, and that said registrars shall close said books not less than ten (10) days prior to the said election, the purpose of which was to afford said newly qualified voters the opportunity to register and exercise the right of suffrage as citizens of the state.
"That if said election is held under the proclamation above stated, it will be impossible for said registrars to comply with the law, and impossible for newly qualified voters to register and exercise the right of suffrage as citizens of the state, and will be deprived of said right.
"12. The protestant further says that he and all other citizens similarly situated have no adequate remedy at law for the *Page 213 protection of the rights above claimed and stated, and he further says that having assumed jurisdiction of this case, that this court has plenary power and authority to make and issue orders to all parties who have any duties to perform or proceeding to to take in connection with carrying out the commands and directions in said proclamation, and the protestant therefore files this, his application, for the protection of his rights as a citizen, and the rights of all other citizens similarly situated, and for the protection and upholding of the proper and lawful jurisdiction of this court.
"13. The protestant says that he is entitled to an order issued out of and from this court directed to the said Election Board and to the said Frank C. Carter as Auditor, for a protection of his rights as a citizen of said state.
"Wherefore, the premises considered, the protestant prays:
"First: That the State Election Board, J. Wm. Cordell, John W. Hayson, and Reford Bond, and the Hon. Frank C. Carter, State Auditor, be made parties defendant to this application, by proper order of this court.
"Second: That the court, by its proper orders and processes, enjoin, restrain, or otherwise prohibit the State Election Board, J. Wm. Cordell, John W. Hayson, and Reford Bond, from incurring any expense in connection with the printing of any ballots to be used in said election, or incurring any obligation for any expense or payment concerning the printing of this measure on said ballots or doing any other act or thing which would expend or cause to be expended any sum from any appropriation now available for election purposes in the state of Oklahoma, in connection therewith.
"Third: That the court, by its proper orders and processes, enjoin, restrain, or otherwise prohibit the said Frank C. Carter as Auditor of the state of Oklahoma, from issuing any warrant for the payment of any sum or sums incurred by said Election Board in connection with the printing of any ballots for said election, or the printing of this measure on any ballots to be used in said election, or the incurring of any other expense in connection with said election.
"S.P. Freeling, Protestant.
"By Owen Looney, "J.R. Keaton, "Freeling Box, His Attorneys.
"State of Oklahoma, Oklahoma County, ss:
"S.P. Freeling, of lawful age, being first duly sworn, on oath says: That he is the protestant in the above-entitled cause; that he has read and is familiar with the statements and allegations in the above and foregoing application, and that said statements and allegations are true and correct, as he verily believes.
"S.P. Freeling,
"Subscribed and sworn to before me this 7 day of December, 1931.
"(Seal) Hallie Whitaker, Notary Public.
"My commission expires Mar. 2, 1933."
On the 25th of November, 1931, the Secretary of State, under his hand and seal, made a certification to the Honorable Wm. H. Murray, Governor of the State of Oklahoma, 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 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.
"R.A. Sneed, "(Seal) Secretary of State."
It is the duty of this court to determine the question of its jurisdiction on its own motion and it will not ignore a want of jurisdiction because the question is not raised or discussed by either party. Jones v. *Page 214 Toomey, 115 Okla. 169, 241 P. 1105; Howard v. Arkansas,59 Okla. 206, 158 P. 487. An examination of the protest shows that the same was verified on belief. It sets forth 20 separate paragraphs of protest. There are no definite allegations of any facts in any of said paragraphs or causes of action therein set forth. Said protest consists of generalities and conclusions. Section 262, C. O. S. 1921, provide:
"The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses."
Section 265, C. O. S. 1921, provides, in part, that a petition must contain:
"Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition."
Section 527 provides:
"A trial is a judicial examination of the issues, whether of law or fact, in an action."
Section 528 provides as follows:
"Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party, and controverted by the other. There are two kinds: First, of law. Second, of fact."
Section 529 provides:
"All issue of law arises upon a demurrer to the petition, answer or reply, or to some part thereof."
Section 530 provides:
"An issue of fact arises: First, upon a material, allegation in the petition, controverted by the answer; or, second upon new matter in the answer, controverted by the reply; or, third, upon new matter in the reply, which shall be considered as controverted by the defendant without further pleading."
49 Corpus Juris, page 137, in paragraph 141, announced the following rule:
"It is, however, necessary that the allegations should be sufficient to show to the court that a good cause of action actually exists, and if such allegations go no further than to show that such a cause of action might exist, the pleading is insufficient."
In 21 R. C. L. page 440, in paragraph 5, it is said:
"It is a well-settled rule that legal conclusions are not to be pleaded, for it is the duty of the courts to declare the conclusions and of the parties to state the premises."
And again, 21 R. C. L. on page 448, in paragraph 11, it is said:
"As a corollary of the rule that facts, not conclusions, must be averred, it is also a rule that facts must be pleaded directly and positively and not by way of recital."
The only paragraph of said protest which approaches the dignity of a fact is paragraph 2, being as follows:
"Said petition was not signed by a sufficient number of qualified voters of the state of Oklahoma, or by 8 per cent. of the total number of votes cast for Governor at the last election, and was not signed by 8 per centum of the legal voters of said state."
It is on the strength of this paragraph of the protest that protestant contends he has stated facts sufficient to protest the initiative petition in question. How is it possible for petitioners to meet an issue of this kind and character in the absence of any allegation of fact contained therein? No particular portion of the state, nor the name of any county, nor any particular precinct of any city or county of the state is designated, nor is there any allegation as to the number of illegal and improper signatures. The protest consists of conjecture and conclusions and does not present any issue of fact which the petitioners could be called upon to meet.
In the case of Ramer v. Wright, 159 P. 1145, the Supreme Court of Colorado passed upon the sufficiency of an initiative and referendum petition under protest, and in the first paragraph of the syllabus of said case said:
"Under Laws 1913, p. 311, sec. 3, providing that all initiative and referendum, petitions shall be deemed sufficient unless a protest in writing under oath shall be filed, a written protest to a petition to refer, the verifying certificate of the officer reading, 'Subscribed to before me this 10th day of July, 1915,' etc., was insufficient, as not showing that the signers swore to the instrument before the officer."
In the body of the opinion, the court said:
"The petition therefore is required to be under oath, and it is but just that such a petition should be met with a protest likewise under oath, as the statute requires. The Legislature has treated both the petition and the protest as very serious matters, and has required that both shall be under oath. If the oath in the one case may be omitted, then it may also be omitted in the other, and there would remain no protection to the public from fraudulent referendum petitions. The statutes provides a severe penalty in both cases.
"The constitutional amendment authorized the Legislature to adopt a special procedure in such case, and the Legislature has enacted a statute in apparent harmony with the constitutional provision. This statute *Page 215 declares that all petitions properly verified shall be deemed and held sufficient if they appear to be signed by the requisite number of signers, and that such signers shall be deemed and held to be qualified electors unless otherwise determined under the specific procedure provided.
"The procedure requires also that a protest shall be filed with the Secretary of State within 15 days from the date of the filing of the referendum petition. It is further declared that such protest shall set forth specifically the grounds of such protest and the names protested. The further specific requirement is that such protest must be under oath. These requirements are clearly jurisdictional, and the Secretary of State is without power to act in the absence of a substantial compliance with these requirements of the statute. We have held in this case that the protest under consideration was vitally defective in one respect at least, in that it was not under oath. Therefore the proceedings of the Secretary of State upon and under such insufficient protest were without authority of law, and are without force or effect."
The statutes of Colorado are different from the provisions of our statute, in reference to the verification of the protest. It is not necessary under our statute that the protest should be under oath, but, in my opinion, it should contain definite facts setting forth specific grounds of protest.
A written protest partakes of the nature of a pleading. Pleadings are for the purpose of presenting the issues to the court, and are defined by section 262, C. O. S. 1921, supra, as follows:
"The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses."
Pleadings should be framed as our statutes provide so that they contain a statement of the facts constituting a cause of action in ordinary and concise language. The protest in question has been attempted to be verified, not upon information and belief, but upon belief. In other words, the protestant believes the conclusions stated in paragraph second to be true. Litigants on appeal to this court ought not to be permitted to astutely refrain from stating facts upon which issues may be joined. The signers of the initiative petition in question were confronted with a solemn warning placed at the head of the petition in bold type, that it is a felony for any one to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter, and before his signature the following language appears:
"I have personally signed this petition; I am a legal voter of the state of Oklahoma, and of the county of _____; my residence and post office address are correctly written after my name."
Loose forms of pleading, such as the protest in the case at bar, if sanctioned and approved, would tend to encourage the purpose of those who seek to defeat bona fide legislative enactment. If any citizen desires to protest an initiative petition, there should be no valid reason why he should not be required to set forth in explicit terms the facts upon which he bases his grounds of protest under a solemn verification that the facts therein stated are true. Courts should not tolerate nor permit evasive pleadings in proceedings of this character, which may be designed and used for the purpose of interfering with legislative enactment.
Section 1 of article 5 of the Constitution provides in reference to the initiative or referendum under the legislative department as follows:
"The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."
Section 3 of article 5 of the Constitution provides, in part, as follows:
"* * * Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article."
From these sections it appears that the Legislature shall make suitable provisions for carrying into effect the provisions of this article.
The procedure provided for by the Legislature is found in section 6631, C. O. S. 1921. This section provides that:
"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. * * * 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. * * *" *Page 216
From this section of the statute, it appears that there is no provision for a trial "de novo" in this court. There is no other section of the statutes which relates to an appeal from the decision of the Secretary of State to this court. From a close reading of this section it is to be observed that this section provides for a hearing. Such hearing is not and cannot be considered as a judicial examination of issues, as in the case of a trial in a court of record. The office of the Secretary of State is not a judicial tribunal performing judicial functions. The Secretary of State has no authority to issue subpoenas, to enforce the attendance of witnesses, nor to compel the production of books, papers, and documents. He has been designated by the Legislature in initiative and referendum matters for the determination of the sufficiency of initiative and referendum petitions filed in his office addressed to the Governor of this state. He is called upon to do this official or administrative duty in making an investigation of the sufficiency of the petitions presented to him, and he must act accordingly on his best judgment from the best sources obtainable. The appeal referred to in said section 6631 does not provide for any stay of proceedings, abeyance, or suspension of the powers or duties of the Secretary of State relative to an initiative petition pending the appeal therefrom to the Supreme Court.
The protestant was given the opportunity to offer proof concerning the sufficiency of the petitions. The Secretary in his decision states, in part, as follows:
"That thereafter, on the said 19th day of November, 1931, this matter came on again for hearing, with appearances as above set out, the Secretary of State declared the nature of the testimony which he would consider as valid objections to the said petition, and protestant was requested to state whether or not he could establish the invalidity of sufficient signatures on said petition to make the legal signatures on said petition less than the number required by law for submission of said petition; 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. If protestant can do this, the Secretary is prepared to enable him to do so. Thereupon the protestant, S.P. Freeling, made the following statement:
" 'In view of the holding just announced and in view of the further fact that the protestant has a right by trial de novo in the Supreme Court to establish any right he might have, he agrees that it is useless to proceed further before this tribunal,'
"10. Thereupon, the Secretary of State declared that he had caused to be tabulated, in the manner provided by law, the signatures to the said Initiative Petition No. 112, and that he found that said petition contained a total of 121,401 signatures, and that, under the laws and Constitution of the state, it is his duty to decide whether such petition be in form as required by law."
Protestant does not show or even intimate that the Secretary did not afford him such fair and impartial hearing as is contemplated by the statute, but relies solely and primarily upon the theory that he had the right to come into this court and try his protest de novo. It is my opinion that it was never within the contemplation of the framers of our Constitution, nor does it come within the purview of the aforesaid section 6631, supra, that a protestant should come into this court on appeal from the Secretary of State on an initiative petition as in an original action for the purpose of a trial, without first offering some evidence before the Secretary reasonably tending to support his contentions of protest. It was never intended that there should be an original trial in this court. The statute specifically 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, 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."
Section 527, C. O. S. 1921, provides:
"A trial is a judicial examination of the issues, whether of law or fact, in an action."
A hearing is different. The Secretary was empowered to pass judgment on the sufficiency of the petition from the best source obtainable. If in this he acts arbitrarily and refuses to perform his official duty, redress may be had. In the instant case, the Honorable R.A. Sneed, as Secretary, requested of protestant to make a showing relative to the fatal incorrectness of the petition. This the protestant refused to do.
Section 6635, C. O. S. 1921, is as follows:
"Whenever a petition accepted and its title has been decided upon, the Secretary of State shall, in writing, notify the Governor, who forthwith shall issue a proclamation setting forth the substance of the *Page 217 measure and the date of the referendum vote."
There is nothing in the statute nor in the Constitution relative to the initiative and referendum provisions which prohibits the Secretary of State from accepting the petition after its title has been decided upon, notwithstanding an appeal to this court. After the petition has been accepted and its title has been decided upon, it is the duty of the Secretary of State to so notify the Governor. There is no provision in the Constitution, nor in the statutes, authorizing any stay in the proceedings on the part of the Secretary of State or the Governor pending an appeal to this court on behalf of a protestant. Such provisions relative to appeals are legislative and not judicial.
"Appeals have no existence at common law, and any right of appeal must be based on some provision of Constitution or statute." Pacific Gas Radiator Co. v. Superior Court (Cal.)232 P. 995.
Under the procedure for appeals from the justice of peace, provision has been made that an appeal may be perfected by the filing of an appeal bond, and the cause is thereafter tried de novo in the appellate court. If such appeal bond has been approved, no proceedings may be had in the inferior tribunal pending such appeal. However, if the appeal is by bill of exceptions and petition in error, as provided for by sections 999, 1000, and 1001, C. O. S. 1921, the judgment is not stayed.
In reference to appeals from the district, superior, or county courts to the Supreme Court, appeals will lie without entering into a supersedeas bond and an appeal from an order vacating a judgment and granting a new trial does not stay further proceedings in the trial court unless a supersedeas bond is granted or allowed. Pennsylvania Co. v. Potter,108 Okla. 49, 233 P. 700. The only purpose or effect of such supersedeas bond is to stop execution or to stay other proceedings to enforce the judgment. Hutchings v. Windsor,92 Okla. 37, 207 P. 1044. Starr v. McClain, 50 Okla. 738,150 P. 666. The procedure for appeals in all cases is by constitutional or statutory provisions, and no litigant as a matter of right is entitled to an appeal except as provided for therein.
In the absence of any constitutional or statutory provision for a stay of proceedings, the Secretary of State was not only authorized, but, in fact, it was his official duty to notify the Governor as was done in the instant case. Had protestants desired to prevent such notification, we need not determine whether they were without remedy in a court of equity. In reference to procedure on appeals in initiative and referendum matters, it is not the province of this court to legislate on this question.
In the case of State ex rel. Carson, Dist. Atty, v. Hoss,292 P. 324, the Supreme Court of Oregon held that:
"Circulation of valid referendum petition held proper, notwithstanding pending appeal from ballot title prepared by Attorney General."
This cause was brought by the state of Oregon, on the relation of the district attorney of Marion county, against Hal E. Hoss, as Secretary of State, praying for a decree enjoining the Secretary of State from printing upon the ballot of the next general election to be held in that state any ballot title referring to the people the legislative act designated as chapter 193, General Laws of Oregon 1929, and requiring that officer to cancel the filing of that certain referendum petition filed, by William F. Woodward, and holding the attempt to invoke the referendum on that legislative act to be ineffectual and void. From a decree dismissing the complaint, plaintiff appeals to that court. In the body of the opinion, the court says:
"It is contended that the referendum petition was unlawfully circulated among the voters because it was circulated pending the appeal to this court from the ballot title prepared by the Attorney General. It is true that it was circulated prior to the determination of the appeal. However, the petition so circulated was in proper form. It contained proper matter, and the ballot titles prepared by the Attorney General were properly printed thereon. Moreover, no person could have been injured or deceived by the circulation of this petition prior to the decision of this court on the appeal. Oregon Laws, sec. 4100, as amended by chapter 255, General Laws of Oregon 1927, was fully complied with. The law grants no stay in the proceedings pending an appeal to this court from a ballot title prepared by the Attorney General. As stated by the Attorney General at the argument, this view is not without precedent.
"The powers of government flow from the people. And the people of Oregon, after vesting legislative authority in the Legislative Assembly, reserved to themselves the power to propose laws, and to enact or reject them at the polls, and also reserved power at their own option to approve or reject at the polls any act of the Legislative Assembly." Or. Const. art. 4, sec. 1.
"From the facts in this cause, we have not the right to enjoin the Secretary of State from taking the necessary steps, as provided *Page 218 by law, to submit the 'two additional circuit judges bill, to the people for their approval or rejection on November 4, 1930.' "
I am of the opinion that this case is decisive of the question herein relative to procedure. It is immaterial in the instant case whether the case was pending in this court, on appeal, at the time the Secretary of State made his notification to the Governor. We have no statute in this state that stays proceedings of the Secretary of State pending an appeal to this court for a determination of the sufficiency of an initiative petition.
Section 1, art. 4, under "Distribution of Powers," the Constitution of Oklahoma, provides that:
"The powers of the government of the state of Oklahoma shall be divided into three separate departments: The legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."
Section 1 of article 2, Bill of Rights, provides as follows:
"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."
Under this provision, incorporated under the Bill of Rights, it was specifically provided that the government was instituted for the protection, security, and benefit of the people, and to promote their general welfare, and that they had a right to change the form of same whenever the public good required it, provided that such change was not repugnant to the Constitution of the United States.
It was the purpose of the Constitution to permit the people to change the fundamental law in a plain, simple manner, without interference from the executive or judicial branch of the government.
The Supreme Court of Mississippi, in the case of Green v. Weller, 32 Miss. 650, in speaking of the right of the people to change their Constitution in the mode prescribed therein, in forceful language says:
"This objection would have more force if the act of itself operated as an alteration of the Constitution. But it is merely a proposition to be submitted to the action of the people. It is a means provided by which the people may exercise their sovereign right of declaring whether they will change their Constitution or not, thereby establishing the mode in which the government shall be changed, instead of leaving it to unregulated popular impulse. The proposition is presumed to emanate from the people, through their representatives, and is regularly submitted for the action of the whole people. There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting, in an established form, to a free people, the proposition whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their Constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the state to change their Constitution in the mode prescribed by the instrument."
Under section 4, art. 2 of the state Bill of Rights, there is the following provision:
"No power, civil or military, shall ever interfere to prevent the free of the right of suffrage by those entitled to such right."
This section of the Bill of Rights is no metaphor. The words therein are explicit, positive, and permit no caviling as to their true intent and purpose.
In the case of Gottstein v. Lister, Governor, 153 P. 595, the Supreme Court of Washington said:
"There are those who seem to regard the courts as the sole guardian of the Constitution, and that nothing wrongfully or mistakenly done or left undone by those charged with constitutional duties can escape the correcting power of the courts. That this is fallacious needs little reflection to demonstrate. Of course, when it comes to considering individual rights, such as are protected by the guaranties, that the right to trial by jury shall remain inviolate, that no person shall be deprived of life, liberty, or property without due process of law, that no law shall grant to any citizen or class of citizens priviledges or immunities which upon the same terms shall not equally belong to all citizens, and many other constitutional guaranties that look to protection of personal rights, the courts have ample power, and will go to any length, within the limits of judicial procedure, to protect such constitutional guaranties. * * *
"Those vested with legislative and executive powers of the state have duties and *Page 219 obligations resting upon them by the mandates of the Constitution for the performance of which they are answerable alone to their own consciences and to the people; just as the courts have duties and obligations resting upon them by the mandates of the Constitution for the performance of which the judges are answerable alone to their own consciences and to the people. It will not do to say that, because there may be no correcting remedy for neglect of legislative or executive duties, the courts by that fact alone acquire some correcting power over legislative and executive acts. Our Constitution is not framed upon the assumption that official integrity resides alone in the courts. Some things, though mandatory, are intrusted for their performance to the legislative and executive branches of the state government, branches coequal, within their spheres, with the courts."
In the case of Worman v. Hagan, 78 Md. 152, 165, 27 A. 616, cited by the Washington court in 153 P. 595, states as follows:
"It may be asked what is to be done in case the Governor should violate his duty, and wrongfully proclaim an amendment as adopted which in point of fact had been rejected. It would not be becoming in this court to suppose that such a contingency would ever happen. The courtesy due to the executive department forbids us to entertain such a conjecture. But if, unhappily, in future times, it ever should occur, assuredly a sufficient remedy will be found. The resources of a free government are ample, and will always be found adequate to punish and redress offenses against its sovereignty."
Since the appeal was lodged in this court, an application was filed in this case in which the protestant asked that the State Auditor and the State Election Board be made parties defendant, and that said Election Board be restrained and enjoined from incurring any expense in printing ballots or in doing any other act which would cause the expenditure of funds, and that the State Auditor be restrained and enjoined from issuing warrants to pay the expenses of the election. This court, by a constitutional majority, made said parties defendants. Since doing so, however, this court reconsidered its order and denied said application in so far as it applied to the State Election Board. The protest filed with the Secretary of State deals with the sufficiency of the petition. The application for injunction deals with an entirely separate and distinct question. It seeks relief against other departments of our government whose duties are entirely separate and apart from the office of the Secretary of State. Wrongful expenditure of public funds should be most strongly condemned, and should be prevented whenever and wherever possible. In this case, however, to make the State Auditor a party defendant and to enjoin him as prayed for in said application would interfere with the free and orderly holding of the election called for December 18, 1931. This court is enjoined by law not to interfere with elections directly or indirectly.
The Supreme Court of Kansas, in the case of Duggan v. City of Emporia, 114 P. 235, which was an action to enjoin the calling and holding of an election under the initiative and referendum as applied to cities of the second class on the ground of alleged irregularity in the petition and because the proposed ordinance to be submitted to the electors purported to authorize the city to perform an act which it was claimed was ultra vires, said in paragraphs 1 and 2 of the syllabus as follows:
"1. It is a principle of general application that courts will not enjoin the calling and holding of an election.
"2. Injunction, being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur; acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the relief."
In the body of the opinion, the court said:
"In Walton v. Develing, 61 Ill. 201, it was held, that the court had no power to enjoin the holding of a township election to determine whether a majority of the voters were in favor of subscribing to the stock of a railroad company, and that the defendants who had violated the order were not liable for contempt of court for disobedience to the writ. In the opinion it is said: 'But the attempt to check free expression of opinion, to forbid the peaceable assemblage of the people, to obstruct the freedom of elections, if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. If the court can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate. The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed, and all power and authority placed at the footstool of the judge."
"In the language of the Supreme Court of Pennsylvania: 'The power ought to be plain, indeed, to authorize courts to forbid municipal elections when ordered by the Legislature. It is not plain, nor do we think *Page 220 it exists.' Smith v. McCarthy, 56 Pa. 359, * * *
"On the other hand, in State ex rel. Cranmer v. Thorson, 9 S.D. 149, 68 N.W. 202, 33 L. R. A. 582, which was an action brought to enjoin the Secretary of State from certifying a joint resolution proposing an amendment to the Constitution, the relator alleged that he would be injured as a taxpayer by the unnecessary expense; but it was said in the opinion that 'any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful, and speculative for serious consideration.' * * *
"One of the grounds urged for the injunction is that the ordinances are unconstitutional because of some defect in their title; but this gives a court of equity no jurisdiction to enjoin the passage of an ordinance. No one would claim that the Legislature could be enjoined from the enactment of an unconstitutional law, or that the electors could be enjoined from attempting in an unwarranted manner to amend the Constitution. It is a familiar principle that injunction will not lie to prevent legislative actions by a municipal corporation. New Orleans Waterworks v. New Orleans,164 U.S. 471, 17 Sup. Ct. 161, 41 L.Ed. 518; Cape May Schellenger's Landing R. R. Co. v. City of Cape May, 35 N.J. Eq. 419; State ex rel. Rose v. Superior Court of Milwaukee County,105 Wis. 651, 81 N.W. 1046, 48 L. R. A. 819. * * *
"The futility of the proceedings to enjoin the submission of the proposed ordinances is likewise obvious when we reflect that the people may not adopt them, and the court ought not be called upon to anticipate conditions which may never arise."
In the case of City Council of City of McAlester v. Milwee,31 Okla. 620, 122 P. 173, this court, in the first paragraph of the syllabus, stated:
"A court of equity has no jurisdiction to restrain the holding of an election, since the right involved is a political one."
In the body of the opinion, the court said:
"Many applications have been made to this court to interfere with the holding of elections of one kind or another by the exercise of some of the high prerogative writs over which original jurisdiction has been vested in this court by the Constitution, all of which have been consistently refused. As the question is jurisdictional, we cannot overlook the uniform practice merely because counsel do not wish to make that point. Courts of equity are only conversant with matters of property and the maintenance of civil rights and will not interfere to enforce or protect purely political rights."
In this case no order was made on said State Auditor to show cause why he should not be made a party defendant, but this court determined in advance, without any hearing or evidence adduced by either side, that said State Auditor was a necessary party defendant. It was stated in open court by counsel for protestant that this court had no right to enjoin an election, but that, if this court did make said State Auditor and the election board parties defendant and granted the injunction prayed for, it would stop the election. This would be doing indirectly what this court cannot do directly. The Constitution has spoken otherwise. In the case of Thompson v. Haskell,24 Okla. 70, 102 P. 700, cited in Consolidated School District No. 97 v. Sloan, 135 Okla. 29, 273 P. 271, this court said:
"When a party seeks the intervention of a court of equity to stay the administration and execution of the law by the executive department of state, he must bring himself clearly within the rule, and show an irreparable injury, or otherwise a clear right thereto, before equity will lend its strong arm to stay the administration or work of the co-ordinate branch of government."
The protestant in the absence of any definite statement of fact in his protest, which is the basis of his application to make the State Auditor a party defendant and for an injunction against said auditor, has failed to bring himself within the foregoing rule.
The provisions of the Constitution of this state requiring the Legislature to provide the procedure by which the initiative or referendum might be called into force and effect are mandatory. The Legislature has not seen fit, up to this time, to limit or restrict this procedure with cumbersome details. The procedure, however, is directed toward a speedy disposition of such matters. The granting of an injunction in this case upon the application filed herein, in my opinion, would have the effect of embarrassing election officials and indirectly interfering the election which has been called for December 18, 1931. We cannot anticipate the result of the election, but if the measures are carried, and if the same are illegal and void, and an attempt is made to enforce the same, then the courts are still open for the purpose of testing their validity, as guaranteed by section 6 of the Bill of Rights:
"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." *Page 221