The terms of the Constitution and the acts of the Legislature are the safeguards we have for the determination of the matters that are before us. The executive officers involved are the Governor of the state, whose powers are defined by the Constitution, and the Secretary of State, the State Auditor, and the State Election Board. Incidentally our own jurisdiction is involved. Our jurisdiction is defined in the Constitution. Section 1, art. 7, is as follows:
"Sec. 1. The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law."
Section 2 of article 7 is as follows:
"Sec. 2. The appellate jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs, as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the Justices shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any district court, or judge thereof, in the state."
Our jurisdiction in this case does not arise directly from the constitutional grant, but whatever jurisdiction we have comes from the legislative enactment, acting under the grant above — "and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law."
The division of governmental power in our Constitution is not left to inference, as in some Constitutions, like the federal, but is specific. Article 4, found on page 127, C. O. S. 1921, reads as follows:
"Sec. 1. 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 other."
Article 5 defines the legislative power, and the sections here applicable are as follows:
"Sec. 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.
"Sec. 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 fifteen 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 cast at the last general election for the state office receiving the highest number of votes at such election.
"Sec. 3. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures voted on by the people. All elections on measures referred to the people of the state shall be had 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. Any measure referred to the people by the initiative shall take effect and be in force when it shall have been approved by a majority of the votes cast in such election. Any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by the majority of the votes cast thereon and not otherwise.
"The style of all bills shall be: 'Be it Enacted By The People of the State of Oklahoma.' *Page 222
"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.
"Sec. 4. The referendum may be demended by the people against one or more items, sections, or parts of any act of the Legislature in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections, or parts of an act shall not delay the remainder of such act from becoming operative.
"Sec. 5. The powers of the initiative and referendum reserved to the people by this Constitution for the state at large, are hereby further reserved to the legal voters of every county and district therein, as to all local legislation or action, in the administration of county and district government in and for their respective counties and districts. The manner of exercising said powers shall be prescribed by general laws, except that boards of county commissioners may provide for the time of exercising the initiative and referendum powers as to local legislation in their respective counties and districts.
"The requisite number of petitioners for the invocation of the initiative and referendum in counties and districts shall bear twice, or double, the ratio to the whole number of legal voters in such county or district, as herein provided therefor in the state at large.
"Sec. 6. Any measure rejected by the people, through the powers of the initiative and referendum, cannot be again proposed by the initiative within three years thereafter by less than twenty-five per centum of the legal voters.
"Sec. 7. The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the state and the Constitution of the United States.
"Sec. 8. Laws shall be provided to prevent corruption in making, procuring, and submitting initiative and referendum petitions."
It will be observed that section 3 vests in the Governor no specific powers connected with the matter of initiated matters that are state-wide, while as to local matters, covered in section 5, the Constitution does not go into details as in case of state-wide matters, but leaves it to the Legislature to make general laws.
The veto power allowed the Governor in matters passed by the Legislature is forbidden in matters "voted on by the people," but the power to order a special election is conferred upon the Legislature and also on the Governor by section 3. That section also provides that "petitions" and "orders" shall be filed with the Secretary of State, and shall be addressed to "the Governor of the state, who shall submit the same to the people." Ordinarily a constitutional requirement of this kind is considered mandatory, and the judgment of the officer named is the standard as to when the necessity for action, as well as the propriety of action, arises.
The Legislature was required to make suitable provisions to carry into effect the provisions of the entire article. However, under ordinary rules, a provision already made could not be changed by Legislative enactment, it being confined to acting when provisions were not already made. Section 5 clearly left it to the Legislature to provide the entire machinery for ascertaining the will of the voters in local matters. Article 4 made an exception in the distribution of power by reference to other parts of the Constitution. Most clearly, under art. 5, sec. 3, when the Constitution conferred upon the Governor the power to be the one to whom the referendum petitions were addressed, though filed in the office of the Secretary State, the usual rule would follow of that power, passing upon the sufficiency, but when the other provision, imposing on the Governor in mandatory terms the duty to call the election, is studied, it would seem to be that this court should not interfere with the Governor, and while there has accumulated, by the lack of attention to the distinctions made by the Constitution itself, a line of cases that indicate, in a limited degree, that there can be interference by this court, they do not seem to be very well considered in the light of the provisions of the Constitution that are plain. However, any interference by this court must come from a conferring by the Legislature upon it of power to act, as the express provisions of the Constitution are negative. In making an effort to make suitable provisions for carrying into effect the provisions of the article, and pursuant to the provision to pass laws to prevent corruption in making, procuring, and submitting initiative petitions, the Legislature has passed some statutes. It is not thought that the Legislature, under the general rules of constitutional interpretation, in passing those laws, undertook to confer upon an inferior executive officer, namely the Secretary *Page 223 of State, judicial power. His duties are defined by section 17, article 6, of the Constitution, which are as follows:
"Sec. 17. The Secretary of State shall keep a register of the official acts of the Governor, and when necessary, shall attest them, and shall lay copies of the same, together with copies of all papers relative thereto, before either house of the Legislature when required to do so. He shall also perform such other duties as shall be prescribed by law."
The latter part of it, about his performing other duties, such as might be prescribed by law, in view of the fact that he is made a part of the executive branch of the government, is undoubtedly controlled by article 6, and it is beyond the power of the Legislature, therefore, to confer upon the Secretary of State judicial power, and the Legislature, each member of which was under an oath to support the Constitution, is not presumed to have deliberately vested in an executive officer judicial power, when the Constitution forbade, and especially when the Constitution had already, in large measure, placed that power in someone else by name.
Article 6 of the Constitution is the part dealing with the executive department, which seems to have been placed ahead of the judicial, either by the committee on style or by virtue of the importance attached by the Constitution makers to the distribution of power, the judicial power being put the last in order, both by language contained in article 4, on the distribution of power, and also by the location in order. Section 1 of article 6 is as follows:
"Sec. 1. The executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books, and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law."
Section 2 of article 6 is as follows:
"Sec. 2. The supreme executive power shall be vested in a chief magistrate, who shall be styled 'The Governor of the State of Oklahoma'."
Section 8 of article 6 is as follows:
"Sec. 8. The Governor shall cause the laws of the state to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the state with other states and with the United States, and he shall be a conservator of the peace throughout the state."
Section 11 of article 6 is as follows:
"Sec. 11. Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who (which) shall enter the objections at large in the journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment."
There are various other sections connecting the Governor with duties, but none of them seem to be more specific than the one that we find in the article on the subject of legislation, that has been heretofore referred to.
The first act of the Legislature on the subject of initiative and referendum may have undertaken to confer upon the Secretary of State power prohibited by the Constitution, but not necessarily so, if by construction we can make the act apply and comport with the Constitution. The first enactment on the subject is the statute of 1907-08, found in the Session Laws of 1907-08, page 440. The first section provides a form for a petition for referendum. The second section is the initiative petition. An initiative petition is involved here. The form of the petition *Page 224 follows the language in the Constitution, by making it an order of the signers to the Governor. It further provides a statement from the voter himself, of having personally signed it, and of being a legal voter of the state, and that his residence and post office address is correctly written after his name. The time for filing, set forth therein, is nine months from the time of the filing of copy in the case of the state, and three months in the case of a county. The question to be submitted is to be set out, and a copy of the measure, followed by 20 lines of signatures. Provision is made for pamphlets, and on the outer page of each pamphlet there was required to be printed the word "WARNING," and underneath that, in ten-point type, the words: "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." It was further provided that when the petition was offered for filing, that the Secretary of State, in the presence of the Governor and in the presence of the persons offering the same for filing, should detach the sheets containing the signatures and affidavits and cause them all to be attached to one or more printed copies of the measure. There was a further provision about the size of the printing, and binding them in two or more volumes, and it was provided that the detached copies of the measure should be delivered to the person offering the same for filing. It is further provided that if the measure should be approved at the ensuing election, by the people, the preserved copies and the sheets of signatures, and affidavits, and a certified copy of the Governor's proclamation declaring the same to have been approved by the people, shall be bound together in such form that they may be conveniently identified and preserved. It was further provided that the Secretary of State "shall cause every such measure approved by the people to be printed with the general laws enacted by the next ensuing session of the Legislature, with the date of the Governor's proclamation declaring the same to have been approved by the people."
It is further provided that every sheet of the petition containing signatures, should be verified on the back by the person who circulated the sheet, by an affidavit to the effect that the individuals signed the petition in the presence of the person making the affidavit, and that he believed that he had signed his name and post office address and residence correctly, and that he also believed that he was a legal voter. It is prescribed that the title and the signature of the officer before whom the oath was made and post office address should be given. There is a section about the filing and numbering of petitions, and section 6 is as follows:
"Sec. 6. (Sufficiency of Petition — Right of Appeal — Speedy Trial Assured.) Whenever an initiative petition or referendum petition shall be filed with the Secretary of State, he shall at once proceed to examine into its sufficiency. If any one desires to appear for or against it he shall receive testimony and arguments. Whenever such petition applies to a measure upon which the initiative or the referendum is invoked for the state at large, his decision may be appealed from to the Supreme Court of the state, and the case shall have precedence over all others. If the court is adjourned it shall be immediately convened. In all other cases said appeal shall be to the district court of any county in which a petition was circulated, and said district court may hear and determine same, in term time or vacation.
"The appellants shall serve upon the Secretary of State written notice of appeal, and said Secretary of State shall thereupon transmit to the clerk of the court such of the original papers and documents in the case as may be specified by the appellant or appellee. In case the court shall decide the petition is insufficient, it shall state in what respect it is insufficient and return the petition to the committee of petitioners for correction, which corrections may be made and the petition returned to the Secretary of State within five days, and when so corrected and returned, the petition shall be considered filed as of the date that the original petition was presented for filing. No objection to the sufficiency of any petition shall be considered unless the same shall have been made in writing and filed within five days after the filing of the petition."
It will be observed that if the court decided the petition was insufficient, it should point out in what respect it was insufficient, and should return the petition to the committee of petitioners for correction. It is further provided that within five days correction could be made, and the corrected petition should be returned to the Secretary of State, and when so corrected and returned, the petition should be considered filed as of the date when the original petition was presented for filing. It is further provided that no objection to the sufficiency of any petition should be considered unless the same should have been made in writing and filed within five days after the filing *Page 225 of the petition. There is a further provision that when the petition was filed, the Secretary of State should forthwith transmit to the Attorney General a copy of it, and the Attorney General in ten days should provide and return to the Secretary of State a ballot title for said measure, and that this ballot title should be printed with the number of the measure on the printed ballot. The Attorney General is required to be impartial in the matter, whether for or against the measure, and it is provided that any person dissatisfied could ask the Supreme Court for a different title by giving his reasons why the title prepared by the Attorney General is insufficient or unfair. It is further provided that five days is the limit for taking this appeal, and service should be made forthwith, and the court should examine the measure, and hear arguments, and in its decision thereon, the court should certify to the Secretary of State a ballot title for the measure in accord with the intent of this section.
By section 8, the Secretary of State was required, whenever a petition was accepted and its title decided upon, to notify the Governor in writing, and the Governor was required to forthwith issue a proclamation setting forth the substance of the measure and the date of the referendum vote. Publication was required as soon as practicable. When measures come from the Legislature, arguments were provided for, and they are provided to be completed in not less than two weeks after the Governor's announcement of submission of the measure.
In section 17 the provision for procedure in municipalities is provided, and it is provided that the duties required by the Governor and Secretary of State by the act should be performed by the chief executive and chief clerk. Section 20 is as follows:
"Sec. 20. (Who May File Petitions and Vote — Penalties.) Every person who is a qualified elector of the state of Oklahoma may sign a petition for the referendum or for the initiative for any measure for which he is legally entitled to vote upon. Any person signing any name other than his own to any petition, or knowingly signing his name more than once for the measure at one election, or who is not at the time of signing the same a legal voter of this state, or whoever falsely makes or willfully destroys a petition or any part thereof, or who signs or files any certificate or petition, knowing the same or any part thereof to be falsely made, or suppresses any certificate or petition or any part thereof which has been duly filed or who shall violate any provision of this statute, or who shall aid or abet any other person in doing any of said acts; or any officer or any person violating any provision of this statute, shall upon conviction thereof be punished by a fine of not exceeding five hundred dollars or by imprisonment in the penitentiary not exceeding two years, or by both such fine and imprisonment in the discretion of the court before which such conviction shall be had."
The last section is section 21, which is as follows:
"Sec. 21. (Sufficiency of Procedure.) The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. If the end aimed at can be attained and procedure shall be sustained, clerical and mere technical errors shall be disregarded.
"That this act take effect from and after its passage and approval.
"Approved April 16th, 1908."
This measure appears to have been amended later by the statutes of 1910. The amendment is found in chapter 66, page 121, Session Laws of 1910. Its title is as follows:
"An Act carrying into effect provisions relating to the initiative and referendum; prescribing the method of procedure for submitting and voting for proposed amendments to the Constitution and other propositions, and prescribing the method of appeal from petitions filed or from the ballot title; repealing sections 6, 7 and 16 of article one, chapter forty-four, of the Session Laws of Oklahoma, 1907-08."
Sections 6 and 7 of the original law are expressly repealed. In lieu of those sections, section 2 of the act of 1910 was enacted, and worded somewhat differently, and is as follows:
"Section 2. When a citizen or citizens desire to circulate a petition initiating a proposition of any nature, whether to become a statute law or an amendment to the Constitution, or for the purpose of invoking a referendum upon legislative enactments, such citizen or citizens shall, when such petition is prepared, and before the same is circulated or signed by electors, file a true and exact copy of same in the office of the Secretary of State, and within sixty days after the date of such filing the original petition shall be filed in the office of the Secretary of State, and no petition not filed in accordance with this provision shall be considered. When such original petition is filed in said office it shall be the duty of the Secretary of State to forthwith cause to be published in at least one newspaper of general circulation within the state a notice setting forth the date of such filing. Any citizen of the state may, within ten days, by written *Page 226 notice to the Secretary of State and to the party or parties who filed such petition, protest against the same, whereupon the Secretary of State shall fix a day, not sooner than five days thereafter, at which he will hear testimony and arguments for and against the sufficiency of such petition. A protest filed by anyone hereunder may, if abandoned by the party filing same, be revived within five days by any other citizen. After such hearing the Secretary of State shall decide whether such petition be ill form as required by the statutes, and his decision shall be subject to appeal to, the Supreme Court of the state, and such court shall give such cause precedence over all others. Provided, such appeal must be taken within ten days after the decision of the Secretary of State has been made. If the court be at the time adjourned, the Chief Justice shall immediately convene the same for such hearing. It shall be the duty of the appellants to serve notice upon the Secretary of State, in writing, of such appeal. Whereupon said Secretary of state shall immediately transmit all papers and documents on file in his office relating to such petition to such court. If the court shall adjudge such petition insufficient the parties responsible for same shall have the right to correct or amend their petition to conform to the opinion of the court, provided said amendment or change is made within five days. No objection to the sufficiency of a petition shall be considered unless the same shall have been made and filed as herein provided."
By this section the time for completion of petition was shortened, and changes were made with reference to examination to be made by the Secretary of state. Under the original section 6, the Secretary of State was required at once to proceed to examine into the sufficiency. Under the new section, the Secretary of State was required to forthwith cause a publication, setting forth the date of the filing. It further provides for any citizen of the state protesting the same within ten days, and it requires the secretary to fix a time when he will hear testimony and arguments, for and against the sufficiency of the petition. It further provides for an abandonment by the first protestant and a reviving within five days by anybody else. The decision of the secretary is "whether such petition be in form as required by the statutes." The provision giving this court jurisdiction is, "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," A provision was inserted requiring the appeal to be taken within ten days after the decision of the Secretary of State has been made. The further provision is, if the court be adjourned at the time of the appeal, that "the Chief Justice shall immediately convene the same for such hearing." The secretary was required, upon receiving notice by writing of the appeal, to "immediately transmit all papers and documents on file in his office relating to such petition to such court." Under the former Statute it was only such papers as were selected by the appellant or appellee. The judgment of this court is indicated by the following language:
"If the court shall adjudge such petition insufficient, the parties responsible for same shall have the right to correct or amend their petition to conform to the opinion of the court, provided said amendment or change is made within five days. No objection to the sufficiency of a petition shall be considered unless the same shall have been made and filed as herein provided."
From this statement of the law of 1910, it is clear that the Legislature never intended to confer upon the Secretary of State judicial power. It is now claimed that the Secretary of State not only had the power, but the duty, to investigate the petitions with reference to a matter that did not appear on the face, in order to determine the sufficiency. So far is this carried that complaint is made that they should have been allowed to summons witnesses from all over the state to establish forgeries and perjuries. The Legislature saw fit to make the judgment of the secretary and of this court go to the sufficiency in form. It further saw fit to require an immediate hearing in this court, laying aside everything else. It saw fit to require only five days' notice before the secretary. Most clearly the Legislature did not contemplate a trial on outside questions of fact, but did provide for an investigation of what appeared on the face of the petitions, namely the affidavits, the signatures, and the ascertaining of the numbers, and a comparison with the records in the office of the Secretary of State showing the vote cast in the last preceding state election. Most clearly, when the Legislature provided for an amendment of the petition, it thereby limited what in its estimation was to be passed on by the court to something that would not go to the absolute destruction of the proceedings. Most clearly, the legislature, in the last requirement, section 21, was trying to advance the proposition of getting the matter of taking the sense of the people, instead of having it hindered and obstruction. Most clearly, the Legislature also recognized the the limit of its own power and the provision of the Constitution expressly denying the *Page 227 Secretary of State judicial function, he being one of the executive officers named in the prohibitory provision of the Constitution. Most clearly, the Legislature also recognized the provisions of the Constitution conferring upon the Governor supreme executive authority, and the positive duty to cause the laws of the state to be faithfully executed. The Legislature recognized that the Governor, by the Constitution, was empowered to name the day for a special election, and to call it, and that his discretion in the matter was uncontrollable, and he was responsible to the electorate for any abuse of his authority in that regard. Most clearly, the Legislature recognized the power of this court, as limited by the Constitution, and it prescribed just what this court could do. It also prescribed what it should do. In other words, "No Delay" was the watchword. As to whether or not this court has performed its duty in expediting the hearing, let God and conscience be the judge.
This law of 1910 appears in the revision of 1910, with some slight changes suggested by the Commissioners who revised the laws. The original section prescribing the requirements of the petition was divided. The provision for verification for signatures was left. The provision for protest was left and the requirement of the Secretary of State to fix the date not less than five days at which time he would hear arguments for and against the sufficiency of the petition. What the secretary could decide was left, namely, "whether such petition be in form as required by the statute," and also the right of appeal to the Supreme Court was left, and its duty to give it precedence over all other matters. The duty of the Chief Justice to immediately convene the court for such hearing, and the requirement that all of the papers be sent to the Supreme Court by the Secretary of State were retained. The adjudication of the court was confined to the insufficiency of the petition, with the right to amend within five days. Most clearly, so far, a trial was not contemplated, to which witnesses should be brought from the rural regions of Oklahoma, or process should issue for witnesses from Miami to Mangum or from Cimarron to the Kiamichi.
However, during the time that the Revised Laws were being formulated in 1910 and 1911, the Legislature saw fit to make some more amendments. The cause for making them is unknown, but they were made. The amendment can be found at page 235, c. 107, Session Laws of 1910-11, and appears practically as section 6631, C. O. S. 1921. It provided for amending section 2 so as to make it read as follows:
"Section 2. When a citizen, or citizens, desire to circulate a petition initiating a proposition of any nature, whether to become a statute law or an amendment to the Constitution, or for the purpose of invoking a referendum upon legislative enactments, such citizen or citizens shall, when such petition is prepared, and before the same is circulated or signed by electors, file a true and exact copy of same in the office of the Secretary of State, and within ninety days after the date of such filing, the original petition shall be filed in the office of the Secretary of State, and no petition not filed in accordance with this provision shall be considered. When such original petition is filed in said office it shall be the duty of the Secretary of State to forthwith cause to be published in at least one newspaper of general circulation within the state, a notice setting forth the date of such filing. Any citizen of the state may, within ten days, by written notice to the Secretary of State and to the party or parties who filed such petition, protest against the same, at which time he will hear testimony and arguments for and against the sufficiency of such petition. A protest filed by any one hereunder may, if abandoned by the party filing same, be revived within five days by any other citizen. After such hearing the Secretary of State shall decide whether such petition be in form as required by the statutes, and his decision shall be subject to appeal to the Supreme Court of the state, and such court shall give such cause precedence over all others, Provided, such appeal must be taken within ten days after the decision of the Secretary of State has been made. If the court be at the time adjourned, the Chief Justice shall immediately convene the same for such hearing. It shall be the duty of the appellants to serve notice upon the Secretary of State, in writing, of such an appeal. Whereupon, said Secretary of State shall immediately transmit all papers and documents on file in his office relating to such petition to such court. If the court shall adjudge such petition insufficient the parties responsible for same shall have the right to correct or amend their petition to conform to the opinion of the court, provided said amendment or change is made within five days. No objection to the sufficiency shall be considered unless the same shall have been made and filed as herein provided."
The emergency was attached, and the date of the act was March 18, 1911. It will be observed that by the new provision it is provided that the secretary shall hear the testimony and argument for and against the sufficiency of the petitions at the time at which the protest is filed. Precedence over everything else was required. *Page 228
The limitations of this court in applying judicial force are most clearly prescribed, namely, to decide on the sufficiency of the petition, with the right of amendment in the parties responsible for the same to correspond to the requirements of the court. It would be reading into the statute that which is not there to say that a right to sue out process to reach all over the state, to secure the attendance of countless witnesses, was conferred on any citizen desiring to protest. It would be preposterous in exaction for the Legislature to require this court, either by appeal or trial de novo, to sit in consideration of such things as might be brought to its attention by such witnesses, and to listen to the attorney that might be retained for the examination, while the business of all other litigants suffered the consequences, just to prevent the Governor of the state from calling the election on a petition required by the Constitution to be addressed to him, with the mandatory duty of calling the election.
There has been engrafted upon this protest the idea of enjoining the election board from providing the machinery to hold the election, and also the idea of enjoining the State Auditor from approving warrants for the expenses of the election. It appears from the records here that an application was made by the protestant for that purpose. He appeared in open court and announced that he wanted to proceed, not only as a citizen of the state, but as a taxpayer. This court one day made an order making the election board parties defendant at the request of the protestant. Some of the members of the court protested, however, but the majority made them parties. They also made the State Auditor a party. After doing this, there were expressions from members of the court that under preceding decisions, and under the Constitution, there was no authority in this court to enjoin the election officials. There does not appear in the records any request by the protestant for an order to strike the election officials as parties, but on the subsequent day, either by way of vacation or by way of correcting a mistake, a majority of this court dismissed the election officials and let them go. However, in view of the fact that the State Auditor was willing, the court retained him as a party. Most clearly, this injunctive power is not conferred by the special act of the Legislature, and on general principles it is not allowable.
The poet Shakespeare makes one of his characters say, "You take my life when you take that upon which I live." The Supreme Court of the United States says that state officials cannot by indirection evade the provisions of the federal Constitution any more than by direction. Efforts have been made from time to time to discover, even invent, means to circumvent the provisions of the federal Constitution. Mr. Cooley, in his work on Constitutional Limitations, refers to that at page 585 of the 8th Edition, as printed by Little Brown, wherein he cites the case of White V. Hart, 13 Wall. 646, 20 L.Ed. 685, Osborn v. Nicholson, 13 Wall. 654, 20 L.Ed. 689, and Jacoway v. Denton, 25 Ark. 641. As to the right of the Legislature to deprive the executive branch of the duties conferred upon it by the Constitution, the matter is discussed also in this work in chapter 5, and according to statements therein contained, the Legislature could not confer upon the Secretary of State judicial power, as his powers were defined and he was classified in the Constitution as being an executive officer. Oklahoma decisions are cited.
Whether the case is here do novo or on appeal apparently would make very little difference. So far as an injunction is concerned, it is clear that, according to the settled practice, we cannot convert this proceeding, brought by a protestant, into an application for an injunction to restrain executive officers from the performance of their duty, whether they be willing, as expressed in statements made, like the State Auditor, to follow whatever the court might decide, or whether they be like the election board, saying nothing and being brought to the bar one day and dismissed the next.
The Legislature has declared what are the requirements to establish the validity of the petitions, on which the Governor, under the Constitutional provisions, is required to act. Under the head of evidence, throughout the statutes are found provisions making documents prima facie as well as conclusive evidence. As well might the recorder refuse to allow an instrument to be recorded, when acknowledged before a notary public and bearing the purported signature of a grantor, upon the ground that he thought perhaps the signature of a subscribing witness was not genuine, or the grantor's name was forged, or the notary had falsified, as for the court, in this case, to grant an injunction of any kind on the showing here offered.
I, therefore, concur in the proposition that the injunction should not be allowed in this case, regretting, however, that the constituted majority of the court, on a suggestion *Page 229 of one of its members, followed by an application for a postponement, had decided to put the question of the sufficiency of these petitions off until after the injunction was disposed of, especially so in view of the fact that under the former decisions of this court, the petitions appearing fair on their face, and appearing overwhelmingly to have been signed by requisite numbers, make out a case that is prima facie, if not conclusive of the right of the petitioners to have a ballot prepared and submitted, in order that the voters may express their views on the proposed measures.