This case, fraught as it has been since the issuance of the opinion of this court, if not before, with public clamor, was submitted to this court on oral argument and without briefs on the part of defendants in error. Seemingly defendants in error in their original petition before this court, and unquestionably in their attorney's petition for rehearing (they not appearing, nor approving his appearance), seek to avoid the force of the opinion of this court in the decision of this matter. In the argument before this court they largely relied upon the so-called inherent right of the Legislature to assemble for impeachment purposes, and urged us to determine they had such inherent right.
Mr. Justice Harrison, while expressing himself then that the matter was not before the court (for the Legislature had not met nor attempted to expend money from the public treasury), cited in his views the case of Farrelly v. Cole (Kan.) 56 P. 492, wherein that Supreme Court said:
"The sole power is thus deposited in the Governor to convene the Legislature on extraordinary occasions." See, also, syllabus 2, therein.
Also observe the citations, Whitman v. R. R. Co., 2 Har. (Del.) 514:
"This is a power the exercise of which the framers of the Constitution have seen fit to intrust to the chief executive officer of the state alone."
So it is in Colorado, 9 Colo. 642, 21 P. 477. There the court held the power under their Constitution "rested entirely in the judgment of the executive." Again in 35 P. 531, the Colorado court held relative to the Governor:
"He alone is to determine when there is an extraordinary occasion for convening the Legislature."
In New York, People v. Rice, 65 How. 245, 20 N.Y. S. 296, that court, treating with their section 4, article 4 of the Constitution, said:
"This article gave the Governor power to convene the Legislature in extraordinary session, and from the very nature of the provision, he must be the judge as to what constitutes the extraordinary occasion."
So it was in Rhode Island. In re Legislature Adjournment,18 R.I. 830, 27 A. 327.
And so in Wisconsin. State v. Farwell, 3 Pin. 439.
The analogy is the same with the federal government.
No case has been called to our attention and we have been unable to find any where in the history of our government any Legislature had inherent authority to convene itself.
It is urged that they have the right to convene themselves. It might just as reasonably be said that men possessing the qualifications of grand jurors could assemble, organize a grand jury and return indictments, without being called together as provided by law.
Certainly the Constitution could be amended so as to provide for the power and duty of the Legislature to convene itself. Has this been done?
Defendants in error urge that Initiative Petition No. 79 was a constitutional amendment, known as article 8a, Bobbs-Merrill Supp. p. 19, wherein same is published as an amendment to the Constitution.
It cannot be a constitutional amendment, for by the very text of the document, under *Page 278 paragraph (F), it says: "The purpose of this Act is to complete the vitalization of article 8, of the Constitution, and render the same effective." Note the word "Act" — note the provision for vitalization. Then can it be said that this is but a statute, if anything? Not so. It was not submitted as a constitutional amendment, and certainly cannot be considered as such. If it be a statute, it is in violation of the Constitution of this state, for the Constitution, by article 5, section 27, provided:
"The Legislature shall hold regular biennial sessions as herein provided, but this shall not prevent the calling of a special session of the Legislature by the Governor."
Article 6, section 7, provides:
"The Governor shall have power to convoke the Legislature, or the Senate only, on extraordinary occasions."
So the Constitution having invested the power in the Governor alone to convene the Legislature on extraordinary occasions, the Governor can only be divested of that power by a constitutional amendment.
It is elementary that when the constitutional mandate says one thing and a statute says a directly opposite or contrary thing, the Constitution must be adhered to and the statute must fall.
All the foregoing has been said upon the theory, solely for the sake of presentation, that the so-called "79 Act" was properly submitted to the sovereign citizens of the state of Oklahoma. "79" purported to be an initiative measure. Article 5, section 3, of the Constitution says in part:
"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."
It is the record that neither the Legislature nor the then Governor referred 79 to the people at the election of October 2, 1923. The called special election of that date was for the express purpose of other matters, to wit: State Question No. 121, relative to Workmen's Compensation Act; State Question No. 122, a proposed constitutional amendment relative to women's right to hold state offices; State Question No. 123, a proposed constitutional amendment known as the Soldiers' Bonus; State Question No. 124, a constitutional amendment known as the $15 per capita school aid, carried, but declared noneffective by the Supreme Court, September 9, 1924; State Question No. 125, a constitutional amendment relating to the depositors' guaranty fund.
As heretofore stated, Petition No. 79, was not submitted by the Governor nor by the Legislature, the same being State Question No. 119, Initiative Petition No. 79, which we now have before us.
Article 5, section 3, provides in part:
"The Legislature shall make suitable provision for carrying into effect the provisions of this article."
This language shows that the same is not self-executing.
See Atwater v. Hassett, 27 Okla. 292, 111 P. 802, wherein the opinion shows that the Governor submitted the amendment. It was held by syllabus 3 that the Constitution having expressly provided that the Legislature shall enact laws "for carrying into effect provisions relating to the initiative and referendum," courts will not revise such discretionary powers. The opinion says:
"It has been time and again held by this court that the initiative and referendum provisions as contained in the Constitution of this state were not self-executing. Ex parte Wagner, 21 Okla. 33, 95 P. 435; Norris et al. v. Cross,25 Okla. 287, 105 P. 1000; Threadgill v. Cross, 26 Okla. 403,109 P. 558; In re Initiative State Question No. 10,26 Okla. 554, 110 P. 647."
And so subsequently the Legislature did provide by section 6653, Compiled Oklahoma Statutes, 1921, Session Laws 1916, the act approved by Honorable R. L. Williams, then Governor, author of Atwater v. Hassett:
"Whenever any measure shall be initiated by the people in the manner provided by law, or whenever the referendum shall be demanded against any measure passed by the Legislature, same shall be submitted to the people for their approval or rejection at the next regular election: Provided, the Governor shall have power, in his discretion, to call a special election to vote upon such questions, or to designate the mandatory primary election as a special election for such purpose."
The proviso is not here applicable, for the October 2, 1923, special election was not a mandatory primary election, nor was that election called by the Governor to vote upon Initiative Petition No. 79. Consequently 79 was not properly submitted to the people as a statute.
This act, by providing that the Governor may designate the mandatory primary election as a special election for such purpose, or call a special election, conclusively shows that the Legislature did not consider *Page 279 a primary election or special election held throughout the state as a regular election, and it was therefore necessary, before these measures could be voted on at such election that same be submitted thereat by the Governor.
It is insisted by the respondents that, as the Constitution provides (section 3, article 5):
"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 the express purpose of making such reference."
It is further provided in said section:
"Petitions and orders for the initiative and 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."
It appears that Hon. J. C. Walton, on August 13, 1923, submitted to the people of the state, by proclamation of that date, certain measures to be voted upon, at a special election, on October 2, 1923. After this proclamation had been issued signatures to Initiative Petition No. 79 were filed with the Secretary of State. The Governor did not submit the question as contained in No. 79 at the said special election to be held on the other matters contained and set forth in his proclamation theretofore issued.
The right of the Governor to call or refuse to call an election, or submit or refuse to submit both initiative and referendum measures, has been many times construed by the executive department of this state. Such interpretation has been long conceded to be the law as to the time and manner and when the initiative and referendum petitions go, under the Constitution and statutes of this state, to the people. For example:
Initiative Petition No. 92 was filed April 8, 1925, and was submitted by the Hon. M. E. Trapp, Governor, to the voters of this state at the primary election held August 3, 1926.
Referendum Petition No. 47 was filed April 17, 1925, but was not voted on at the primary election held throughout the state, August, 1926, but its submission was ordered by the Governor at the general election, November 2, 1926.
Referendum Petition No. 49 was filed April 7, 1925, and was not submitted by the Hon. M. E. Trapp at the primary election held on August 3, 1926, but was submitted by the Governor to the electors to be voted on November 2, 1926.
Initiative Petition No. 89 was filed May 28, 1925, and the same was not submitted at an election held throughout the state which occurred on August 3, 1926, but was submitted at an election held November 2, 1926.
Initiative Petition No. 90 was filed with the Secretary of State on May 28, 1926, and the same was not submitted at an election held throughout the state which occurred on August 3, 1926, but was submitted at the election held November 2, 1926.
Initiative Petition No. 50 was filed on April 24, 1924, and the same was not submitted by the Hon. M. E. Trapp at the primary election held throughout the state on August 3, 1926, but was submitted at the election November 2, 1926.
Referendum Petition No. 51 was filed on April 8, 1925, in the office of the Secretary of State and election was not held thereon at the primary election held throughout the state on August 3, 1926, but the same was submitted at an election held on November 2, 1926.
Referendum Petition No. 52 was filed April 9, 1925, and the same was not submitted at the election held throughout the state on August 3, 1926, but the same was submitted on November 2, 1926.
This clearly shows that the executive construction of the provisions of the Constitution and laws of the state has, in this manner, been exercised so as to empower the Governor to call an election on the measures initiated as set out in the Constitution as vitalized by the acts of the Legislature.
Initiated Question No. 79 was never submitted by the Governor of Oklahoma to the electors of the state at an election held on October 2, 1923.
The Hon. J. C. Walton on October 3, 1923, called a special election on No. 79 to be held December 6, 1923. This election was never held.
Having reached this conclusion, it follows that the petition for rehearing should be denied, and it is so ordered. *Page 280