I concur with my brother Associate Justice TURNER in both his reasoning and conclusion upon the proposition that those provisions of the Enabling Act and of the ordinance of the Constitutional Convention accepting the terms of the Enabling Act which require that the capital of the state shall not be changed from Guthrie prior to the year 1913 are void, for the reason that it was not within the power of Congress to impose such condition upon the state, nor within the power of the state to consent thereto.
I also concur with him in his conclusion that there has been no legal submission of the initiative bill involved in this case by which it was attempted to locate permanently the capital of the state, to create a Board of Capital Commissioners, and to make certain other provisions; but I do not concur in all the reasoning upon which he has reached this latter conclusion. The grounds upon which I concur in this conclusion briefly stated, *Page 263 without amplification, are these: The initiative and referendum provisions of the Constitution, as has been several times held by this court, are not self-executing, and for a procedure for the exercise of these powers reserved to the people we must look to the statutes enacted by subsequent legislation. Section 7 of an act approved April 16, 1908 (Sess. Laws 1907-08, p. 445), provides how the ballot title of each measure to be submitted to the vote of the people shall be formed, and requires that the ballot title shall be printed with the number of the measure on the ballot. Section 10 of the same act provides that where a question is submitted without a competing one, there shall be placed over it a brief catch line, and at the close of the question there shall be added:
("Yes") ( )
Shall it be adopted?
("No") ( )
("Yes") ( )
or Shall it be repealed?
("No") ( )
By the same section, the voters are required to express their choice by placing a cross in the square and to the right of the word expressing their choice. By this method of voting upon any measure, the statute contemplates that each voter shall give one expression upon the proposed measure, which shall be either an expression affirmatively approving the entire measure or disapproving it in its entirety. It neither prescribes nor authorizes a procedure by which a proposed measure may be submitted to be voted upon other than as a whole, or as one proposition. In submitting this bill, which, for convenience, shall be referred to as the "Capital Bill," the question, "Shall it be adopted?" directed by the statute to be put upon the ballot, was not placed upon it, but in lieu thereof, the following questions were asked and placed upon the ballot: *Page 264
Shall the capital of the state of Oklahoma be permanently located as provided in State Question. Initiative Petition No. _____?
("Yes") ( )
("No"). ( )
and Shall the capital of the state be permanently located at:
Oklahoma City Yes. ( )
Shawnee Yes. ( )
Guthrie Yes. ( )
If this constitutes a legal submission of this bill to the voters, then we have, as a result of said proceeding, a law that accomplishes, among other things, the following objects: (1) Locates the permanent capital at Oklahoma City. (2) Creates a State Capital Commission, fixes the term of office of its members and their salaries. (3) Authorizes the purchase or condemnation of land for capital purposes. (4) Appropriates $600,000 for carrying the provisions of the act into effect. Did the procedure followed give to every voter the opportunity by a single expression of his choice or by a single vote to approve or disapprove all the foregoing provisions of the law, as the procedure prescribed and required by the statute would have given him, if it had been followed. This ballot not only failed to give the voter such opportunity, but if it be valid, it authorized him to vote for some of the foregoing provisions and against others. Suppose A. and B. went to the polls to vote upon this measure. A. voted "Yes" upon the first question and quit. He did not vote for the law as it now stands. He voted at most for some of its provisions. That portion of the law which locates the capital at Oklahoma City received no expression from him. B., on the other hand, voted "Yes" upon the first question, and upon the second question voted "Yes" opposite "Shawnee." He did not vote for or against the entire law as it now stands, but for part of it and against part of it. Section 21 of the act of 1908 provides that the procedure therein prescribed is not mandatory, but if substantially followed shall be sufficient, and that clerical and mere technical errors shall be disregarded; but a variation in the procedure which requires two votes upon a proposed proposition in order to adopt it, whereas, *Page 265 the statute provides that one expression shall be made, and which permits a voter to vote for a part and against a part of a proposed law, cannot be said to be a technical or clerical irregularity.
In our opinion a single proposed measure, as this bill, containing several alternative propositions cannot be submitted under the procedure now prescribed by the statutes of this state. This seems to have been the view of those charged with the duty of submitting initiative measures, for the existing statute in the preparation of the ballot was not observed, but the form prescribed by the proposed bill itself was followed. But a measure proposed by an initiative petition can no more prescribe a rule of action prior to the time it is adopted by the people, than a proposed bill in a Legislature prior to the time it receives the sanction of that body. To hold otherwise would render unnecessary any statute prescribing a procedure for the enforcement and application of the initiative provisions of the Constitution, for each proposed initiative measure might provide by its own provisions the method of its submission and all statutes be ignored.
Whether a statute may be legally enacted providing that measures proposed by the initiative or by a referendum may be submitted so as to have an expression of the voters upon the different sections or upon the different provisions of the proposed measure, or whether a statute may be legally enacted prescribing a procedure by which alternative propositions in the same bill may be submitted, as done in this case, is not necessary here to decide, for no such statute now exists.
I am authorized to say that Chief Justice DUNN and Justice WILLIAMS join in this concurrence.