This action was instituted in the district court of Payne county by the state of Oklahoma ex rel. J.J. McNeill, hereinafter referred to as plaintiff, against Joe Long, chairman of the board of commissioners of the city of Cushing, and T.E. Hough, clerk of the city of Cushing, hereinafter referred to as defendants. Plaintiff sought to obtain a writ of mandamus to compel defendants to call an election for the purpose of voting upon a proposed ordinance. granting a franchise to the Interstate Power Company to operate a light and power plant in the city of Cushing. This action was instituted on the theory that a former election held in the city of Cushing, wherein the proposed ordinance was defeated, was void for certain reasons hereinafter set out. The cause was tried to the court, and the relief sought by plaintiff was denied, whereupon an appeal was perfected to this court. While the appeal was pending, J.J. McNeill died. Upon motion of one Clyde Hearn, he was allowed to interplead and prosecute the appeal.
On March 16, 1931, certain citizens of Cushing filed with the city clerk of Cushing an initiative petition requesting that an election be called to vote upon the proposition of granting a light and power franchise. The city clerk referred the matter to the board of city commissioners, who made an order holding the petition insufficient. An original proceeding was filed in this court by the petitioners wherein it was sought to compel the city officials to hold the election. An opinion in that case was promulgated on February 16, 1932; a petition for rehearing was filed on April 19, 1932; the opinion was withdrawn, corrected, refiled, and rehearing was denied. See In re Initiative Petition No. 2 of Cushing, 157 Okla. 54,10 P.2d 271. It was held in that opinion that it was the duty of the city clerk to pass upon the sufficiency of the petition and to report his finding to the chief executive officer of the city, who should, if the petition be sufficient, call the election, upon 30 days' notice. But due to the fact that the city clerk was not a party to that action, the prayer was denied.
It appears that when the opinion of this court in the former case was received by the city officials, the city clerk orally informed the chairman of the board of city commissioners that the petition was sufficient, and on February 24th, the proclamation was issued calling an election to be held on March 8, 1932. Said proclamation was published in the Cushing Citizen, a newspaper of general circulation in said city, on February 25 and March 3, 1932.
On March 8, 1932, an election was held. The election officials certified that 1,189 voters voted in favor of granting the franchise and 1,925 voters voted against granting the franchise, and that there were cast seven mutilated ballots, making a total of 3,121 votes cast. This action was instituted on June 27, 1933, almost 16 months after the date of the election.
It is insisted, first, that the election is void because the same was held while the former action was still pending in this court, or prior to the ruling of this court on the petition for rehearing. Plaintiffs are in no position to raise this issue. Plaintiffs in this case and plaintiffs in the former original action in this court were the proponents of the proposed ordinance granting the franchise. They prevailed in the former action. An examination of the petition for rehearing filed in said original action in this court discloses that no effort was made by the defendants therein (defendants herein) to obtain a reversal of the opinion promulgated. Said defendants agreed with the rules of law announced in the opinion, but sought to have the opinion amended to conform to the facts.
It is next contended that under the provisions of section 5 (a), article 18, of the Constitution, as construed by this court in the case of In re Initiative Petition No. 2, Cushing, supra, it is required that 30 days' notice of the election be given, and since only 13 days' notice was given in the instant case, the election was null and void. In the case of City of Ardmore v. State ex rel. Best, 24 Okla. 862 104 P. 913, it is said:
"In ordering an election in a city of the first class, on a question of whether certain public utility bonds shall be issued, 10 days' notice of such election, by publication of the mayor's proclamation calling the election in a newspaper of general circulation in such city at least 10 days prior to the date of the election, is required (section 1, art. 4, of an act entitled 'An act regulating elections in cities and towns * * *' (Sess. Laws 1909, p. 268, c. 16); but, if the notice be published for a less time than 10 days prior to the election, a court of equity will not, for this reason alone, declare the election void, where it is not shown or alleged that any one failed to vote because of the failure to publish the proclamation for the full statutory period, *Page 411 and where it is conceded that the general voting public had notice of the election and participated therein."
We quote further from the body of the opinion:
"This court, in the case of Town of Grove v. C.N. Haskell et al., 24 Okla. 707, 104 P. 56, wherein a question very similar to the one now under consideration was involved, said:
" 'Counsel for plaintiffs in their petition in no manner aver or charge that any voter failed to attend and vote at the election held by reason of want of notice or knowledge, or that the failure to post the notices in exact conformity with the requirements of the proclamation had any effect whatever upon the result of the election. In the absence of such a showing and averment it is our judgment the correct rule in such cases is that, although the notices may be posted for a time less than that specified, the court will not, for this reason alone, declare the election void, at the suit of a party who participated therein, where it is not also shown that the electors of the county did not participate therein by reason of lack of notice or knowledge, and that a different result would have obtained if the full statutory notice had been given."
In the case of Town of Grove v. Haskell, supra, it is said further:
"Elections are the ultimate expression of the sovereign will. When fairly expressed — that is, free from taint of fraud or charge of improper conduct — it becomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors. All reasonable presumptions as to their regularity will be indulged, and the penalty of disfranchisement will not be visited upon a qualified voter where he is not at fault, except in response to plain mandatory requirement of the statute."
We quote from the body of the opinion in the case of State ex rel. Freeling v. Sullivan, 80 Okla. 81, 194 P. 446:
" 'When a special election is assailed on the ground of lack of compliance with all the statutory requirements in reference to notice, but there is no averment or showing that the electors did not have actual notice or knowledge of the election and failed to participate therein by reason thereof, the same will not be held void on this account.' Town of Grove v. Haskell. Governor, 24 Okla. 717, 104 P. 56; City of Ardmore et al. v. State ex rel. Best, 24 Okla. 862, 104 P. 913; North v. McMahan, 26 Okla. 502, 110 P. 1115; Haskell, Governor, v. Reigel, 26 Okla. 87, 108 P. 367: Lowe et al. v. Consolidated School District No. 97, Blaine County, et al., 79 Okla. 115,191 P. 737; Ratliff et al. v. State ex rel. Woods, County Attorney, 79 Okla. 152, 191 P. 1038."
In the case of Wadsworth v. Neher, 138 Okla. 4, 280 P. 263, it was held:
"In the absence of fraud, an election will not be held invalid on the ground that mandatory provisions of the state election laws have been disobeyed, unless it is expressly declared in the statute that the particular act is essential to the validity of an election or that its omission shall render it void. Elections are the ultimate expression of the sovereign will. When fairly expressed — that is, free from taint of fraud or charge of improper conduct — it becomes the duty of the courts to sustain them, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors."
In the case of McLoughlin et al. v. City of Prescott (Ariz.)6 P.2d 50, it is said:
"We concur in the rule stated by the court in Weisgerber v. Nez Perce County, 33 Idaho, 670, 197 P. 562, 563, as follows: 'However, we are of the opinion that the correct rule, and the one supported by the great weight of authority, may be stated as follows: Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election; but after an election has been held, such statutory requirements are directory, unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void.' See, also. Sizemore v. Board of Com'rs.,36 Idaho 184, 210 P. 137; King v. Independent School Dist., Class A. No. 37, 46 Idaho, 800, 272 P. 507; In re Validation of East Bay Mun. Util. Dist. Water Bonds, 196 Cal. 725, 239 P. 38.
"This, in effect, is the rule announced in Allen v. State, supra, wherein we said: 'Consummated or completed acts we will not annul for reasons that might have possessed merit, if urged at the proper time.' "
It is the contention of plaintiff that these cases are not applicable because they deal with the requirements of the statutes and not with requirements of the Constitution; that each and every one of the provisions of the Constitution should be treated as mandatory *Page 412 without reference to the rules distinguishing between directory and mandatory statutes. The authorities cited to sustain this argument are not in point from a standpoint of facts.
We concede the rule to be that both statutory and constitutional provisions fixing the time and manner of giving notice of elections are mandatory and will be upheld strictly in a direct action instituted before an election. The reason that said provisions are to be construed as directory after an election has been held, is that there has intervened an expression of the sovereign will, and where such will is fairly expressed it becomes the duty of the courts to sustain such expression where it can be done by a liberal construction of the laws relating thereto. The validity of an election depends upon whether or not the electors had actual notice thereof and participated therein and whether or not a failure to comply with the law deprived the electors of an opportunity of voting.
It is urged that certain language used in the case of Associated Industries v. Oklahoma Tax Commission,176 Okla. 120, 55 P.2d 79, is contrary to the determination herein. But the language relied upon is used in the discussion of wholly different issues presented therein and has no application to the decisive question herein. The distinction was clearly noted and pointed out in that opinion, wherein we said:
"Respondents call attention to several cases holding that where an election has been held and the people have voted on a measure, irregularities in said election, where the people have substantially expressed their will, will not defeat said election. Town of Grove v. Haskell, 24 Okla. 707, 104 P. 56; City of Ardmore v. State, 24 Okla. 862, 104 P. 913; Lamb v. Palmer, 79 Okla. 68, 191 P. 184; Ratliff v. State,79 Okla. 152, 191 P. 1038; Ruth v. Oklahoma City, 143 Okla. 62,287 P. 406.
"The distinction between those cases and the case at bar is clearly apparent, in that in those cases there was authority on the part of the officer calling said election to call the same; whereas, in this case the Governor was wholly without authority to submit said initiated measure."
In this case there was authority in the city officials to call the election. If some jurisdictional step had been lacking, obviously the rule announced in the Associated Industries Case would be determinative.
No fraud is alleged or proved in this action. No showing is made that the failure to give the full notice required by law operated in any manner to change the result of the election. An examination of the record discloses that the electorate was well informed as to the date of the election. We quote from the record as follows:
"By Mr. Moore (attorney for plaintiff): There isn't any dispute but what there was a great deal of publicity about this purported election."
It does not appear that any effort was made on behalf of the proponents of the initiated measure to secure a postponement of the election in order that further notice could be given or until the petition for rehearing had been acted upon by this court. Instead, they entered into a spirited campaign upon the issues raised by the initiated measure. A substantial majority of the electors expressed themselves as being opposed to the measure. On June 27, 1933, almost 16 months thereafter, this action was instituted in the district court to require the calling of another election on the ground that the former election was null and void. Under the allegations and proof, the judgment of the trial court was correct. The judgment is affirmed.
McNEILL, C. J., and BAYLESS, BUSBY, and CORN, JJ., concur. RILEY, WELCH, PHELPS, and GIBSON, JJ., dissent.