I concur in the general conclusion reached by a majority of the court, but am unable to concur in the reasoning advanced relating to the inapplicability of sections 3382, 3383, and 3384 of the Revised Laws of 1910, and section 1, art. 24, of the Constitution. In my judgment said sections, supra, apply with the same force to section 1, art. 24, of the Constitution that they do to articles 5 and 18. The main reason assigned by the court why said sections do not apply to section 1, art. 24, of the Constitution is that the title to said act is limited to articles 5 and 18, and makes no reference to article 24. Considering that article 24 deals with the amendments to the Constitution by initiation of propositions in the Legislature, it would appear that although the title to the act, by express terms, undertook to limit the act to article 5 of he Constitution, yet such title is broad enough to cover the body of the act, and in my opinion the context applies with equal force to article 24. It is a well-settled principle that the context of an act must govern, irrespective of the title, except where the Legislature wholly fails to comply *Page 60 with constitutional provisions in not providing a title covering the subject-matter under consideration; but it must be admitted that the title to the act in question is sufficiently broad to meet the constitutional requirements in this respect. It is only when the meaning of the body of the act is doubtful that reference may be had to the title to remove the ambiguity, or to supply an omission. It is a well-settled principle of law that, if the body of the act is free from ambiguity, the meaning expressed must be given effect, without resort to the title. In 36 Cyc. p. 1134, the rule is laid down as follows:
"Ordinarily, where the body of a statute is free from ambiguity, the meaning expressed therein must be given effect, without resort to the title, and in no event should the language of the title be permitted to control expressions in the enacting clause in conflict therewith,"
— citing a long list of cases, among which are Cornell v.Coyne, 192 U.S. 418, 24 Sup. Ct. 383, 48 L.Ed. 504; Pattersonv. The Eudora, 190 U.S. 169, 23 Sup. Ct. 821, 47 L.Ed. 1002;Territory v. Hopkins, 9 Okla. 133, 59 P. 976.
This court, in one or two cases, has held in effect that said act applies to article 24, as well as to the other articles referred to in the opinion of a majority of the court. In the case of Trapp, Auditor, v. Wells Fargo Exp. Co., 22 Okla. 377,97 P. 1003, Justice Williams, delivering the opinion of the court, said:
"It is evidently the duty of the Secretary of State to certify the title and text of each measure presented by initiative petition, referendum petition, or by theLegislature, including constitutional amendments, to the State Printer, which shall be printed upon the official ballots as contracted for by the State Printing Board. * * * All of this machinery belongs to the branch of the executive department of the state, and by section 1, art. 24, of the Constitution,supra, it is the duty of the Secretary of State to see to it that the State Printer and the State Election Board perform their duty with reference to the submission of measures by the initiative and referendum, and by the Legislature, including constitutional amendments, to the people for their approval or rejection." (Italics ours.) *Page 61
Again, in the case of Atwater v. Hassett et al.,27 Okla. 292, 111 P. 802, the court, speaking through Mr. Justice Williams, says:
"Section 10, art. 1, c. 44, Sess. Laws 1907-08, does not apply to said submission under the initiative and referendum."
Evidently he was speaking of the initiative and referendum as contained in articles 5 and 18 of the Constitution. If section 10 (Rev. Laws 1910, sec. 3381) of article 1 of the act of the Legislature of 1907-08 does not apply to the initiative and referendum, under articles 5 and 18 of the Constitution, and then if, as held by this court in the opinion by a majority of the court, said act does not apply to article 24 of the Constitution, I am at a loss to understand to what article or provision of the Constitution section 10 of the act does apply, as these three articles cover the subject-matter contained in said act of the Legislature. If the sections of the statute,supra, do not apply to and have no reference to article 24 of the Constitution by reason of the fact that its title limits said act to articles 5 and 18 of the Constitution, then it necessarily follows that no section or provision of said act would apply to article 24. It has in effect been held by this court in a number of cases that provisions of the Constitution similar to article 24 are not self-executing, and to hold that no part of the act of 1907-08 applies and that the act of 1910 referred to in the opinion of the court does not apply, then there is no law vitalizing article 24 of the Constitution. In other words, there is no authority whereby the Secretary of State or the Election Board could have placed before the voters the proposition involved herein. In my judgment the context of sections of 3382, 3383, and 3384 shows that they apply with the same force to article 24 of the Constitution that they do to articles 5 and 18. The latter part of section 3382 provides:
"Where the Legislature submits any other question, the argument for the negative shall be prepared by a committee representing the members in the Legislature who voted against the substance of the measure." *Page 62
I think this clearly shows that, where any proposition is submitted by the Legislature, the minority members voting against the submission of said proposition should be represented by a committee in presenting the argument to the people against the adopting of such proposed amendment or matter submitted for their adoption or rejection. It is clear to my mind that this language has no reference to a petition initiated by the people, for in such case the Legislature has nothing to do with the submission to the people; but it has reference only to a proposition initiated by the Legislature and submitted to the people for their adoption or rejection. It is equally clear that section 3384 is broad enough to cover all propositions submitted to a vote of the people, whether initiated by the people or proposed by the Legislature. The language, in part, is:
"Before the mandatory primary election held prior to each general election held throughout the state, at which anyproposed law, part of an act, or amendment to the Constitutionis to be submitted to the people, the Secretary of State shall forward or cause to be forwarded to the county clerk of each county in this state a sufficient number of the pamphlets hereinafter described to supply each voter of his county, and an additional number equal to ten per cent. of such number of votes. * * *" (Italics ours.)
It certainly cannot be contended that this language is not broad enough to cover amendments initiated by the people, and which they cause to be submitted to themselves for adoption or rejection, together with all propositions submitted by the Legislature. I think the safe and sound rule is to hold that, notwithstanding sections 3382, 3383, and 3384, supra, apply to article 24 of the Constitution and the amendment here involved, yet said provisions of the law are merely directory, and a failure to comply with same should not have the effect to defeat the voice of the people after they have spoken, and especially in the absence of any allegation that any fraud was practiced, or any one was misled by a noncompliance with said law, or that the result of said election would have been different had said law been complied with. No doubt one purpose of the law as contained in sections 3382, 3383, and 3384 *Page 63 is that the people may be informed upon the question submitted to them for their consideration, yet it would also appear from the' provisions referred to that another purpose, if not the primary purpose, was to give those who have charge of such matters, whether initiated by the people or proposed by the Legislature, and those who are opposing such proposition, an opportunity to set forth their view as to the merits and demerits of any proposed amendment. Entertaining this view, I see no reason why the parties interested could not waive such argument. Certainly if no arguments were prepared, the Secretary of State and the Election Board could not cause the same to be distributed to the voters. In the absence of argument, if a proposition is submitted fairly to the voters for their adoption or rejection, whether it originates with the people, or whether it is proposed and submitted by the Legislature, and if the people have had a fair opportunity to express their voice, and have in fact given their expression by their vote, and where there is no allegation of fraud or contention that any fraud was practiced or any undue advantage taken, or that the people were in any way misled by failure of those in charge to perform their duty in submitting arguments, and where it is not alleged that the result of said election would have been different had those in charge of said matter performed their duty and complied with the provisions of the law under consideration, their verdict expressed at the polls should not be set aside. Town of Grove v. Haskell,24 Okla. 707, 104 P. 56; McCarty v. Cain et al., 27 Okla. 82,110 P. 653; Martin v. McGarr, 27 Okla. 653, 117 P. 323, 38 L. R. A. (N. S.) 1007.
"The courts have held that the voice of the people is not to be rejected for a defect or even a want of notice, if they have, in truth, been called upon and have spoken. In the present case, whether there were notices or not, there was an election, and the people of the county voted, and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise." (McCrary on Elections, sec. 143.) *Page 64
Quoting Cooley's Constitutional Limitations (7th Ed.) p. 929, discussing the subject of conduct of elections, he states:
"And it was said in the same case that any irregularity in conducting an election which does not deprive a legal elector of his vote, or admit a disqualified person to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election."
In the case of Town of Grove v. Haskell, Governor, et al.,24 Okla. 707, 104 P. 56, the court, through Justice Dunn, quoting from the Supreme Court of Kansas in the case of Peabodyv. Burch et al., 75 Kan. 543, 89 P. 1016, 12 Ann. Cas. 719, said:
"Although mandatory provisions of the statute are disobeyed in the preparation of the official ballot, the will of the voters expressed by means thereof cannot, on that account, be disregarded."
There the court also quotes from Jones v. State ex rel.Wilson, 153 Ind. 440, 55 N.E. 229, and Russell v. McDowell,83 Cal. 70, 23 P. 183.
I think the rule as laid down above is peculiarly applicable to the case at bar, and should be adopted. I have given much thought and consideration to the matter under discussion, and I have had no little difficulty in reaching a conclusion which, in my judgment, is in harmony with law, reason, and justice. The court should not set aside the will of the people as expressed at the polls, unless it is clear that some fundamental and mandatory provision of the law or the Constitution has been disregarded. I am of the opinion that the provisions of the statute referred to herein are merely directory, and, inasmuch as there is no contention that there was any fraud practiced, or any one misled by failing to comply with the provisions of the statute, or that the result of said election would have been different had said provisions been strictly complied with, the adoption of the amendment under consideration by the people at the polls should not be disturbed or invalidated. *Page 65