with whom COLBERT, V.C.J. and WATT, J., join, dissenting
1 I must dissent to the majority's order. Although I do not believe the ballot title for Initiative Petition 896 violates the single sub-jeet rule found in Article 24, § 1, I cannot reach the same conclusion as to the Equal Protection Clause.
2 The proposal limits the applicability of the amendment to those counties having a population of 50,000 or more persons according to the most recent federal decennial census. These counties 1 would have the opportunity to determine on an individual county basis by a vote of the public to approve the provisions of this amendment. This process is identical to the option counties have with the provisions for liquor by the drink, previously adopted by popular vote. See, Okla. Const. art. 28, § 4. The difference however is *1278that all counties, regardless of an arbitrary population number have the fundamental right to vote to allow or disallow the provisions of liquor by the drink. This constitutional amendment, if approved by popular vote by the citizens of the entire state, provides no opportunity for the voters in counties having populations less than 50,000 to exercise their right to vote to participate.
T3 Oklahoma presently has 62 counties who would not have the fundamental right to vote on the issue. Each of the 15 counties above the 50,000 limitation has approved liquor by the drink. Statewide, 51 counties have approved liquor by the drink,2 therefore 36 counties that have approved liquor by the drink would have no opportunity to vote on the provisions to allow wine sales in grocery stores.
4 Although this Court on many occasions has upheld population based criteria in determining whether a law was a special or general law, the test for constitutionality is not numerical, but rather whether the classification is clearly capricious, arbitrary, and wholly unrelated to the Act. See Burks v. Walker, 1909 OK 317, ¶23, 109 P. 544, 549; City of Enid v. Public Employees Relations Board, 2006 OK 16, ¶ 15, 133 P.3d 281, 287; Justice Kauger's concurring opimion in Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, 148 P.3d 842.
T5 The rational basis for the population limitation given by the proponents is the impact on law enforcement agencies in the enforcement of the law on counties having fewer than 50,000 people. The argument being that these "smaller" counties would be unable to effectively enforce the grocery store sales. Shouldn't the individual county be allowed to consider such an impact as one aspect of approval or rejection of grocery store wine sales? The Equal Protection Clause of the United States Constitution states "[njo State shall ... deny to any person within its jurisdiction the equal protection of the laws."3 The Equal Protection Clause does not forbid classifications, but keeps governmental decision makers from treating differently persons who are in all relevant respects alike.4 Each of Oklahoma's 77 counties will have the right to vote on this question and the amendment to the Constitution. Each County should be treated equally and have the right to vote on the applicability of these amendments, not just the 15 largest counties in the State.
1 6 Where the impact on local law enforeement is a concern, who better to determine the impact than the citizens themselves by going to the polls and exercising their fundamental right to vote.
1 7 I respectfully dissent.
. Counties affected include: Oklahoma, Tulsa, Cleveland, Comanche, Canadian, Rogers, Payne, Wagoner, Muskogee, Creek, Pottawatomie, Garfield, Grady, Washington and LeFlore.
. ABLE Commission as of 1-25-2010
. U.S. Const. amend. XIV, § 1.
. Coalition for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir.2008).