Allen v. Burkhart

JACKSON, Justice

(concurring specially)-

For convenience I quote from Art. 5, Sec. 3, Okla.Const, and divide its provisions into separate subject matter, as follows:

(a) * * * “All elections on measures referred to the people of the State shall be had at the next election held throughout the State,
(b) “except when the * * * Governor shall order a special election for the express purpose of making such reference.
(c) “Any measure referred to the people by the initiative shall take effect and be in force when it shall have been approved by a majority of the votes cast in such election.”

This court has consistently held that in order for an initiated constitutional amendment to be adopted at a general election it (the amendment) must have been approved by a majority of the votes cast in such election. In re Initiative Petition No. 2 (1910), 26 Okl. 548, 109 P. 823; State ex rel. Hayman et al. v. State Election Board (1937), 181 Okl. 622, 75 P.2d 861; and State ex rel. Carrier v. State Election Board (1957), Okl., 318 P.2d 422. I also believe that we have consistently held that when a measure is submitted at a special election that only an affirmative vote of the majority of those voting for the measure is required for its adoption.

I have had some difficulty in trying to determine why there is or should be a different quantum of an affirmative vote to effect adoption of an initiated measure submitted at a general election from that which governs at a special election. 1 *831have reached the conclusion that our constitution and statutes make no difference in the affirmative vote required whether the amendment be submitted at a general or special election. In either event subdivision (c), supra, of Art. 5, Sec. 3, requires that the measure “shall take effect and be in force when it shall have been approved by a majority of the votes cast in such election.”

If an amendment or measure is submitted at a special election and the proposed amendment is the sole issue or matter to be considered, then a majority of those voting for the measure will also constitute a majority of the votes cast in such election, and the amendment will have been adopted. Whether two or more constitutional amendments may be submitted at the same special election and be adopted by the simple majority of those voting on any one of the amendments without considering the votes cast for or against the others is not an issue in this case. But see Art. 24, Sec. 1, Okla.Const.

I have been unable to find a clear statement in any of our former decisions as to why “a majority of the votes cast in such election” is required. In Atwater v. Hassett et al. (1910), 27 Okl. 292, 111 P. 802, Justice R. L. Williams (a member of the Constitutional Convention) quoted extensively from an early Alabama case, May & Thomas Hardware Co. v. Mayor, et al. of Birmingham, 123 Ala. 306, 26 So. 537. The Alabama Constitution, like ours, required a majority of the votes cast in the election. The Alabama Court seems to say that the framers of the Alabama Constitution wanted the affirmative assent or consent of all those attending and participating in the election in order to adopt an amendment to their constitution. Since the framers of our constitution have used the same language as was used by the framers of the Alabama Constitution the language from the Alabama case, as quoted by Justice Williams, may be helpful here.

“ * * * This proposition takes no account of the consideration that, under any possible form of submitting a proposed amendment to the people, every elector who votes for a state or county office at the election must, through the operation of the constitution itself in effect, vote for or against the amendment. Article 17, § 1, provides, as we have seen, that an amendment must receive ‘a majority of all the qualified electors of the state who vote at’ the general election to which it is submitted — a majority, not of those who vote on the amendment, but of those who deposit ballots for any purpose. Hence it is that, if an elector votes for a state or county office, he necessarily votes on the amendment, for, though his ballot contains no reference to the amendment, he is counted against it. So that by the terms of the Constitution itself he is deprived of the right to refrain from voting on an amendment if he votes for any state or county office * * *."

In the Governor’s brief it is insisted that the case of State ex rel. Babb v. Mathews (1929), 134 Okl. 288, 292, 273 P. 352, is authority for the proposition that where an initiative measure is submitted by the Governor and a majority of the votes cast upon the question submitted is in favor of its adoption, it is only necessary that such measure receive a majority of all votes cast upon the specified measure in order to be legally adopted. Obviously the case does so hold. If the holding in that case can be justified it is for the reason that the statute, 34 O.S.1961, Sec. 25, authorizes the Governor “to designate the mandatory primary election as a special election”, and for the further reason that a primary election, in the true sense, is not an election. State ex rel. Williamson v. Carter (1936), 177 Okl. 382, 59 P.2d 948. In that case we quoted from State ex rel. Hatfield v. Carrington, 194 Iowa 785, 190 N.W. 390, to the effect that a primary election is not an election within the meaning of the constitution nor un*832•der the common law, but is purely a legislative creation enacted solely for the benefit ■of orderly procedure in the administration ■of political parties, whereby each may select candidates to be submitted to the electors at the general election. We concluded in the Williamson case that the purpose of the constitutional provision requiring initiated measures to be submitted at the next election held throughout the State was to submit initiated measures “at a time when the people of all political parties were permitted to congregate at a particular time and place in the orderly •conduct of their government”. We held that the words “next election held throughout the State”, as used in Art. S, Sec. 3, supra, meant the next general election as used in Art. 24, Sec. 1, Okla.Const. See also Updegraff v. Gary (1956), Okl., 298 P.2d 404, and cases cited and discussed therein.

If we now hold under State ex rel. Babb v. Mathews that an initiated constitutional amendment may be adopted by a majority •of those voting for the measure at a general election, or at a purported special election conducted in connection therewith, then we will have almost completely eroded away the proviso which requires an affirmative vote of those voting at the election, and will have overrruled In re Initiative Petition No. 2; State ex rel. Hayman, and State ex rel. Carrier v. State Election Board, supra, on the point at issue.

It is said in effect in argument that while Art. 5, Sec. 3, requires initiated constitutional amendments to be submitted at the next election held throughout the State, the exception to that proviso authorizes the Governor to order a special election for the express purpose of making such reference. The exception actually sought is not as to the time of holding the election, but an exception to the constitutional provision which requires that an initiative measure to be adopted must be approved by a majority of the votes cast in such election. I have been unable to determine how we may nullify this requirement of the constitution by the simple 'expe-' dient of calling a general election a “special election”. I agree that this requirement in our constitution requiring a majority of the votes cast in such election to adopt an initiated measure is burdensome, expensive, and encourages strife and litigation among our people. In light of these considerations I doubt if it is worth what it is costing. However, it is not the function of courts to make constitutional law but to interpret and declare what they see.

Believing as I do that the Governor is not authorized to convert a general election into a special election for submission of an initiated measure, or to take an initiated measure out of “the next election held throughout the state”, I must and do agree with the majority of my associates that State Question No. 408 was not adopted on November 6, 1962, and that the writ should be granted.

I am authorized to say that WELCH, J., concurs in the views herein expressed.