(dissenting).
For reasons hereafter stated, I am unable to agree with the conclusion reached in the majority opinion.
The question posed by this proceeding is whether power and authority rests in the Governor to call a special election on an initiated measure where the date of such election falls on the same date of a so-called general election.
If the answer to the mentioned question is “yes”, then Initiated Petition No. 271, hereafter referred to as “measure”, was adopted. This is true because 335,045 affirmative votes and only 237,287 negative votes were cast on the measure.
This question has never heretofore been considered by this Court. In fact, it appears that no appellate court has had oc7 casion to rule therein.
In my opinion the answer to the question must be found in Art. V, Sec. Ill of *837the Oklahoma Constitution. The relevant portions of the cited section reads thusly:
“ * * * All elections on measures referred to the people of the State shall be had at the next election held throughout the State, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. 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. Any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise.” (Emphasis supplied.)
It is made clear in the above quoted matter that power and authority rests in the Governor to call a special election on an initiated measure. The majority concludes that such power extends only to calling a special election on such a measure on any date except that upon which a general election is held. The basis for this conclusion appears to be that (a) Art. V, Sec. Ill, is not self-executing and that it was therefore necessary for the Legislature to vitalize it; that (b) legislation vitalizing the constitutional provisions makes clear that a special election cannot be held on date of a general election; that (c) a majority of jurisdictions hold that a special election cannot be held on date of general election; that (d) such has been the administrative construction of Art. V, Sec. Ill; that (e) to otherwise construe said section would work to the detriment of the public.
I agree that the framers of the Constitution intended that the Legislature enact legislation which would implement the mentioned section by, in effect, supplying details that would make it workable, but, in my opinion, did not intend that such legislation run counter to the provisions of the section and nullify plain and specific provisions of same. At p. 205, § 70, 16 C.J.S. Constitutional Law it is said that “The legislature may, however, enact a statute for the purpose of putting in force a proi vision of the constitution, and under- certain circumstances and in the absence of constitutional restriction, it may enact a staL ute which aids or amplifies a constitutional provision, and may by enactment add a condition to a constitutional provision, provided such enactment does not violate the constitution.” ,. .
In the second paragraph of the syllabus to In re House Bill No. 145, 205 Okl. 364, 237 P.2d 624, it was -said that “The authority of the Legislature extends ' to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith.”
In keeping with the pronouncements that are above alluded to, the authorities’ hold that it is beyond the power of the Legislature to usurp the constitutional powers of the Executive. At p. 887, § 187, 11 Am.Jur;. Constitutional Law it is said that “Another fundamental rule is that the legislature may not usurp the constitutional powers of the executive department by interference with the functions conferred on that department by organic law.” The thought expressed in the last quotation is stated thusly at p. 545, § 130, 16 C.J.S. Constitutional Law:
“In accordance with constitutional provisions separating departments of government, the legislature cannot interfere with, or exercise any powers properly belonging to, the executive department. Thus, the legislature cannot relieve or preclude any executive officer from the performance of a duty enjoined on him by the constitution, or, as otherwise expressed, it cannot take away from a constitutional officer the powers or duties given him by the constitution * * (Emphasis supplied.)
It was held in St. Louis-San Francisco Ry. Co. v. State, Okl., 268 P2d 845, 850, that the Corporation Commission “is irrevocably vested with the power and authority subject to review.on appeal to fix *838rates, charges and classifications of traffic for transportation and transmission companies, which vested powers are subject to regulations by law; that the legislature is impotent by legislation to deprive the Commission from the exercise of such enumerated power but may, by general law, authorize the mode, method and procedure governing their enforcement”. Since Sec. 3, supra, grants the Governor power and authority to call a special election, the Legislature “is impotent” to enact legislation curtailing the power, therefore enact legislation providing that the Governor is free to exercise such power except when the special election coincides with a general election.
The answer to the problem posed by this proceeding, must be found in Sec. 3, supra, and cannot properly be based in whole or in part upon statutes that construe the pro-. visions thereof granting to the Governor power and authority to call a special election for the purpose of submitting to vote an initiated measure.
In construing Sec. 3, supra, one should keep in mind the well-established rule that initiative measures will be liberally construed and will not be struck down except upon a clear showing that the measure is unconstitutional. At p. 70, § 14, 16 C.J.S. Constitutional Law, this is said:
“Initiative and referendum provisions should be liberally construed; and any doubt should be resolved in favor of the exercise of this right by the people. * * * The exercise by the people of the power thus reserved will not be interfered with except on a clear showing of a violation of the law, * * * ”.
See also 28 Am.Jur. Initiative, Referendum and Recall, § 6, p. 439.
In McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787, 788, this was said:
“The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. As said in Gage v. Jordan (1944), 23 Cal.2d 794, 799, 147 P.2d 387, 390, ‘All doubt as to the construction of pertinent provisions is to be resolved in favor of the initiative and such legislation is to be given the same liberal construction as that afforded election statutes generally (citations)’ * * *".
If the above mentioned rules are applied in the instant case, the will of the people as expressed by the vote in the measure will not be struck down.
The rule is followed in many jurisdictions that a special election is one which must be specifically called and that takes place at a time different from the general election. In other jurisdictions it is held that an election to vote on some question or proposition is a special election, notwithstanding the fact that it is held on the same day as a general election. See 29 C.J.S. Elections § lc, p. 14, and 18 Am.Jur. Elections, § 248, p. 34S, and cases cited at p. 1402 of annotated notes beginning at p. 1382, 131 A.L.R.
Under Art. Ill, Sec. S, Okla.Const., a mandatory duty rests upon the Legislature to provide for “a mandatory primary system”, and for many years the Legislature has carried out the mandate by providing for a state-wide primary election or elections on stated dates. This Court, notwithstanding that a primary is not a special election within the rule first mentioned in the foregoing paragraph, has held that when by directive of the Governor, an initiated measure is submitted at a primary election it will be considered as having been submitted at a special election and will be deemed to have passed if a majority of those voting thereon vote affirmatively. See State ex rel. Babb, Co. Atty. v. Mathews et al., 134 Okl. 288, 273 P. 352, and State ex rel. Carrier et al. v. State Election Board et al., Okl., 318 P.2d 422, 425.
The statement in the last cited case to the effect that the Governor may call a special election on an initiated measure on any date except date of a general election is dictum. Such is true because the Gov*839ernor had not there, as here, called a special election. The issue presented in the Carrier case was whether a measure voted upon at a general election should be considered as having been enacted where a majority of those voting at the election did not cast an affirmative vote thereon.
I do not consider that the 1946 opinion of the Attorney General has any bearing upon the issue before us. First, it is settled law that so-called administrative construction will only be considered where the provision under consideration is ambiguous. As I read Sec. 3, supra, it is clear that the Governor, in his discretion, may by appropriate proclamation submit an initiated measure on any date. Second, administrative construction will only be noticed where .uniform and consistent. In the instant case the Attorney General construed Sec. 3 one way and the Governor another.
I am not persuaded by argument that it would not be to the best interest of the people to hold that the Governor can call a special election on date of a general election, nor by argument that if he so acts it is superfluous.
In the instant case the proclamation of the Governor calling a special election on the measure was given wide and extended coverage by newspapers, radio and television. The coverage was such that the vast majority of those voting at the elections were cognizant of the Governor's action; therefore, his action was not superfluous. For said reason it cannot be seriously urged that any considerable number of voters thought that the matter of their abstaining from voting thereon was equivalent to registering a negative vote. I add, that the number of “yes” votes was such as to demonstrate that a great number of persons would have had to have been misled in order to change the outcome of the election.
It is a matter of common knowledge that as a general rule more people vote at a general election than at a primary election. At a general election a voter is not bound to observe party lines and locally independents and members of parties other than the two major parties are privileged to vote, which is not true of our primaries. Therefore, a more representative vote will, as a rule, be had at a general election than at a primary election. We entertain no doubt that a greater number of persons appeared at the polls on November 6, 1962, than would have appeared at a special election held on day of a primary election or some day that did not coincide with date of the general election.
I feel no tenable argument, legal or equitable, can support the theory that the Governor can place this measure on a primary ballot at a special election and deny him this same privilege at a general election.
It is patent that from a practical standpoint, submission of the measure at the November 6, 1962, election instead of at a prior special election (1) saved the State in excess of $100,000.00; (2) was a convenience to the voters; and (3) resulted in a greater number of voters appearing at the polls, which resulted in a more representative vote.
Any suggestion that a decision herein favorable to respondents would place the Governor in a position to discriminate is not well taken. As a practical proposition, he unquestionably has such power. This is true because it is within his discretion to submit an initiated measure to a vote at a special election or remain silent and thereby cause it to be submitted at the next general election. And if two or more measures are ready for submission, he may, in his discretion, submit one at a special election and by inaction cause the other to be submitted at a general election. In either of the mentioned instances, he has the power to discriminate.
The presumption is indulged that a public official will do his duty and will act in the interest of the public. Such must be the conviction of the people, otherwise Sec. 3 no doubt would long ago have been amended.
*840' If it is unwholesome for the Governor to submit an initiated measure to a vote on date of a general election, then why is it not unwholesome for him to submit such a measure to a vote on a date that does not coincide with date of a general election, and why is it not unwholesome for him to possess and exercise veto power over legislation. To my way of thinking, the people did not think such to be the case and therefore, under plain provisions of the Constitution, granted such powers to the Governor.
History bearing upon apportionment of our Legislature convinces me that the Governor acted wisely and in the best interest of the people in submitting the measure to a vote at the general' election. I refer to the fact that (1) the Legislature has declined to apportion itself in accordance with the Constitution; that (2) an action is presently pending in the local Federal Court that has for its purpose apportionment of the Legislature; that (3) litiga-tions conducted by those contesting (respondents) the validity of the initiated petition was only concluded shortly before the general election; therefore, the calling of a special election prior to the general election would not have been feasible and would have imposed upon the voters; that (4) as aforesaid, a more representative vote was had on the measure at the special election held on date of the general election than would have resulted if a special election had been called prior thereto; that (5) by proceeding as the Governor did, there was a saving to the State, and the convenience of the voters was served.
To hold that the Governor can be denied his right to call a special,election on a general election day may invite calculated delaying tactics by those opposing the measure which will force a vote thereon on date of general election and thusly place them in a position where they can contend, as here, that the measure failed notwithstanding a majority of the votes cast thereon Were in the affirmative. Thusly, matters of grave public concern, such as the measure under consideration, can be made to depend upon the timing of those opposed to the measure. It is apparent that the framers of the Constitution had no such intent or desire — they did not intend that the number of votes necessary to adopt an initiated measure depend upon legal maneuvers.
For reasons stated I respectfully dissent from the Majority opinion.