In this case suit was brought to set aside the order of the Secretary of State suspending the operation of House Bill No. 196, known as the Retail Liquor Law, upon the presentation to him of petitions certified by the county clerks of thirty-nine counties to have been signed by 15 per cent., or over, of the qualified voters of such counties. Thereafter an application was made by Lucy T. McLemore et al. for a writ of supervisory control, in which application it was alleged that the petitions for the referendum filed with the Secretary of State, and upon which he was about to act, were very largely in excess of the number required to authorize him to advise the Governor of the filing of such petitions, and that such petitions were amply and legally sufficient to suspend the above law. This court took the application under consideration, and, assuming all of the allegations in the petition of the applicant, Jack Higgins, to be true, directed that the hearing continue with promptness. At the opening of the hearing the attorneys for Lucy T. McLemore called Jack Higgins to the witness-stand for several preliminary questions, and in answer to such questions he admitted that he had no personal knowledge of the matters of fact stated in his application to the district court for the restraining order issued against the Secretary of State. Since the application for the restraining order against the Secretary of State (sec. 9244, Rev. Codes) is required to contain "the material allegations of the complaint, setting forth the grounds therefor, be made positively and not upon information and belief," the application was without jurisdiction, and hence the order issued thereon was void. However, the district court, allegedly relying upon the questions of law set out in the complaint in subdivisions "m" and "n," wherein the affiant alleged that certain questions of law were therein proper issues relative to the requirements necessary to authorize a judge to issue a restraining order, ordered that the restraining order should stand, and thereupon *Page 94 application was made to this court for a further hearing upon the application for writ of supervisory control, and such matters are now before us for consideration.
It appears to the writer that the district court was beyond jurisdiction in issuing an order to suspend the action of the Secretary of State, inasmuch as the Constitution, section 1, article V, has placed upon the Secretary of State the duty of ascertaining the number of authorized petitioners for a referendum, and such authority cannot be absorbed by the district court. In any event, a restraining order can be issued in matters of that kind only upon the positive affidavit of the applicant. The affidavit of the applicant in this case was positive in the first instance, but was later nullified by his testimony that he did not have personal knowledge of any of the facts stated in his petition. It should, therefore, be the duty of the district court, immediately upon such facts appearing, to annul his restraining order, and, if the district court fails to do its duty in that respect, it becomes the duty of this court to see that the positive direction of the statute is not disregarded. The Constitution (Art. VIII, sec. 2) says that this court "shall have general supervisory control over all inferior courts" of the state. Therefore, when it appears to a certainty that a district court is exceeding its jurisdiction in allowing this restraining order to remain in effect, unsupported by affidavit positive as to facts, it becomes the positive duty of this court to exercise its supervisory power to direct the discharge of that order.
I cannot understand how this court could have a more positive and direct illustration of its duty under its supervisory powers. The statute here is unusually strong and plain in this: That the Constitution directs that the people may, under the referendum, by signing petitions to the extent of 15 per cent. be privileged to vote upon any bill passed by the legislature before it becomes law, "except as to laws necessary for the immediate preservation of the public peace, health, or safety, and except as to laws relating to appropriations of money, and except as to laws for the submission of constitutional amendments, and except as to local or special laws, as enumerated in Article V, section 26, of *Page 95 this Constitution." Certainly, this law, House Bill 196, is not intended as an appropriation for any purpose. Equally certain it is that the law is not intended for the immediate preservation of the public peace, health, or safety, and certain it is that it does not relate to local or special laws, as set out in the section 26 above. Therefore, no reason can be suggested why this law should override the constitutional referendum, one of the most cherished rights reserved to the people in our Constitution.
It has been truly said that the supervisory powers of this court over the inferior courts of the state should be sparingly exercised, but it is equally true that where the district courts are completely ignoring the definite mandatory provisions of our Constitution, and particularly ignoring those rights especially reserved to the people, this court should not hesitate to insist upon the strict observance of the Constitution in respect to these rights reserved to the people. I, therefore, most earnestly urge that this court exercise its constitutional supervisory power and direct that the right of referendum reserved to the people be liberally construed and observed to accomplish that end; that in this case House Bill No. 196 be held in suspense and not put into effect, or continue in effect, until the people have had an opportunity to express their views thereon at the next general election. *Page 96