This court is confronted with a motion of protestant, S.P. Freeling, in these causes, whereby it is sought to dismiss these actions now pending in this court. The motion is resisted by Honorable Baxter Taylor and other attorneys appearing for petitioners (appellees) in oral argument. The grounds for dismissal are:
(1) That the cost of litigation, by way of payment of witness fees, is prohibitive.
(2) That on December 18, 1931, a purported election was held throughout this state on four of said initiated measures, and the election officials, having acted "under color" of official title and under an election proclamation at least valid on its face, are entitled to compensation for their services; that the amount so due is approximately $100,000.
(3) That Honorable Frank C. Carter, State Auditor, and the Attorney General of Oklahoma are agreeable to this view, and that if this motion is sustained, said money will be so paid out of the state treasury.
These causes are now pending in this court upon a contest of the sufficiency of the initiative petitions, and were so pending at the time of the purported submission of four of the measures of December 18, 1931. Pendency of the causes existed when on December 16, 1931, an ancillary action commenced by protestant for injunction against the State Auditor, to restrain him from paying out said funds, was decided by this court; wherein it was adjudged that if said State Auditor paid out said funds, he would do so at his peril and at the peril of his bondsmen. In re Initiative Petitions Nos. 112 et al.,153 Okla. 205, 6. P.2d 703. That ancillary judgment has become final.
This motion to dismiss should be sustained:
"According to the great weight of authority an appellant or plaintiff in error may dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error." 22 R. C. L. 144.
Dismissal, whether an original action or an appeal, is governed by the same general principle. It signifies the ending of a suit. 18 C. J. 1145. It is in fact a nonsuit.
While it is a true rule that a petitioner has no absolute right at all times and under all circumstances to dismiss (for such right is dependent upon the effect it has on the rights of the respondent, and in this regard the matter of dismissal, rests within the discretion of the court), but, subject to the restrictions as affecting the movant's adversary, the movant cannot be compelled to prosecute the action against his will. How does this dismissal affect protestant's adversary? It gives him right for the first time to have proclaimed, with authority of law, announced by this court, that the initiative petitions have been finally accepted. But it may be said this is a matter publici juris, and for reason of the public good, the matter ought for all time to be settled. So it was, when funds of the taxpayers contained in the state treasury were involved, and that issue was before this court. (There was pendency of that issue both before and after the purported election of December 18, 1931, for that decision did not become final under the rule of this court for 15 days.) Can it reasonably be said that this court should decline to act when the treasurer of the state is involved, and then act when only policies of the state government are involved? Certainly not. The highest degree of publici juris was at issue in the ancillary case where the public funds were involved. Policies of government smack of politics in the highest and lowest sense of the words. The time has now passed when the high duty to speak, if ever it existed, was upon this court.
The rule in reference to protestands right of dismissal is:
"But ordinarily, he has the legal right, which in some cases is said to amount to an absolute right, to discontinue or dismiss his suit upon such terms and under such conditions as he sees fit, or upon such terms as the court may impose, and his reasons for so doing are of no concern to the court." 18 C. J. 1148. Valentine v. Valentine, 119 N.Y. S. 426.
Nebraska holds in Banks v. Uhy, 6 Neb. 145, that plaintiff is entitled to dismiss an action voluntarily without prejudice to another action, although his object in procuring dismissal is to proceed with another action involving the same subject-matter. Section 190, C. O. S. 1921.
"Under ordinary circumstances," says the text of Corpus Juris, "it is almost a matter of course to grant a dismissal or nonsuit before verdict, upon payment of costs." Veazie v. Wadleigh, 11 Pet. (U.S.) 55, 9 L.Ed. 630.
In New Hampshire Banking Co. v. Ball, 57 Kan. 812, 48 P. 137, it was held that the right to dismiss without prejudice beforefinal submission is absolute and denial thereof is prejudicial error. Our statute on dismissal is identical with that of Kansas. There it was said:
"The plaintiff is entitled to control the disposition of its action, where the application is seasonably made, and until the final of the cause. It was a common-law right, and in this state the statute expressly provides that the plaintiff may dismiss without prejudice to a future action before the final submission of the case to the jury, or to the court, where the trial is by the court. Civil Code, sec. 397. Until that time the right is absolute, to be exercised by the plaintiff at its option, and without the consent of the defendants." Pugsley v. C., R.I. P. Ry. Co., 69 Kan. 599. 77 P. 579.
Herein there has been no final submission, but the causes were set for hearing evidence when the motion to dismiss was filed.
"Final submission" is not present until all questions of law have been disposed of by the court, says the Kentucky Court, Doss v. Ill. Cen. R. Co., 198 Ky. 222, 249 S.W. 346.
"Final submission" means a submission which is equivalent of the return of the verdict, says the Montana court. Samuel v. Mont. H. Col. Co., 69 Mont. 111, 220 P. 1093.
Section 664, of our statute, provides:
"An action may be dismissed, without prejudice to a future action:
"First: By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court."
In Avery v. Jayhawker Gas Co., 101 Okla. 286, 225 P. 544, this statute was interpreted to mean what it plainly says. And in Naylor v. Eastman Nat. Bank, 107 Okla. 208, 232 P. 73, this court held that a "plaintiff may without leave of court dismiss before final submission to jury or rendition of judgment, by filing signed statement," by virtue of section 665, C. O. S. 1921.
In the last-cited case this court held that by virtue of section 665, C. O. S. 1921, a plaintiff "may without leave of court dismiss before the final submission to jury or rendition of judgment by filing signed statement," under the conditions provided, and that "section 665, C. O. S. 1921, grants unto a plaintiff a right of dismissal in addition to the right given him by section 664." the latter section being predicated upon the condition that dismissal is prior to "final submission," but the right of dismissal under section 665, supra, is conditioned upon being before the adversary "has filed a pleading in the action asking affirmative relief. He may in the absence of such pleading, therefore, do so (dismiss) until the case has been terminated by judgment of the court, if the same has not been finally submitted. * * *"
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This court is confronted with a motion of protestant, S.P. Freeling, in these causes, whereby it is sought to dismiss these actions now pending in this court. The motion is resisted by Honorable Baxter Taylor and other attorneys appearing for petitioners (appellees) in oral argument. The grounds for dismissal are:
(1) That the cost of litigation, by way of payment of witness fees, is prohibitive.
(2) That on December 18, 1931, a purported election was held throughout this state on four of said initiated measures, and the election officials, having acted "under color" of official title and under an election proclamation at least valid on its face, are entitled to compensation for their services; that the amount so due is approximately $100,000.
(3) That Honorable Frank C. Carter, State Auditor, and the Attorney General of Oklahoma are agreeable to this view, and that if this motion is sustained, said money will be so paid out of the state treasury.
These causes are now pending in this court upon a contest of the sufficiency of the initiative petitions, and were so pending at the time of the purported submission of four of the measures of December 18, 1931. Pendency of the causes existed when on December 16, 1931, an ancillary action commenced by protestant for injunction against the State Auditor, to restrain him from paying out said funds, was decided by this court; wherein it was adjudged that if said State Auditor paid out said funds, he would do so at his peril and at the peril of his bondsmen. In re Initiative Petitions Nos. 112 et al.,153 Okla. 205, 6. P.2d 703. That ancillary judgment has become final.
This motion to dismiss should be sustained:
"According to the great weight of authority an appellant or plaintiff in error may dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error." 22 R. C. L. 144.
Dismissal, whether an original action or an appeal, is governed by the same general principle. It signifies the ending of a suit. 18 C. J. 1145. It is in fact a nonsuit.
While it is a true rule that a petitioner has no absolute right at all times and under all circumstances to dismiss (for such right is dependent upon the effect it has on the rights of the respondent, and in this regard the matter of dismissal, rests within the discretion of the court), but, subject to the restrictions as affecting the movant's adversary, the movant cannot be compelled to prosecute the action against his will. How does this dismissal affect protestant's adversary? It gives him right for the first time to have proclaimed, with authority of law, announced by this court, that the initiative petitions have been finally accepted. But it may be said this is a matter publici juris, and for reason of the public good, the matter ought for all time to be settled. So it was, when funds of the taxpayers contained in the state treasury were involved, and that issue was before this court. (There was pendency of that issue both before and after the purported election of December 18, 1931, for that decision did not become final under the rule of this court for 15 days.) Can it reasonably be said that this court should decline to act when the treasurer of the state is involved, and then act when only policies of the state government are involved? Certainly not. The highest degree of publici juris was at issue in the ancillary case where the public funds were involved. Policies of government smack of politics in the highest and lowest sense of the words. The time has now passed when the high duty to speak, if ever it existed, was upon this court.
The rule in reference to protestands right of dismissal is:
"But ordinarily, he has the legal right, which in some cases is said to amount to an absolute right, to discontinue or dismiss his suit upon such terms and under such conditions as he sees fit, or upon such terms as the court may impose, and his reasons for so doing are of no concern to the court." 18 C. J. 1148. Valentine v. Valentine, 119 N.Y. S. 426.
Nebraska holds in Banks v. Uhy, 6 Neb. 145, that plaintiff is entitled to dismiss an action voluntarily without prejudice to another action, although his object in procuring dismissal is to proceed with another action involving the same subject-matter. Section 190, C. O. S. 1921.
"Under ordinary circumstances," says the text of Corpus Juris, "it is almost a matter of course to grant a dismissal or nonsuit before verdict, upon payment of costs." Veazie v. Wadleigh, 11 Pet. (U.S.) 55, 9 L.Ed. 630.
In New Hampshire Banking Co. v. Ball, 57 Kan. 812, 48 P. 137, it was held that the right to dismiss without prejudice beforefinal submission is absolute and denial thereof is prejudicial error. Our statute on dismissal is identical with that of Kansas. There it was said:
"The plaintiff is entitled to control the disposition of its action, where the application is seasonably made, and until the final of the cause. It was a common-law right, and in this state the statute expressly provides that the plaintiff may dismiss without prejudice to a future action before the final submission of the case to the jury, or to the court, where the trial is by the court. Civil Code, sec. 397. Until that time the right is absolute, to be exercised by the plaintiff at its option, and without the consent of the defendants." Pugsley v. C., R.I. P. Ry. Co., 69 Kan. 599. 77 P. 579.
Herein there has been no final submission, but the causes were set for hearing evidence when the motion to dismiss was filed.
"Final submission" is not present until all questions of law have been disposed of by the court, says the Kentucky Court, Doss v. Ill. Cen. R. Co., 198 Ky. 222, 249 S.W. 346.
"Final submission" means a submission which is equivalent of the return of the verdict, says the Montana court. Samuel v. Mont. H. Col. Co., 69 Mont. 111, 220 P. 1093.
Section 664, of our statute, provides:
"An action may be dismissed, without prejudice to a future action:
"First: By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court."
In Avery v. Jayhawker Gas Co., 101 Okla. 286, 225 P. 544, this statute was interpreted to mean what it plainly says. And in Naylor v. Eastman Nat. Bank, 107 Okla. 208, 232 P. 73, this court held that a "plaintiff may without leave of court dismiss before final submission to jury or rendition of judgment, by filing signed statement," by virtue of section 665, C. O. S. 1921.
In the last-cited case this court held that by virtue of section 665, C. O. S. 1921, a plaintiff "may without leave of court dismiss before the final submission to jury or rendition of judgment by filing signed statement," under the conditions provided, and that "section 665, C. O. S. 1921, grants unto a plaintiff a right of dismissal in addition to the right given him by section 664." the latter section being predicated upon the condition that dismissal is prior to "final submission," but the right of dismissal under section 665, supra, is conditioned upon being before the adversary "has filed a pleading in the action asking affirmative relief. He may in the absence of such pleading, therefore, do so (dismiss) until the case has been terminated by judgment of the court, if the same has not been finally submitted. * * *"
Such is the situation before this court, in the instant causes; there is no plea for affirmative relief by the adversary of protestant, there has been no final submission of the causes, and the causes have not (except as to the ancillary cause as against the State Auditor, and in that matter no affirmative relief by adversary was sought) been terminated by judgment of court. Moreover the protestant has filed his written and signed statement that he does so dismiss the causes. Therefore, by virtue of the rule of law recited in the Naylor Case, supra, "such dismissal is immediately effective without any order of dismissal being made by the court." Consequently this court is without power or authority to deny dismissal, "but can only acquiesce in dismissal," "upon such terms as the court may impose." 18 C. J. 1148; Davis v. Mimey,60 Okla. 244, 159 P. 1112; Okla. Coal Co. v. Corrigan,67 Okla. 90, 168 P. 1024; Stuart v. Hicks, 52 Okla. 665, 153 P. 143, and two early cases cited therein; Mullen v. Noah, 64 Okla. 181,166 P. 742; Inter-State Crude Oil Co. v. Young, 29 Okla. 465,118 P. 257; Long v. Bagwell, 38 Okla. 312, 133 P. 50; Kolp v. Parsons, 50 Okla. 372, 150 P. 1043; Brown et al. v. Massey,19 Okla. 482, 92 P. 246; Oberlander et al. v. Confrey,38 Kan. 462, 17 P. 88; McIntosh v. Lynch, 78 Okla. 85, 188 P. 1079.
What are proper terms that may be, in the discretion of the court, imposed? The first is that the court marshal the facts and recite the status of proceedings in the causes, warranting dismissal, for, it is by the Constitution, section 5, art. 7, provided:
"The Supreme Court shall render a written opinion in each case * * * after said case shall have been submitted for decision."
If the causes have not been finally "submitted for decision," it is what I conceive to be the performance of my duty to so say.
Another discretion of the court that may be imposed as a term or condition of dismissal is an analysis of the effect of dismissal upon the movant's adversary. And, since the movant's adversary ostensibly represents a great body of the citizenship of this state who are petitioners upon the initiative measures, and since protestant himself, as one citizen, is a remonstrator against the enactment into law of the initiative measures, this court may analyze and determine whether or not it is confronted with a matter publici juris. And if that determination is in the affirmative, declare the law as affecting the public as a condition to determination of movant's legal right of dismissal. "A thing is said so to be (publici juris) when it is common property." Cochran's Law Lexicon.
What is meant by a thing that is common property? It is when the thing involved belongs to the body of the citizenship. What is the thing involved? Primarily, it is the right of petitioners to have these proposed measures submitted to the electorate for enactment or rejection at the ballot box. That matter ultimately may concern both personal liberties as well as property rights.
Secondarily, the causes now considered did affect (in the ancillary proceeding) public property rights, in the expenditure of
public funds from the public treasury. That second matter was not decided, but reserved by this court for future determination. By this dismissal this court recognizes protestant's legal right to abandon the determination of all questions involved, an inclusive to that extent of his personal liberty and his property rights.
These questions could have been properly determined prior to the proposed election of December 18, 1931, as was done 90 years ago in the state of Rhode Island. Trial of Thomas Wilson Dorr, 2 Am. St. Trials, 5. However, this court having finally decided to abandon determination of the public property right involved in the ancillary case and to reserve for some future case the determination of that matter and in the meantime to place upon the State Auditor the responsibility for safety of public funds and the risk of payment therefrom of illegal claims, we may likewise as well, and more logically, trust to future determination the adjudication of the effect of the rejection at the polls of the measures submitted by executive orders pending litigation upon them and likewise the question of the duty of the Governor to make a proper submission of all these initiative measures.
Protestant pleads in paragraph 1 of his motion to dismiss that the cost of determination of these causes is prohibitive. It may be that he discovered the prohibitive cost of this litigation subsequent to the date first fixed for hearing herein. Surely he would not delay any man for lucre or malice. It may be that he sought in good faith, for good faith is presumed, by the exercise of his legal right, to counteract, what he assumed to be, the untimely haste of the Governor in submitting some of these measures, pending determination of final acceptance of the initiative petitions. Even though the cost of continuing litigation may now seem prohibitive to protestant; even though he may now consider the benefit, to the public, to be derived from a determination, even in his favor, of the issues, of less importance than the cost of continued litigation, there is no necessity for assignments of reasons for his final act, for "his reasons for so doing (dismissing) are of no concern to the court." 18 C. J. 1148. Neither is protestant's conclusion, that certain election officials having acted "under color of official title and under a proclamation at least valid on its face, and that they are entitled to compensation"; nor the fact, if it be a fact, that both the State Auditor and the Attorney General "are agreeable to this view"; nor the fact "that if this motion is sustained the election officials will receive compensation for their services," material, as a matter of law, to protestant's legal right of dismissal.
All men agree to the words of the Lowly Nazarene that "The laborer is worthy of his hire." If the state of Oklahoma, acting through its Governor in the manner provided by law, caused these various election officials to labor, they (all who labored or furnished necessary supplies) should be paid out of the appropriation made by the Legislature for that purpose. If Honorable William H. Murray, without legal authority, caused such labor, or caused such supplies to be furnished and used, he as an individual should pay the bill. If the debt is not so paid, it may be that some future Legislature will recognize that those who served and those who furnished supplies did so in furtherance of the recognized right of citizens to petition for redress of grievances or to remonstrate, that it should be treated as an obligation of the public, and make an appropriation out of which the claims may be lawfully paid.
There is another feature contained in paragraph 2 of protestant's motion which ought never, in my opinion, to go unchallenged by freemen. That is the statement that certain officials having acted "under color of official title and under an election proclamation at least valid on its face," the public money ought now be paid out. That statement of face validity of the executive order containing the proclamation for election of December 18th, last, was challenged by written opinion and denied in the ancillary cause by Justices Swindall, Andrews, and myself, and we were supported by the vote of Justice Cullison. The majority opinion did not support nor sustain the facial nor resultant validity of the said election proclamation, nor did protestant's brief or argument herein, prior to his about face, subsequent to the election, sustain the same.
That proclamation was in the face of this protest and appeal, it recited by its text the pendency of this litigation and in plain words defied any court to interfere with that so-called election. Therein also the sabre was rattled and the army of the state was paraded, in words.
Mr. Pound aptly says:
"Courts cannot be made the tame cats either of the executive or the legislative power except as they themselves yearn for a warm place by the fire. If the judges, 'the inheritors of great traditions,' have seemed at times, abruptly or by imperceptible degrees, to abdicate some measure of their functions, the fault, if it is a fault, rests not on the phraseology of a particular Constitution, but rather on the construction
which the final interpreters of the law have put on the ordinary constitutional rights of person and property. In their cautious reluctance to push such rights to a stubbornly literal conclusion in the interests of an extreme individualism the courts have frequently demonstrated that they are not automata, playing the game with mere mechanical skill and accuracy. Independent judgment as an organ of the judicial mind is not wholly atrophied, however reluctant its possessors are at times to exercise it." Harvard Law Review, vol. 35, pp. 795-6.
Even the extraordinary assumption of power in the issuance of orders in council of the British Crown was based on an act of a subservient Parliament. In the proclamation not even the words of the ipsi dixit of the Governor support the remarkable document.
When executive act preceded the law, or determination of what the law is (when determination is involved in court as in these causes), we are afforded an example of tyranny.
William Pitt expressed it in another dimension when he said:
"Where the law ends Tyranny begins."
It will be remembered that when free governments superseded the hereditary sovereignties of Greece, all who obtained absolute power in a state were called tyrants, for the term regards the irregular way in which the power was gained, whether by force or fraud as well as the manner of the exercise of the power. Webster's Int. Dict.
Should we recognize this power to rule by executive orders in one case, we should in all. The acts and deeds of this court are declaratory of the permanent rule of law. It must be so, for, as Edmund Burke pointed out:
"The vice of ancient democracies, and one of the causes of their ruin: that they ruled by occasional decrees, which broke in upon the tenor and consistency of their laws."
Consequently, should this court recognize the superseding of a pending determination of law by an executive order proclaiming the law, there is no telling the consequences. In its inception it is an executive despotism and the result is beyond our conception of government. Opposition to despotic government is so engrafted in the Anglo-Saxon mind that it cannot be countenanced as a rule over such people.
Authority leads to love of power. The recorded struggle to hold within limits of law the power granted is the history of the English people. That struggle began within 50 years after the Conquest. What is probably the oldest constitutional document in English history — a writ in the reign of John (1204) — establishes that then there was a higher authority than that of even the King, and it was his council of advisors (Report on the Dignity of a peer of the Realm, vol. 1, p. 54). In a Medieval Year Book an authority over even a King was recognized:
"The law is the highest inheritance which the King has, for if there were no law, there would be no King, and no inheritance."
Burke recognized limitations upon the power of King George III, when, in speaking upon the. Excise Bill to levy tax upon the American Colonies, he said:
"The poorest man in his cottage may bid defiance to all the forces of the Crown; it may be frail, its roof may shake, the storm and rain may enter, but the King of England may not enter."
It may have been that King George had before him the example of his cousin, Frederick the Great, in his object of making all of his ministers dependent on him (Enc. Brit. 4-827) rather than constituting them members of a party acting together in pursuance of a common policy. Howbeit, as viscount Morley remarks: Not everyone can draw the bow of Ulysses. Moreover, the English people cannot long endure a government possessed of the spirit of the bayonet.
The people of Oklahoma have indicated on at least two occasions their ineptitude for the Spirit of Martial Law.
This court should not be blind to that which every citizen knows, nor to the recorded argument adduced in the hearing of these causes, all of which indicates that this proclamation was "power, usurped" and its enforcement was accomplished by the rattle of the sabre. Need I defend myself for so saying after recitation of these facts? Is not the statement axiomatic?
The Supreme Court of the United States in the year 1874, speaking through Mr. Justice Miller, in the cause of Savings
Loan Association v. Topeka, 22 L.Ed. 461, used equally as strong language, in discussing the abuse of power in the action of a coordinate (legislative) branch of government. It was said: It "is none the less a robbery because it is done under the forms of law. * * * This is not legislation. It is a decree
under legislative forms. (Emphasis mine.)
The Governor is bound by the law, as enacted by the people and as interpreted by their courts.
"Whether God or the people be regarded as ruler (source of power) their authority must be exercised by some intermediate persons, either priests or magistrates. These latter belong personally to the class of subjects, and they exercise only delegated authority as the servants of God or of the people. They cannot, therefore, be regarded as real rulers, who are unable to act in person. They are constantly forced to refer to a superior power (the law), which itself rules them, and which confers upon them an authority that they do not possess in themselves." (The Theory of the State, p. 340 — Oxford 1892.)
Before a Governor by executive order or proclamation can properly prescribe and enforce any act upon the body of the people of this state, he must have specific authority of law. A proclamation is simply defined as a crying out of the law. I do not wish to be understood as acquiescing in a statement that this proclamation is valid on its face; nor to be understood as assenting to the proposition that public funds, contained in this appropriation, may be legally paid out upon the assumption that this proclamation is the law.
The reasons set up by protestant in his motion to dismiss may appeal strongly to his conscience and impel him to exercise his legal right of dismissal. On the other hand, there are good reasons why he should not dismiss, for not having put his hand to the plow and called into motion the machinery of this court for the determination of the question of the legality or sufficiency of the initiative petitions, and the legality of a submission pending litigation of that question, and the determination of the legality of expenditures of public funds involved, he should not now turn back and leave these vital public questions undetermined.
I am loath to consent to dismissal of these causes while these questions are undetermined, thus leaving the State Auditor, if he "should authorize the paying out of any funds, * * *" subject to an action to determine "whether or not the Auditor and his bondsmen are liable," but, recognizing the legal right to dismiss at this stage of the proceedings, in accordance with my views heretofore expressed in my dissenting opinion in Julian v. Capshaw, 145 Okla. 237, 292 P. 841, I must assent to the dismissal.
This court adheres to the rule of law announced by it in Re Initiative Petition No. 23, State Question No. 38, 35 Okla. 49,127 P. 862, decided October 8, 1912.
These causes are, therefore, dismissed, subject, as provided by section 6631, C. O. S. 1921, "to be revived within five days by any other citizen." The clerk of this court will retransmit all papers and documents heretofore transmitted by the Secretary of State to the clerk of this court, to the Secretary of State for his appropriate action.
CULLISON and ANDREWS, JJ., concur.