State ex rel. Murray v. Beard

1953 OK 355, 264 P.2d 305, 1953 Okla. LEXIS 620

• Court: Supreme Court of Oklahoma
• Decided: December 7, 1953
• Docket: No. 36257
• Status: Published

Opinions

PER CURIAM.

Essential facts to present this controversy are as follows: The Twenty-fourth Legislature in regular session in 1953 adopted House Bill No. 933, approved May 7th, 1953, Chap. 6a, p. 357, S.L.1953, dealing generally with turnpikes, the construction thereof with proceeds of revenue bonds, etc., and Senate Bill No. 454, approved June 8th, 1953, Chap. 6b, p. 370, S.L.1953, dealing with the same general subject-matter and providing some additions and amendments to the House Bill. 69 O.S. Supp. § 652 et seq.

Before the effective date of these acts respondent Beard on July 7, 1953, filed with the Secretary of State copies of Referendum Petition 105, State Question 359, as to Senate Bill 454 of the 24th Oklahoma Legislature, and Referendum Petition 106, State Question 360, as to House Bill 933 of the 24th Oklahoma Legislature intended to be circulated for the securing of signatures of citizens and legal voters of the State of Oklahoma. The same person on September 10, 1953, filed with the Secretary of State completed petitions' signed by a sufficient number of citizens and legal voters to accomplish the referendums desired. After due notice as provided by law, and there being no protest, these petitions by order of the Secretary of State on September 23, 1953, were held sufficient to order the referendum of the two legislative acts.

34 O.S.1951 § 8, allows ten days to appeal from this order. This time expired October 3, 1953, without any appeal, and thereupon the approval order of the Secretary of State became final. The proponents have failed to submit a ballot title for either referendum question as required by 34 O.S. 1951 § 9.

This action seeks to compel the filing of ballot titles now, upon the theory that far more than a reasonable time therefor has passed and that respondents have not presented such ballot titles nor indicated when they would do so.

The respondents, while agreeing in effect that they "are to prepare ballot titles” for submission to the Secretary of State and to the Attorney General for approval, contend that there is no urgency in the matter and no necessity or legal requisite demanding and/or requiring that these ballot titles be prepared and submitted at this time or at any time in the near future.

Thus while expressing the intention to prepare and submit these two ballot titles, the respondents, in pleadings filed herein, are very indefinite as to when they expect to do so. In oral argument they state in effect that they expect to submit such titles by May 1, 1954, as if to argue that a discretion exists to perform this duty at any time in seven months after the duty arises.

Respondents take the view and express the desire that these two propositions should be submitted to a vote of the people only at the next regular election held throughout the state, and they contend that their delay in submitting ballot titles is compatible with such view and desire, and is within their lawful rights.

Article 5, Section 3 of the Constitution of Oklahoma provides in part:

“ * * * All elections on measures referred to the people of the State should 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 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. * * * The Legislature shall make suitable provisions for carrying into effect the provisions of this article.”

The Legislature has implemented the foregoing provisions of the Constitution by the passage of Title 34, O.S.1951 § 12, which provides:

“Whenever a petition is accepted and its title has been decided upon the Secretary of State shall, in' writing, notify the Governor, who forthwith shall issue a proclamation setting forth the substance of the measure and the date of the referendum vote. R.L.1910, § 3379.”

and section 25 which provides:

“Whenever any measure shall be initiated by the people in the manner provided by law, or whenever the referendum shall be demanded against any measure passed by the Legislature, same shall be submitted to the people for their approval or rejection at the next regular election; provided, the Governor shall have power, in his discretion, to call a special election to vote upon such questions, or to designate the mandatory primary election as a special election for such purpose. R.L. 1910, § 3394; Laws 1916, ch. 32, p. 89, §2.”

The contention of respondents amounts to a claim upon their part, under the guise of reserved legislative authority, of the right to delay the submission of such propositions to a vote of the people of the State, or to delay presenting ballot titles so as to fix or influence the election date on the measures. Such claimed right is expressed in neither the Constitution nor Statute; to the contrary, the power provided for therein to fix the date of such election is definitely reposed in “the Governor * * * in his discretion, to call a special election to vote upon such questions, or to designate the mandatory primary election as a special election for such purpose.”

Clearly it was contemplated by the Constitution, Art. V, Sec. 3, and by the Legislature, 34 O.S.1951 § 25, that in some circumstances the Governor could and should call a special election for referendum measures, in any such instance the discretion to rest wholly with the Governor. There-is no provision of law that permits any of the proponents of a referendum to directly or indirectly control or influence or prevent the Governor from freely exercising his discretion. To permit a person submitting a referendum to exercise unlimited discretion as to delay in filing a ballot title for the purpose of effecting or controlling the election date, or for the purpose of delaying or preventing the Governor from exercising his discretion as to when the vote on the question should occur, would be an unauthorized interference with the discretion vested in the Governor by both the Constitution and the Statutes.

In final analysis, however, the only jus-ticiable question presented, and the only question for this court to determine in this case is the legal question as to whether the respondent has unlimited discretion as to when he shall first file or present ballot titles.

With that general statement of the positions and contentions of the parties we consider the applicable provisions of our laws in reference to the “referendum.’’ Our Constitution in Art. V, Sec. 2, fully protects the right of the referendum and thereby any legislative act duly referred to the people shall not taire effect until approved by vote of the people. However, in recognition of the principle that a percentage of the people should not delay or suspend legislative acts indefinitely there were various regulations of the rights to proceed by referendum. Thus a copy of the petition to be circulated must first be filed with the Secretary of State, and thereafter the completed petition for the referendum signed by five per cent of the legal voters must be filed in 90 days after adjournment of the Legislature. Const. Art. V, Sec. 3; 34 O.S.1951 § 1, and Sec. 8.

The Secretary of State must forthmith publish a notice “setting forth the date of such filing.” Thereupon any citizen desiring to protest such petition must do so in ten days “at which time” the Secretary of State will hear testimony and arguments and decide the matter. If any person de-sii'es to appeal to the Supreme Court he must do so in ten days and “such court shall give such cause precedence over all others.” If the Supreme Court be then adjourned, “the Chief Justice shall immediately convene the same for such hearing.” All this is specifically provided for in 34 O.S. 1951, Sec. 8. (Emphasis given in the foregoing quotations and in subsequent paragraphs or quotations in' this opinion is in each instance added by the court.)

34 O.S.1951 § 9 provides in material part that “ * * * when the referendum is ordered against any measure passed by the Legislature, * * * it shall be the duty of the parties submitting such proposition to prepare and file one copy of same with the Secretary of State and one copy with the Attorney General, such copies to contain a ballot title of not exceeding one hundred words, which shall contain the gist of the proposition without any argument or statement either for or against such measure. Within three days after the filing of such copy and ballot title with the Attorney General” he must approve the suggested ballot title or "within said three days’’ submit a substitute ballot title.

There follows in 34 O.S.1951 § 10 a provision for appeal to the Supreme Court “within ten days’’ by any person who is dissatisfied with the ballot title fixed as aforesaid. Such an appellant is by such section required to -suggest a substitute -ballot title of his own, and upon any such appeal the Supreme Court, by provision of such Sec. 10 aforesaid, may ápprove either theretofore suggested ballot title, or such court may draft a new ballot title which will comply with the requirements of Sec. 9 aforesaid.

These laws upon comprehensive consideration demonstrate that all procedural steps in connection with the orderly exercise of the rights of the referendum must be performed with dispatch. The fixing of a ballot title, with rights of every one to be heard thereon, is but one of those several procedural steps. We observe that there are four possibilities as to authorship of the short ballot title ultimately to be printed on the ballot to fairly advise each voter of the question presented to him for his yes or no vote. That final ballot title may have been written -1- by the proponent of the measure, -2- by the Attorney General, -3- by the appellant from the first effective approval of ballot title, or -4- by the Supreme Court on appeal. As to the second and third above mentioned ballot title sources there is definite limitation by stated number of days, while as to the first and fourth there is definite requirement of action with dispatch and without delay.

We can find no basis for concluding that the person standing in the position of the proponent of the measure, thus to some extent at least representing the thousands of other signers of the petition, can take his own desired time of weeks or months or longer to take the mere procedural step of implementing his desire as to the formation of the ballot title. We must repeat that this is a mere procedural step, designed to make, in one hundred words or less, a fair statement of. the question to be printed on the ballot. Rather, it seems to us the lawmakers might well have had in mind the fact that the person acting as proponent would for ninety days or more have in mind the exact matter and the exact question to be submitted to the voters and could therefore come forward instanter with his suggestion of a ballot title; and that his activity and interest in the matter would furnish sufficient urge and sufficient assurance to bring forward his ballot title suggestion without any delay. In view of the dispatch required of all others, it seems wholly incongruous to argue for an unregulated license or for unlimited time in the original presentation of a suggested ballot title for a referendum question.

We do not find any prior case in which there has been any consideration or construction of the exact provision in 34 O.S. 1951 § 9 that “when the referendum is ordered” it “shall be the duty * * * ” to file the copies with ballot title as above noted. It seems to be conceded in the arguments here that in this case this provision became applicable and this duty arose October 3, 1953, when the appeal time expired on the approval of the petitions by the Secretary of State, or when the approval of the sufficiency of the petitions became final. That rule has been applied to initiative petitions in the case of In re Initiative Petition No. 2, of Cushing, Oklahoma, 157 Okl. 54, 10 P.2d 271, and in the case of In re Initiative Petition No. 142, State Question No. 205, 176 Okl. 155, 55 P.2d 455. Thus it is made to appear that in this instance there has been a disregard of the ballot title duty at least since October 3, 1953, a delay of more than eight weeks.

There is some argument of the right and desire of respondents to confer with other petition signers as to this item of the ballot title, but the importance of any such reason for great delay really seems unimpressive in view of the time already elapsed, and the fact that any one dissatisfied with the first approved title may appeal therefrom. 34 O.S.1951 § 10. Furthermore, the whole matter to be voted on is supposed to be fully presented to the electorate before election day thereon, and in practice it is so. 34 O.S.1951 §§ 13, 15 and 17. We repeat that the sole purpose of the ballot title is to print a fair short form statement of the ■question to be voted on. No one should seek an unfair advantage in this ballot title statement, and all can have their say, in an ■orderly manner, as to what the ballot title should contain, thus making it certain that no person will have an unfair advantage by reason of the verbiage printed on the ballot.

With those rights and safeguards the whole matter should move forward with reasonable dispatch as to all procedural ■steps, to clear the way for a vote by the people.

It is argued that neither of these three respondents could be, or should be, forced to do and perform the physical act of writing and submitting these two ballot titles. Be that as it may, it might well be ■said, as above indicated, that the respondents have already lost or abandoned or waived their primary right to suggest ballot titles, since they have failed to perform that ■duty or exercise that right at least since October 3, 1953. At any rate, it seems quite ■clear that the respondents should now submit these two ballot titles or be held to have waived and abandoned their first right to do so, in which event it would be quite orderly for the Attorney General to submit ballot titles, subject to review, as they would be if any person desires to appeal.

We are convinced that the respondents should now submit these two ballot titles in five days, or upon their failure to do so, the right and the duty of the Attorney General to do so in three days should be fully established and upheld. And since this involves a procedural step as above set out, our determination in reference thereto is not any infringement upon or interference with the legislative power.

A question has been raised as to the right of the Governor of the State to proceed in this action through the Attorney General upon written direction of the Governor. We resolve that question by application of the constitutional provision Art. VI, Sec. 8, that “The Governor shall cause the laws of the State to be faithfully executed”. Such provision in the general language used should support the Chief Executive in every orderly action undertaken to bring about faithful execution of all laws in the general public good. See, also, 74 O.S.1951 § 18b.

Upon consideration of all the foregoing, we have concluded that it is the definite duty of this court to fully sustain this action and the manner and method in which the question is presented for judicial determination.

As to the propriety of relief in nature of mandamus see Const. Art. VII, Sec. 2; 12 O.S.1951 § 1451; 55 C.J.S., Mandamus, § 239, page 452; Carroll v. State ex rel. Mosier, 80 Okl. 89, 194 P. 219; Russell v. Harrison, 33 Okl. 225, 124 P. 762.

The relief here sought is therefore granted in the alternative as follows: The respondents are directed within five days to prepare and submit ballot titles for the two questions presented by these referendums, or in the alternative, if respondents shall fail to submit suggestive ballot titles in five days, then such failure shall be taken as a waiver or abandonment of the original or primary right to suggest and submit such ballot titles, and in that event the right and duty of the Attorney General in three days to suggest and submit such two ballot titles. without any hindrance of any kind whatever from respondents, shall he fully established, upheld and confirmed.

Our attention is called to the fact that the three respondents here are parties plaintiff in another civil action No. 132000 in the District Court of Oklahoma County recently filed against the Attorney General of Oklahoma in an effort to enjoin and prevent him from drawing and submitting suggested ballot titles in the matters here involved. However, at the beginning of this cause in this court, it was expressly stipulated that said cause No. 132000 should remain in status quo pending determination of this action in this court. Therefore, of course, there is no conflict in jurisdiction, and the matter having been fully determined in this court, that action No. 132000 in the District Court as aforesaid will stand abated and any orders' therein made will be considered as withdrawn by action and stipulation of the parties, and by this decision by this court, and no formal action or order in reference thereto is necessary in this court.

The relief sued for herein is granted in the alternative as ordered in this opinion.

HALLEY, C. J., JOHNSON, V. C. J., and WELCH, CORN, DAVISON, and WILLIAMS, JJ., concur. O’NEAL, J., concurs in result. ARNOLD and BLACKBIRD, JJ., dissent.