Brown v. State Election Bd.
| Citation | 369 P.2d 140,1962 OK 36 |
| Decision Date | 13 February 1962 |
| Docket Number | No. 39930,39930 |
| Court | Supreme Court of Oklahoma |
| Parties | Harry BROWN, Plaintiff, v. The STATE ELECTION BOARD of the State of Oklahoma, Clee Fitzgerald, Chairman, Herbert F. Hewett, Vice Chairman, and Leo Winters, Secretary, Defendants. |
Syllabus by the Court
1. Art. 3, Sec. 5, Oklahoma Constitution requires a mandatory primary system for the nomination of candidates for State offices and since the statutes implementing the same are mandatory in nature the State Election Board has no jurisdiction or authority to refrain from holding a primary election authorized by law; the right involved is a political one.
2. Under the primary election laws of the State of Oklahoma the duty of receiving notifications and declarations of candidates for members of the House of Representatives is upon the Secretary of the State Election Board.
3. Art. 5, Secs. 12, 13, 14, 15, and 16, examined and construed in connection with Art. 5, Sec. 10, Oklahoma Constitution, and held: Sections 12, 13, 14, 15, and 16 were intended to be temporary in application and not having an enduring character must yield to legislative apportionments as directed by Sec. 10, of Art. 5; and Secs. 12-16 may not now be applied so as to disturb legislative apportionments which are the legitimate outgrowth of Sec. 10, supra, and substantial shifts in population, and it is not necessary that a valid legislative apportionment be enacted in order to render Secs. 12-16 inapplicable. This is especially so since Sec. 10 limited the application of Secs. 12-16 until such time as the Legislature should reapportion the House of Representatives after 1910.
4. This court is not authorized so to act as to put an end to the existence of any co-ordinate branch of state government. Any law, though defective, must stand so long as such law is necessary for the continued movement of the government formed by the people.
5. The authority to provide for legislative apportionment of the House of Representatives is vested in the Legislature by Art. 5, Sec. 10, Oklahoma Constitution, and the Supreme Court, in an action to review, may not make the apportionment.
6. Authority has not been given to the Supreme Court to compel the Legislature by coercion, or otherwise, to adopt proper and timely legislative apportionments, or any other law.
7. Since the Oklahoma Constitution provides for legislative apportionment of the House of Representatives upon a county and population basis, and further provides that no county shall ever take part in the election of more than seven representatives, the election of State Representatives on an 'at-large' basis is unauthorized.
8. Any court order requiring the value of a Legislator's vote be given a fractional value or weight in the Legislative Assembly, so as to give one Legislator's vote less value than another, would be incompatible with provisions of the Oklahoma Constitution.
9. It is hostile to a democratic system to involve the judiciary in the politics of the people, and it is not less pernicious if such judicial intervention in an essentially political matter, which has been granted to the Legislature, or reserved by the people, may be dressed up in abstract phrases of the law.
10. We have approved the rules announced by Chief Justice Marshall where he said: Osborn v. United States Bank, 9 Wheat. 738, 22 U.S. 738, 6 L.Ed. 204. Ratzlaff v. State, 102 Okl. 263, 229 P. 278.
11. When an act or action of the Legislature is attacked in the Oklahoma Supreme Court upon the ground that such act or action is unconstitutional, and such attack is finally rejected and denied, such legislative act or action stands, and it is the duty of all administrative and executive officials to comply therewith and to function and act thereunder, and when an official does so act there cannot be involved any violation of the oath of office by such executive or administrative official on the ground that he believes such legislative act or action to be wholly invalid and void, for otherwise such an administrative official would be investing himself with power and final authority to determine the validity and constitutionality of legislative action which in finality is exclusively a judicial function.
12. Non-jurisdictional questions, raised for the first time by a petition for rehearing, will not ordinarily be considered.
13. Contentions requiring research, which are neither supported by authorities nor argument, will not be decided.
14. A state court should not forecast or anticipate the decision that may ultimately be rendered by the United States Supreme Court on an essentially Federal question.
Original action in this court by Harry Brown, an announced candidate for the Oklahoma House of Representatives for Oklahoma County, as plaintiff, against the State Election Board, of the State of Oklahoma, Clee Fitzgerald, Chairman, Herbert F. Hewett, Vice-Chairman, and Leo Winters, Secretary, as defendants, for a writ of mandamus compelling the defendants to hold an election in 1962 for the election of State Representatives. Writ granted.
Jack P. Trezise, Midwest City, Wendell Wightman and Patrick Brown, Oklahoma City, for plaintiff.
John E. Wagner, Oklahoma City, Robert W. Blackstock, Bristow, for defendants.
J. Howard Edmondson, Governor, Oklahoma City, amicus curiae, Norman E. Reynolds, Jr., Oklahoma City, of counsel.
Leon S. Hirsh, James C. Harkin, Paul Johanning, Oklahoma City, amici curiae for Senator Walt Allen and others.
Sid White, Oklahoma City, amicus curiae.
This action is precipitated by a so-called 'policy statement' issued by the State Election Board. The statement is signed by the Chairman and Vice-Chairman, who constitute a majority of the Board. The 'policy statement', in pertinent part, states that the Board will not accept filings of candidates in 1962 who desire to be elected to either house of the Oklahoma Legislature.
Harry Brown, an announced candidate for the Oklahoma House of Representatives for Oklahoma county, has brought this original action against the State Election Board inviting attention to the 'policy statement' and alleging that the Board will not accept any filing for State Representatives in Oklahoma during the year 1962 unless they be compelled to do so. He prays for a writ of mandamus against the defendants, and each of them, to prevent interference with the election processes of the State of Oklahoma in respect to the filing of potential legislative candidates for the year 1962.
This petition presents two propositions that must be considered and disposed of by this court: First, will State Representatives be elected in 1962; and second, if so, what apportionment law will be followed in the election of State Representatives. We are not here concerned with the apportionment of the State Senate.
As to the first proposition, as to whether State Representatives will be elected in 1962, Art. 5, Sec. 10, Okla.Const., provides that members of the House of Representatives shall hold office for two years. 26 O.S.1951 Sec. 113, as amended (26 O.S.1961 Sec. 113) provides that the first Tuesday in the month of May of each even numbered year shall be biennial regular primary election day. In 26 O.S.1951 Sec. 162, it is provided that any qualified elector who is a member of a political party and properly affiliated with such party, shall have his name printed on the official ballot of his party for an office to which he is eligible in any primary election, upon filing with the proper officer, within the time provided by law, a Notification and Declaration of his candidacy. This section further provides that notifications and declarations of candidacy for members of the Senate and House of Representatives shall be filed with the Secretary of the State Election Board. 26 O.S.1951 Sec. 163, as amended (26 O.S.1961 Sec. 163), provides that Notifications and Declarations required to be filed with the Secretary of the Election Board shall be filed within a period of five days beginning on the fourth Monday in February.
26 O.S.1951 Sec. 168.1, provides that within thirty days after the close of the filing period for state offices, it shall be the duty of the Secretary of the State Election Board to certify to the secretaries of the several county election boards a list of candidates for the State Senate and House of Representatives for the various counties, and that the county election boards shall cause the names of such candidates to be placed on the county ballot.
Other provisions of the election laws provide penalties for the failure of any official to perform the duties enjoined upon him by the election laws.
In the first paragraph of the syllabus in Lowry et al. v. Town of Meeker et al., 151 Okl. 264, 1 P.2d 378, it is held:
'A court of equity has no jurisdiction to restrain the holding of an election authorized by law to be held, since the right involved is a political one.'
See also Daly et al. v. Madison County et al., 378 Ill. 357, 38 N.E.2d 160, to the same effect.
Public officers have only such authority as is conferred upon them by law, and such authority must be exercised in the manner prescribed by law. Shaw v. Grumbine, 137 Okl. 95, 278 p. 311.
From the foregoing constitutional and statutory provisions, and case law, it follows that the Secretary of the State Election Board must accept filings by candidates for legislative positions to be...
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