In re Initiative Petitions Nos. 112, 114, 117, 118
| Decision Date | 16 December 1931 |
| Docket Number | 23082,23084,23087,23088. |
| Citation | 6 P.2d 703,153 Okla. 205,1931 OK 769 |
| Parties | In re INITIATIVE PETITIONS NOS. 112, 114, 117, 118. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When citizens circulate a petition initiating a me sure, as is provided for in section 6631, C. O. S. 1921, file a true and exact copy thereof in the office of the secretary of state and thereafter, and within 90 days, file the original petition in said office, and the petition purports to contain the signatures of the number of legal voters required by the laws of this state to initiate such measure, it places in motion the process of the people's exercising their reserved legislative power, and a court of equity, as a general rule, will not assume, in advance, jurisdiction to determine whether the proposed act, if adopted, is submitted and adopted in accordance with the law governing the same. McAlister, Sec. of State Election Board v. State ex rel Short, Atty. Gen., 95 Okl. 200, 219 P. 134, 33 A. L. R 1370; McAlister v. State ex rel. Walton, 96 Okl 143, 221 P. 779.
Application for an injunction against the State Auditor of Oklahoma to prevent him from paying out funds in connection with the holding of an election on certain initiative petitions, numbered 112, 114, 117, and 118, respectively.
Injunction denied.
J. Berry King, Atty. Gen., for Frank Carter, State Auditor.
Gov. Wm. H. Murray, and W. D. Humphrey, of Oklahoma City, amicus curiæ.
This is an application for an injunction against the state auditor. The object is to prevent him from paying out funds in connection with the holding of an election on December 18, 1931, on the above initiated petitions.
The petitions were filed in the office of the secretary of state within the time provided by law. From an order of the secretary of state, upholding the petitions, an appeal was prosecuted to this court and, during the pendency of the appeal, this application for injunctive relief has been made.
In the case of McAlister, Sec. of State Election Board v. State ex rel. Short, Atty. Gen., 95 Okl. 200, 219 P. 134, 33 A. L. R. 1370, this court said: "When the Legislature authorizes the submission of a proposed amendment to the Constitution to the people, it merely places in motion the process of the people's exercising their reserve legislative power, and a court of equity will not assume in advance jurisdiction to determine whether the proposed amendment, if adopted, is submitted and adopted in accordance with the law governing the same."
The same rule was announced in the case of McAlister v. State ex rel. Walton, 96 Okl. 143, 221 P. 779. We think the case at bar comes within the rule announced in the above cases.
When the copy of the petitions were filed in the office of the secretary of state, and thereafter signed by what seemed to be a sufficient number of the voters of the state to initiate the measure, it placed in motion the process of the people's exercising their reserved legislative power, and a court of equity, as a general rule, will not assume, in advance, jurisdiction to determine whether the proposed act, if adopted, is submitted and adopted in accordance with the law governing the same.
The validity or sufficiency of the proceedings are now pending before the court for future determination, and at this time we express no opinion as to the validity thereof.
If the state auditor should authorize the paying out of any funds before the final determination of the proceedings herein, and it should finally be held that the election was illegal and void, it can then be determined whether or not the auditor and his bondsmen are liable. At this time we express no opinion thereon.
On the showing made, we refuse to issue the injunction.
I desire to specially concur in the clear and lucid opinion of Mr. Justice HEFNER. This opinion is supported by former decisions of this court.
In Re Initiative Petition No. 23, 35 Okl. 49, 127 P. 862, 866, this court said: "These petitions, therefore, and the signatures thereto, are presumed to be valid, and the presumption obtains on the filing of the objections in the office of the Secretary of State that those who have signed them are legal voters of the state of Oklahoma, and this is the one provision that is the sine qua non, the substantial material element necessary in every case to constitute a valid signature, and the burden of proof to overcome this presumption should be and is, in every instance, upon the protestant, and, in the absence of any evidence of fraud, forgery, or other improper or wrongful conduct in securing the signers to the petition sufficient to throw discredit upon the entire petition or upon a sufficient number, the same, in keeping with the presumption above noted, will be held valid. We do not mean to hold that the circulator's affidavit can be dispensed with, but that technical defects therein will not destroy the petition. Nor is the conclusion to which we have here come wanting in sanction in the statute. Section 3694, Comp. Laws 1909, contained in the act along with the other provisions of this law, provided as follows:"
The protest, in my judgment, is insufficient in that it fails to state facts sufficient to state a cause of action, and in the absence of any evidence on the part of the protestant that there is a probability of the initiative petition being insufficient. Not a line of evidence is offered to support the allegations in the application for an injunction, and in the face of the fact that this court has held that initiative petitions on their face in the absence of proof is presumptively established. This court is asked to overcome this presumption without a line of evidence, and to issue an injunction that has for its purpose interference with an election.
In the case of Cress v. Estes et al., 43 Okl. 213, 142 P. 411, this court, in the second paragraph of the syllabus, stated: "The power to propose and adopt a proposition of any nature and to amend their Constitution is vested in the people of the state, and in the exercise of such power they constitute the legislative branch of the government and are not subject to interference or control by the judiciary."
Time and again the Supreme Court of Oklahoma has held that the court has no power to interfere with the holding of an election.
I concur in the majority opinion for the reason that this court has no authority or jurisdiction directly or indirectly to interfere in matters of a purely political nature.
It was admitted by the attorney for the protestant seeking the injunction that an injunction could not be granted against holding the election, but that an injunction granted against the state auditor and the election board would have the same effect. The protestant was seeking to secure an injunction that would prevent the free exercise of suffrage by the people of the state of Oklahoma in an election called by the Governor of this state to be held on December 18, 1931.
The Constitution of Oklahoma, section 1 of article 2, provides: "All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States."
I am of the opinion that this court, and its existence as a court, depends upon the will of the people in this state. We are not masters and cannot control, nor deny the people the right to vote, nor have we jurisdiction or authority over matters of a purely political nature.
We are authorized by the Constitution to pass upon civil or property rights of the people of Oklahoma, and then only when our jurisdiction is invoked in a manner prescribed by law. We have neither legislative nor executive power. The court over which we preside was created by the Constitution, and each member of this court was commissioned by the people of Oklahoma to perform certain duties prescribed and limited by the Constitution of Oklahoma. We have no authority nor jurisdiction beyond the limitations imposed upon us by the Constitution of Oklahoma, the great charter of the people's liberties.
Section 4 of article 2 of the Constitution provides: "No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right."
Under this section of the Constitution we have no authority to interfere with the free exercise of the right of suffrage to those entitled to such right, and every qualified voter in Oklahoma is entitled to such right; and to grant an injunction prohibiting or interfering in any way with the election called would be an attempt to prevent the free exercise of the right of suffrage.
Section 7 of article 3 of the Constitution provides: "No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace, be privileged from arrest during their attendance on elections and while going to and from the same."
Under this section of the Constitution, it is an inhibition against this court to attempt in any way, either directly or indirectly, to interfere with the rights of the people. This Constitution is binding on this court. We must not assume that the Supreme Court is the supreme power in the state of Oklahoma.
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