Initiative Petition No. 281, State Question No. 441, In re

• Decision Date: 14 November 1967
• Docket Number: No. 42473,42473
• Citation: 434 P.2d 941,1967 OK 230
• Parties: In re INITIATIVE PETITION NO. 281, STATE QUESTION NO. 441. David YOUNG, Fred L. Patrick, Suzanne Knock, Jack I. Gaither, and Sylvia Ray, Appellants, v. John ROGERS, Secretary of State of the State of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

Page 941

434 P.2d 941

1967 OK 230

In re INITIATIVE PETITION NO. 281, STATE QUESTION NO. 441 David YOUNG, Fred L. Patrick, Suzanne Knock, Jack I Gaither, and Sylvia Ray, Appellants, v. John ROGERS, Secretary of State of the State of Oklahoma, Appellee.

No. 42473.

Supreme Court of Oklahoma.

Nov. 14, 1967.

Syllabus by the Court

1. The 'appeal' from a decision of the Secretary of State to the Supreme Court under the provisions of 34 O.S.1961, § 8 is a transference of the proceeding to this court for a trial de novo.

2. Alleged errors of Secretary of State in finding an initiative petition to be in the form required by the statutes of Oklahoma and to contain sufficient signatures is merged in the proceedings on appeal to this court. Protestants to such a petition are awarded full relief in this court in a trial de novo.

3. The primary purpose of Initiative Petition No. 281, under attack in this proceeding, is to secure a vote of the people approving or rejecting a proposed amendment to the Oklahoma Constitution creating a new Judicial department for the state. The fact that such proposal, if approved, would repeal an existing Article of such Constitution is immaterial in this proceeding as it does not affect the validity or sufficiency of such initiative petition.

4. The ninety (90) day period within which signed copies of an initiative petition must be filed with the Secretary of State, as provided by 34 O.S.1961, § 8, commences to run with the pre-circulation filing of a true and exact copy of such petition bearing the same initiative petition number and state question number as appear on the signed copies and the validity of such petition is not affected by the pre-circulation filing of a copy of an initiative petition bearing a different number and a different state question number notwithstanding such petitions may be exactly identical in other respects.

5. Provision in Section 2 of Article V of the Oklahoma Constitution relating to initiative petition, requiring that in order for the same to be sufficient it must be signed by a number of legal voters equal to at least fifteen per centum of 'the total number of votes cast at the last general election for the State office receiving the highest number of votes at such election;', refers to the last general election preceding the filing of such petition which has thereon the requisite number of signatures.

6. Acts of circulators of initiative petition are presumed to be legal and not fraudulent and such a petition will not be declared invalid upon a mere allegation that some of the signers thereto may have been misled by statements of the circulators concerning the purpose or effect of the proposed law or constitutional amendment.

7. The oath of a circulator of an initiative petition is sufficient if he personally appears before a Notary Public and affixes his signature to the affidavit in the presence of such officer under circumstances from which it may be reasonably inferred that each of the notaries public involved knew that an oath was required by the circulators; and that the circulator himself was cognizant of the effect of the statement to be signed and was aware that it was an oath. It is not necessary that the one taking the oath hold up his hand and repeat any particular oath--nor is it necessary that the Notary Public call the affiant's attention to the legal effect of the instrument he is signing, that is, in the absence of a showing that such affiant was not aware of the legal effect of the statement signed by him.

8. The fact that certain individual citizens who presented either the unsigned or signed copies of the initiative petition for filing with the Secretary of State were identified as representing some corporation does not affect the validity or sufficiency of such petition.

Original proceeding, brought by David Young, Fred L. Patrick, Suzanne Knock, Jack I. Gaither and Sylvia Ray, on behalf of themselves and all other protestants, on appeal from the decision of the Secretary of State in Initiative Petition No. 281, State Question No. 441.

Petition adjudged valid and sufficient.

Paul W. Brightmire, Tulsa, John W. Young, Sapulpa, for appellants.

LeRoy Blackstock, J. C. Joyce, Dwayne C. Pollard, Tulsa, James E. Work, Oklahoma City, for appellee.

LAVENDER, Justice:

This proceeding, expressly based upon the provisions of 34 O.S.1961 § 8, involves the sufficiency of Initiative Petition No. 281 as filed with the Secretary of State on November 21, 1966, bearing a total of 142,377 signatures. Said initiative petition asks that a proposed amendment to the Constitution of the State of Oklahoma, repealing Article VII thereof and establishing in lieu thereof a new Article VII, relating to the Judicial Department of the state, be submitted to the people of the state for approval or rejection.

Protests against the petition were filed with the Secretary of State by the appellants herein, and others who did not join in this proceeding. After a hearing thereon, the Secretary of State on April 26, 1967, entered his official decision that the initiative petition is in the form required by the statutes of this state and bears an adequate number of signatures. The appellants gave the written 'notice of appeal' provided for in Section 8, supra, and filed in this court a document denominated a 'petition for appellate review,' in which they prayed that this court remand the matter to the Secretary of State for a proper hearing because of alleged errors committed by the Secretary of State, or, in the alternative, that a hearing de novo be had in this court (and the initiative petition be declared insufficient by this court).

Before discussing the various grounds which appellants allege furnish sufficient reasons why this court should declare the petition invalid, we deem it appropriate to consider the above mentioned alternative prayer for relief as contained in appellants' petition for appellate review, that is to say, the prayer that this court remand this cause to the Secretary of State for further proceedings.

Although this court has in fact heard this matter de novo, one of the alternatives prayed for by appellants, the appellants contend that we should remand the proceedings to the Secretary of State because appellants were deprived of a full and complete hearing before that officer by reason of the latter having committed errors in rendering his decision on the question of the sufficiency of the petition.

The proceeding in this court, authorized by 34 O.S.1961 § 8, is not appellate in character, but is a transference to this court by the Secretary of State of all the papers and documents on file in his office relating to the initiative or referendum petition for an original investigation and hearing de novo. In re Initiative Petition No. 23, State Question No. 38 (1912) 35 Okl. 49, 127 P. 862. In the 1956 case of In re Initiative Petition No. 260, State Question No. 377, Okl., 298 P.2d 753, the Secretary of State held the petition sufficient after stating that the protestant had not filed a proper protest. On 'appeal' to this court under the above quoted provisions of 34 O.S.1961 (then 1951) § 8, the appealing protestant argued that he had been denied a hearing before the Secretary of State, and demanded that the matter be remanded to the Secretary of State for a hearing. In refusing to remand the matter, this court, after stating that the 'appeal' to this court is from the final ruling of the Secretary of State for a trial de novo, stated:

'A trial de novo means trial of the entire case anew. Smith v. Bruner's Guardianship, 111 Okl. 93, 238 P. 448, 12 Words and Phrases, De Novo, p. 107. A trial de novo means a complete new trial on both law and fact. On appeal, as here, it would be inconsistent to remand a proceeding back to the Secretary of State to require him to fulfill some duty that he might have omitted to perform. Mandamus, and not appeal, would have been the proper remedy.'

and, in the second paragraph of its syllabus, held that the error, if any, made by the Secretary of State in finding the protest insufficient is merged in the proceeding on appeal, and that the protestant is awarded full relief in a trial de novo in this court.

Anyway, the papers and documents transmitted to this court by the Secretary of State in this case disclose that these appellants introduced the depositions of certain witnesses, and entered into a stipulation with the proponents of the initiative petition by which it appears the appellants agreed that the depositions and stipulation constituted all of their evidence with respect to specific signature challenges and challenges to the sufficiency of the petition; further, that the proponents and protestants rested their cases before the Secretary and submitted the matter to the officer for his decision.

The appellants' demand therefore that the matter be remanded to the Secretary of State for that officer to further consider the matter is not well taken.

On July 11, 1967, the people of the State, at an election held for that purpose on that date, approved a proposal by the 1967 Session of the Legislature, contained in its House Joint Resolution No. 508, amending the Oklahoma Constitution by repealing Article VII thereof, and establishing in lieu thereof a new Article VII, relating to the Judicial Department of the State. Shortly thereafter, the appellants filed in this proceeding a motion for summary judgment, nullifying said Initiative Petition No. 281, on the theory that the Article VII of the Constitution that would be repealed under that initiative petition was Article VII as it existed at the time such petition was circulated in 1966, and it was repealed by the people of the state at said election of July 11, 1967, thus rendering Initiative Petition No. 281 wholly ineffective to accomplish the purpose of those who signed such petition. By its order entered herein on September 11, 1967, ...