Norris v. Cross

• Decision Date: 07 December 1909
• Docket Number: Case Number: 937
• Citation: 25 Okla. 287,105 P. 1000,1909 OK 316
• Parties: NORRIS et al. v. CROSS, Secretary of State.
• Court: Oklahoma Supreme Court

1909 OK 316

105 P. 1000

25 Okla. 287

NORRIS et al. v. CROSS, Secretary of State.

Case Number: 937

Supreme Court of Oklahoma

Decided: December 7, 1909

Syllabus

¶0 1. STATUTES--Enactment--Referendum Petition--Sufficiency of Filing. When referendum petitions are offered, under the provisions of the act of the Legislature approved April 16, 1908 (Sess. Laws 1907-1908, p. 440, c. 44), to the Secretary of State for filing, and are received by said officer for such purpose, and retained in his custody among the records of his office, the same will be deemed to have been filed although no indorsement of filing is made thereon by said officer, and although he failed to detach the sheets containing the signatures and affidavits, and cause them all to be attached to one or more printed copies of the measure in the presence of the Governor and of the person offering the same for filing as directed by section 3 of said act.

2. STATUTES--Enactment--Referendum Petition--Filing--Mandatory Provisions. The provisions of section 3 of said act requiring the Secretary of State, when any referendum petition shall be offered for filing, to detach, in the presence of the Governor and the person offering the same for filing, the sheets containing the signatures and affidavits, and cause them all to be attached to one or more printed copies of the measure proposed by the referendum petition, are mandatory as to the Secretary of State, but directory as to the public, and the failure of the Secretary of State to perform such duty does not invalidate the petition.

3. STATUTES--Enactment--Referendum--Acts Subject--Constitutional Provisions. The provision of section 1, art. 5, of the Constitution, reserving to the people the "power at their own option to approve or reject at the polls any act of the Legislature" is modified and limited by sections 2, 3, 4, and 58 of said article, so as to apply only to acts which have not become operative.

4. STATUTES--Time of Taking Effect--Initiative and Referendum--Constitutional Provisions--Construction. Section 58, art. 5, of the Constitution provides: "No act shall take effect until ninety days after the adjournment of the session at which it was passed except enactments for carrying into effect provisions relating to the initiative and referendum, or a general appropriation bill, unless, in case of emergency, to be expressed in the act, the Legislature, by a vote of two-thirds of all members elected to each house, so directs. * * *" Held, that the clause of exception reading: "Except enactments carrying into effect provisions relating to the initiative and referendum"--should be strictly construed, and includes only acts whose sole purpose is to carry into effect provisions relating to the initiative and referendum.

5. MANDAMUS--Executive Officers--Ministerial Acts. A writ of mandamus may lawfully issue, from a court having jurisdiction, to compel an executive officer to perform a mere ministerial act, which does not call for the exercise of his judgment or discretion, but which the law gives him the power and imposes upon him the duty to do.

6. MANDAMUS--Executive Officers--Exercise of Discretion. A writ of mandamus may issue to require an executive officer to act and decide even though his act and decision involve an exercise of his judgment and discretion, but it may not direct in what particular way he shall act or decide.

7. MANDAMUS--Secretory of State--Filing Referendum Petition. The duties of the Secretary of State to file referendum petitions when presented to him, and to detach in the presence of the Governor and the person offering them for filing the signatures and affidavits, and cause them all to be attached to one or more printed copies of the measure proposed by the referendum petition, are purely ministerial; and, upon refusal to perform same, he may be compelled to do so by mandamus.

8. MANDAMUS--Secretary of State--Contest of Referendum Petition--Hearing. The power conferred and duty imposed upon the Secretary of State by section 6 of the act of the Legislature approved April 16, 1908 (Sess. Laws. 1907-1908, p. 444, c. 44), whenever a referendum petition shall have been filed with him, to proceed at once to examine into its sufficiency, and, upon objections being filed to the sufficiency thereof, to hear evidence and argument in support of and in opposition to the petition, involve the exercise of judgment which cannot be controlled by mandamus; but if said officer, upon the referendum petitions having been filed with him and objections made thereto, refuses, upon request of the parties filing the petitions, to proceed to hear the protests and examine the sufficiency of the petitions, he may be compelled by mandamus to act and decide, but cannot be directed in what particular way he shall decide.

Petition for mandamus by Joe H. Norris and others against Bill Cross, Secretary of State. Writ granted.

John H. Burford, for petitioners.--Citing: 19 Cyc. 530; Naylor v. Moody, 2 Blackf. (Ind.) 249; Wilkinson v. Elliott, 43 Kan. 590; State v. Hockaday, 98 Mo. 590; Betteson v. Budd, 21 Ark. 578; Railway Co. v. Walton, 42 Fla. 54; Peterson v. Taylor, 15 Ga. 484; 13 A. & E. Enc. L. 13; State Board of Equalization v. People ex rel., 191 Ill. 528; Atty Gen. v. Boston, 123 Mass. 460; State ex rel. v. Railway Co., 19 Wash. 518; Hentz v. Moulton, 7 S. Dak. 272; Comm'rs v. King, 13 Fla. 457; Commw. ex rel. v. Comm'rs, 37 Pa. St. 237; State ex rel. v. Cornwall, 97 Wis. 565; Lewis v. Christun, 101 Va. 135; Mester v. Spartanburg, 68 S. C. 26; State ex rel. v. Auditor, 39 Minn. 426; State ex rel. v. County Judge, 7 Iowa 186; Opinion of the Justices, 68 Me. 587; McCrary on Elections (3d Ed.) sec. 190; State v. Russell, 34 Neb. 116; Jones v. State ex rel., 153 Ind. 440; Railway Co. v. Hall, 91 U.S. 343; Elliott v. Pardee, 65 P. 1087; Good v. Common Council (Cal.) 90 P. 44; Higgins v. Brown (Okla.) 94 P. 703; Stearns v. State (Okla.) 100 P. 909; Palmer v. Benson (Ore.) 91 P. 579; Stevens v. Benson (Ore.) 91 P. 577

W. A. Ledbetter, for respondent.--Citing: Frantz v. Autry (Okla.) 91 P. 193; Mississippi v. Johnson, 4 Wall. (U. S.) 475; Georgia v. Stanton, 6 Wall. (U. S.) 50; Waterworks Co. v. New Orleans, 164 U.S. 471; State ex rel. v. Superior Court (Wis.) 81 N.W. 1046; Gas. Co. v. City of Des Moines, 44 Iowa 505; People ex rel. v. Mills (Colo.) 70 P. 322; State ex rel. v. Thorons, 33 L. R. A. 582; State v. Gates (Mo.) 89 S.W. 881; McMurtry v. Byrd (Okla.) 101 P. 117.

HAYES, J.

¶1 This is an original action in this court in which relators ask for a peremptory writ of mandamus against respondent, as Secretary of State, to compel him to stamp as filed, and to examine and ascertain the sufficiency of certain referendum petitions alleged to have been filed with him, requesting that the act passed by the Second Legislature, known as Senate Bill No. 179, be referred to the people for their approval or rejection. There is but little, if any, controversy about the facts in this proceeding, and it is unnecessary to state in full the pleadings. At the second session of the Legislature there was enacted what is known as Senate Bill No. 179, entitled "An act relating to the time, manner, and means of holding elections," which act was approved by the Governor on the 25th day of March, 1909. Sess. Laws 1909, p. 237, c. 16, art. 1. Within 90 days after the adjournment of the session qualified electors of the state, among whom were relators, delivered to the Secretary of State, at his office, during office hours, for the purpose of being filed, 1,571 pamphlets or petitions containing the request of about 31,000 electors of the state, asking that said Senate Bill No. 179 be referred to a vote of the people for their approval or rejection. No contention is made in this proceeding as to the regularity of the form and contents of said petitions, or that same have not been signed by a sufficient number of electors. Said petitions are in separate pamphlets, and none of them contain more than 20 names. Some of them contain fewer than that number. Each of said petitions contains a copy of the act which petitioners seek to have referred to the people for their approval or rejection. When the petitions were delivered by relators to the Secretary of State for filing, the sheets containing the signatures of the petitions were not detached from the printed copy of the measure proposed to be referred, and all attached to one or more printed copies of said measure, as is directed to be done by section 3 of an act of the Legislature entitled "An act to provide for carrying into effect the initiative and referendum powers reserved by the people in articles 5 and 18 of the Constitution of the state of Oklahoma, to regulate elections thereunder, and to punish violations of this act." Sess. Laws, 1907-1908, p. 442, c. 44. Within the time provided by law persons appeared before the Secretary of State, and made objections in writing to the sufficiency of the petitions, and relators, who are also signers of said petitions, requested the Secretary to hear said objections, and to pass upon the sufficiency of the petitions, but respondent refused to act, giving as his reasons therefor, first, that the petitions had never been filed in his office as required by law; and, second, that the act which the petitions attempt to have referred carries into effect certain provisions of the Constitution relating to the initiative and referendum, and is not for that reason subject to the referendum.

¶2 The propositions which this proceeding presents for our determination are: First. Were the petitions filed with the Secretary of State within the time and in sufficient compliance with the law to require the Secretary of State to proceed to determine their sufficiency, and to act thereon as directed by the statute? Second. Is the act attempted to be referred subject to the referendum? Third. Has this court jurisdiction to direct the Secretary of State by...