State ex rel. Hayman v. State Election Bd., Case Number: 27675
| Decision Date | 26 October 1937 |
| Docket Number | Case Number: 27675 |
| Citation | 1937 OK 617,75 P.2d 861,181 Okla. 622 |
| Parties | STATE ex rel. HAYMAN et al. v. STATE ELECTION BOARD |
| Court | Oklahoma Supreme Court |
¶0 1. CONSTITUTIONAL LAW - Amendment Proposed by Legislature - Necessary Approval by Majority of Electors Voting at Election.
An amendment to the Constitution proposed by the Legislature under the provisions of section 1, article 24, of the Constitution and submitted to the electorate of the state at a regular general election is not effective unless it is approved by a majority of the electors voting at such election.
2. SAME - Writ of Certiorari to State Election Board to Review Its Action in Certifying Defeat of Constitutional Amendment Changing Method of Selecting Board of Regents for State A. & M. Colleges - Showing by Relators, Held Insufficient for Issuance of Writ.
An amendment to article 6, section 31, of the Constitution was proposed by the Legislature and submitted to the electorate of the state at a regular general election held throughout the state on November 3, 1936 (see Laws 1935, p. 402, House Joint Resolution No. 34). The State Election Board, after tabulating the returns from the various counties of the state, certified that the measure had failed of adoption. Relators, as citizens and taxpayers of the state, in this action, seek to review the action of the State Election Board by writ of certiorari. Held, that, since the pleadings and evidence fall to disclose that said measure received an affirmative vote equal to a majority of the electors voting at said election, relators are entitled to no relief.
Application by the State on relation of Roy E. Hayman et al. for writ of certiorari to the State Election Board. Writ denied.
Silverman & Rosenstein, Theodore Rinehart, Stanley D. Campbell, and W.J. Holloway, for plaintiffs.
Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for defendant.
Win. M. Franklin, amicus curiae.
¶1 This is an original action instituted in this, court in the name of the state of Oklahoma, on relation of Roy E. Hayman, and seventeen other plaintiffs, as the officers and directors of Oklahoma A. & M. College Former Students Association, against the State Election Board, and Albert Hunt, Charles D. Campbell, and J. Wm. Cordell, individually, and as the members composing said State Election Board, wherein it is sought to review by certiorari the records and proceedings of the State Election Board with reference to the result of the regular general election held throughout the state on November 3, 1936, so far as State Question No. 210, Legislative Referendum No. 68, is concerned.
¶2 There is no dispute in regard to the essential facts. The measure, involved was proposed by the 15th Legislature land was submitted to the electorate of the state at the general election held November 3, 1936. It appeared upon the ballot as State Question No. 210, Legislative Referendum No. 68, under the following ballot title:
"To amend Article 6, Section 31, of the Constitution of Oklahoma so as to relieve the State Board of Agriculture of its duties as a Board of Regents for the Oklahoma Agricultural and Mechanical College, and schools, and to create and provide for the appointment of a separate Board of Regents for said colleges and schools to be composed of nine members, removable only by impeachment or court procedure, and with the term of office of one member of said board expiring each year."
¶3 The proposed measure received an affirmative or "yes" vote totaling 379,405, and a negative or "no" vote totaling 219,996. The State Election Board certified that the referred measure did not receive the requisite vote, and therefore failed of passage. The highest total vote cast and counted at said election for any office or measure for which all the electors of the state were entitled to vote was a total of 749,740, the same being the total vote cast and counted at said election for Presidential Electors. The total number of ballots issued at said election throughout the respective precincts of the state, after deducting the spoiled ballots, was 767,745, which figure was used by the State Election Board to represent the number of voters voting at such election and the number that must be taken into consideration in determining whether the measure lost or carried. It is noted that the number of affirmative votes cast for the measure is less than one-half of this figure, but it is the contention of the relators that the highest total vote cast and counted for any office or measure determines the number of electors voting at such election, within the meaning of the Constitution, and that said measure, having received a majority of the number of votes cast for Presidential Electors, the State Election Board erred in certifying that the measure failed of adoption.
¶4 At the outset it is contended that relators, being residents and taxpayers, cannot maintain this action; that certiorari will not lie to review the action of the State Election Board for the reason that said State Election Board in canvassing the returns and declaring the result of said election acted purely in an administrative or ministerial capacity and that the writ of certiorari will lie only to review judicial or quasi judicial acts.
¶5 Under the view we take of this case, it is unnecessary for us to discuss or determine these interesting questions, for we are of the opinion that, under the pleadings and stipulated facts herein, the relators are not entitled to relief.
¶6 It suffices to say that courts are invested with jurisdiction to determine, in a proper Proceeding, whether the Constitution has been amended. McConaughy v. Secretary of State (Minn.) 119 N.W. 408; 12 C. J. 880; 6 R. C. L. 32.
¶7 Section 1, article 24, of the Constitution provides as follows:
¶8 From an early day in the history of our state it has been determined (In re Initiative Petition No. 2, 26 Okla. 548, 109 P. 823) that an amendment to the Constitution submitted to the people, in order to become effective, "must be approved by a majority of the electors voting at such election," and not by a majority of those voting on the amendment itself, nor by a majority of the electors voting for any particular candidate. By the provisions of section 3, article 5, of the Constitution, relating to the initiative and referendum, the duty was enjoined upon the Legislature, to enact suitable measures for carrying into effect the initiative and referendum.
¶9 While, it is conceded that under the Constitution a submitted amendment, to become effective, must receive a vote, equal to a "majority of all the electors voting at such election," difficulty arises in making a determination of the total number of electors voting at such election. The Legislature of 1910, in aid of the Constitutional provisions above mentioned, and in order to effectuate the purpose of clarifying and carrying into effect the provisions of the initiative and referendum, enacted what is now section 5886, O. S. 1931, which provides as follows:
¶10 It will thus be seen that it is the duty of the official counters of each precinct to transmit to the county election board "a certificate of the total number of electors voting in such election; and the county election board shall keep a record showing such total number of votes cast in each of such precincts as shown by such returns." It is then made the duty of the county election board to transmit to the State Election Board "a certificate, showing the total number of votes cast at any such election." Section 5899, O. S. 1931, provides:
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