State v. Morris

• Decision Date: 20 July 1920
• Docket Number: 10702.
• Citation: 191 P. 364,79 Okla. 89,1920 OK 264
• Parties: STATE EX REL. GILL v. MORRIS, SECRETARY OF STATE.
• Court: Oklahoma Supreme Court

191 P. 364

79 Okla. 89, 1920 OK 264

STATE EX REL. GILL v. MORRIS, SECRETARY OF STATE.

No. 10702.

Supreme Court of Oklahoma

July 20, 1920

Syllabus by the Court.

Referendum provisions of state Constitutions and statutes cannot be applied in the ratification or rejection of amendments to the federal Constitution without violating the requirement of article 5 of such Constitution that such ratification shall be by the Legislatures of the several states or by conventions therein, as Congress shall decide.

Original proceedings in mandamus by the State, on the relation of Warren P. Gill, against Joe S. Morris, as Secretary of State. Writ denied.

Stuart Cruce & Cruce, of Oklahoma City, for complainant.

S. P Freeling and E. L. Fulton, both of Oklahoma City, for respondent.

KANE J.

This is an original proceeding in mandamus commenced by the complainant for the purpose of securing an order commanding the respondent, as Secretary of State, to file a certain referendum petition, which seeks to submit Senate Concurrent Resolution No. 2, which ratifies the joint resolution of the Congress of the United States proposing the prohibition amendment to the federal Constitution, to a vote of the people, pursuant to the referendum clause of the state Constitution. The respondent, as Secretary of State, refused to receive the referendum petition or to file the same in his office or to transmit the same to the Attorney General, to provide a ballot title as provided by state law, upon the following grounds which are indorsed on the petition:

"Filing within petition is hereby refused and rejected for the reason that the 1919 session of the Legislature of Oklahoma, under its constitutional powers, by Senate Concurrent Resolution No. 2, ratified the joint resolution of the Congress of the United States, proposing the prohibition amendment to the Constitution of the United States, thereby binding the state of Oklahoma; and, which action of said Legislature is final and in conformity with the Constitution of Oklahoma, and the said resolution of the Congress of the United States, and not subject to reference to the people by referendum petition."

The prohibition amendment was proposed by the Congress pursuant to that part of article 5 of the federal Constitution, which provides, in substance, that the Congress, whenever two-thirds of both Houses deem it necessary, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part of the Constitution, when ratified by the Legislatures of three-fourths of the several states; and the concurrent resolution of the Legislature which is sought to be referred was passed for the purpose of ratifying this proposed amendment.

The contentions of the Attorney General, in behalf of the respondent, are summarized by him in his brief as follows:

"First. In adopting article 5 of the federal Constitution, wherein it is provided that the Constitution might be ratified 'by the Legislatures of three-fourths of the several states, or, by conventions in three-fourths thereof,' the intention and purpose of the constitutional convention was to exclude the people of the various states from voting directly upon amendments to the Constitution and to give such right only to their representatives in the Legislature, or in a convention called for the purpose of ratifying the amendment. That is, the word 'Legislature,' as used in this article, refers to a representative

...