Threadgill v. Cross

• Citation: 1910 OK 165,109 P. 558,26 Okla. 403
• Decision Date: 10 May 1910
• Docket Number: Case Number: 1452
• Parties: THREADGILL et al. v. CROSS, Secretary of State.
• Court: Supreme Court of Oklahoma

1910 OK 165

109 P. 558

26 Okla. 403

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

Case Number: 1452

Supreme Court of Oklahoma

Decided: May 10, 1910

Syllabus

¶0 MANDAMUS--Secretary of State-Ministerial Duties--Filing Initiative Petitions. In a mandamus proceeding to compel the Secretary of State to perform the purely ministerial duty imposed upon him by the statute and the Constitution to file initiative petitions for the submission of an amendment to the Constitution to a vote of the people, respondent will not be permitted, as a part of his defense, to question the validity of such proposed amendment upon the ground that it is violative of an act of Congress, the terms and conditions of which have been accepted by the state, and for that reason will be void, if adopted.

Application by John Threadgill and Henry Braun for writ of mandamus to Bill Cross, Secretary of State. Writ awarded.

Gutherie & Cardwell and Stuart, Gordon & Liedtke, for plaintiffs.

H. T. Laughbaum and Devereux & Hildreth, for defendant.

HAYES, J.

¶1 This is an original proceeding in this court for a writ of mandamus to the Secretary of State ordering and directing him to file certain initiative petitions requesting that a certain proposition entitled: "An act proposing an amendment to the Constitution of the state of Oklahoma, by amending section 7, article 1, of the Constitution, repealing the separate article of said Constitution relating to prohibition, submitted by the Constitutional Convention to the people of the proposed state of Oklahoma at the election held on September 17th, 1907, and adopted by the people," be referred to the electors of the state for their approval or rejection, which petitions the Secretary of State has refused to file.

¶2 Respondent in his return to the alternative writ sets up as his defense and only reason why he has refused to file said initiative petitions tendered to him by the relators for filing that at the time of the admission of the territory of Oklahoma and Indian Territory to statehood the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) required the Constitutional Convention of the proposed state of Oklahoma to pass by an ordinance irrevocable provisions prohibiting the sale of liquors in that part of the state formerly Indian Territory for a period of 21 years, and thereafter until the people of the state should otherwise provide; that the Constitutional Convention did accept this provision of the enabling act by an ordinance irrevocable. For this reason he contends that the proposed amendment to the Constitution, if submitted to the people and ratified by them, would be void. He also contends it would be void for the further reason that certain treaties entered into by the United States with the Indian tribes prohibiting the sale of liquors in the territory formerly occupied by the Five Civilized Tribes are still in force in that territory, and that the acts which it is sought by this petition to require him to perform would tend to violate said treaties.

¶3 Section 3 of the act of Congress approved June 16, 1906, commonly known as the "Enabling Act" (chapter 3335, pt. 1, 34 Stat. 367), required the Constitutional Convention of the proposed state of Oklahoma to provide in the Constitution to be prepared and submitted by said convention that the manufacture, sale, barter, or giving away or otherwise furnishing, except as otherwise provided in the act, of intoxicating liquors within those parts of the proposed state known as the Indian Territory and the Osage Indian reservation and within any other parts of the said state which existed as Indian reservations on the 1st day of January, 1906, shall be prohibited for a period of 21 years from the date of the admission of the state into the Union, and thereafter until the people of the state shall otherwise provide by amendment of the Constitution and proper state legislation. Section 22 of the same act provides that the Constitutional Convention shall by ordinance irrevocable accept the terms and conditions of the act. The Constitutional Convention did accept the terms and conditions of this act as required by said section, and, in full compliance therewith, adopted as a part of the Constitution section 7, art. 1, which is almost in the exact language of the enabling act, relative to the prohibition of the sale of intoxicating liquors in certain parts of the state.

¶4 There is no difference between counsel upon the questions of law which this proceeding presents for our determination. Those questions are as follows: First Will the proposed amendment which relators seek to have referred to the people of the state for their approval or rejection be void if ratified by the people, because it is in conflict with the terms and provisions of the enabling act? Second. May respondent in this proceeding for mandamus to compel him to perform a purely ministerial duty set up as a defense that said proposed amendment will be void if ratified?

¶5 Since it will be unnecessary to determine whether the proposed amendment would be void although ratified by the electors, if it be determined that respondent may not plead as a defense the invalidity of the proposed amendment, we shall consider the second question first. Section 11, art. 2, Const. (page 17, Snyder's Constitution of Okla.), being the first section of the Bill of Rights declares that all political power is inherent in the people, and that they shall have he right to alter or reform the government whenever the public good may require it; provided, such change be not repugnant to the Constitution of the United States. The Constitution also provides the procedure by which such alterations in the government may be made. Fifteen per centum of all the legal voters have the right to propose amendments to the Constitution by petition (section 2, art. 5, p. 135, Snyder's Const.), or such change may be proposed by a majority of all members elected to each of the two houses of the Legislature (section 1, art. 24, p. 378, Snyder's Const. Okla.); and, when any amendment proposed by either of said methods has been ratified by a majority of those voting at the election at which it is submitted, it becomes effective. When initiative petitions submitting a proposed measure to the people for their ratification or rejection are offered to the Secretary of State for filing, it is his duty to file same. Section 3675, Comp. Laws Okla. 1909; section 3, art. 5, p. 146, Snyder's Const. Okla. This duty imposed upon the Secretary of State is purely ministerial, and is mandatory. Norris v. Cross, 25 Okla. 287, 105 P. 1000. About the nature of this duty there is no controversy between counsel, and can be none. The validity of the statute or of the constitutional provision which imposes upon the respondent the duty of filing initiative petitions offered by the electors of the state in the exercise of their power to amend the Constitution or to initiate or refer legislative propositions is not questioned, but it is insisted that the Secretary of State, when such petitions are presented to him for filing, has the right to look to the contents of the proposed measure to be submitted to ascertain whether the same, when ratified, will be void because in violation of a compact with the federal government or of the federal Constitution, or some law enacted in pursuance thereof; and, if it will be void for such reason, to refuse to discharge the duty prescribed by the statute.

¶6 Whether respondent in a mandamus proceeding may set up the unconstitutionality of a statute as his defense there is some conflict among authorities. That a provision of a state Constitution or a legislative enactment of a state that violates the Constitution of the United States is no law at all, and binds no one, is too elementary to require argument to establish, but there is another equally well-established and recognized rule that provisions of state Constitutions and statutes are presumed by the court to be valid, until the contrary is made plainly to appear, and that a person who seeks to have such enactment declared unconstitutional must show that his rights are affected by the alleged invalid act, and that he has an interest in defeating it.

¶7 Courts do not lightly declare invalid legislative enactments made by the people or by their authorized representatives. An act of the legislative department of the government is clothed with the presumption that it is valid, and its constitutionality will not be considered and determined by the courts as a hypothetical question. It is only when a decision upon its validity is necessary to the determination of the cause that the same will be considered, and not then at the instance of a stranger, but only upon the complaint of a party whom the alleged invalid act affects. Cooley's Constitutional Limitations (7th Ed.) p. 232.

¶8 In Wellington v. Petitioners, 16 Pick. (Mass.) 87, 26 Am. Dec. 631, Mr. Chief Justice Shaw, speaking for the Supreme Court of Massachusetts, said:

"Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the Legislature, therefore, concurs with well- established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all persons against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of

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