State Ex Rel. Williamson v. Carter , 177 Okla. 382 ( 1936 )

This is an original proceeding in this court instituted by petitioners, four citizens of the state, to compel by writ of mandamus the Secretary of State, the Board of Public Affairs, and the State Election Board to do and perform the necessary things to submit to the people an initiated constitutional amendment, being State Question No. 222, Initiative Petition No. 151, at the run-off primary to be held on July 28th. The Governor has not by proclamation ordered the submission of said measure, but all other and prior necessary steps in the initiating of said measure have been properly taken by the proper officers and by the signers of said initiative petition. The question being publici juris, this court assumed original jurisdiction.

This cause was argued orally without briefs on July 13, 1936, and memorandum briefs have been filed by the parties herein. Due to the shortness of time in which this court is required to act in order effectively to determine the rights of the parties before July 28th, the date of the run-off primary election at which the question is sought to be submitted, neither the attorneys nor the court has had sufficient time to make an exhaustive study of the question involved.

We are not herein concerned with the validity of a measure approved at the polls by the people either with or without a proclamation issued by the Governor submitting said question to the people. The question with which we are confronted is whether or not by writ of mandamus this court should require the State Election Board to place said initiated measure on the ballot and submit the same for consideration of the people of the state on July 28th at the run-off primary to be held at that time.

It is contended by petitioners that said run-off primary is the "next election held throughout the state" within the meaning of section 3, article 5, of the Constitution, which provides as follows:

"All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference."

Petitioners rely upon the cases of Atwater v. Hassett,27 Okla. 292, 111 P. 802, and Looney v. Leeper, 145 Okla. 202,292 P. 365. The former case is not controlling. The question under consideration in that case was whether or not an initiated measure was valid when it had been approved by the requisite vote at a primary election pursuant to proclamation by the Governor submitting the same at said primary election, or whether or not the same was invalid by reason of the fact that same was not submitted at a general election instead of said primary eletion. Special attention was called to the fact that "the Governor issued his proclamation calling an election for said date." The opinion holds only that the primary election was "an election held throughout the state." But the particular question involved herein was not therein determined.

Nor is the case of Looney v. Leeper, supra, controlling. Petitioners rely upon a statement contained in the body of the opinion wherein it is stated that under article 5, section 3, of the Constitution, the next election would include a state-wide primary election. The language so used was dictum.

There is no case by this court which has definitely attempted to construe said section. In the case of Simpson v. Hill,128 Okla. 269, 263 P. 635, this court, after quoting said section, said:

"It is clear that such initiative measures must go to the next regular general election held throughout the state, unless the Governor or the Legislature shall order that it be submitted at a special election. The election of October 2, 1923, was a special election."

The facts of said case, however, distinguish it from this case. Nor is the case of State ex rel. Babb, County Attorney, v. Matthews, 134 Okla. 288, 273 P. 352, determinative. In that case there was a proclamation by the Governor submitting the measure.

At the time of the adoption of the Constitution, great consideration was given to the question of popular election of public officials. The Constitution required the Legislature to pass a mandatory primary law. Section 5, article 3, Const. However, it has been well recognized not only in this state, but by the highest courts of other states, that there is a wide distinction between "election" and a primary election, the latter being statutory methods provided for the selection of representatives of the various political parties in the "elections" provided by the Constitution for the selection of the various state, county, and other public officers.

In the early case of Ex parte Wilson, 7 Okla. Crim. 610,125 P. 739, quoted from with approval by this court in Dancy v. Peebly, 132 Okla. 84, 270 P. 311, the Criminal Court of Appeals recognized the distinction between elections and primary elections, and in syllabus 5 said:

"Article 3, secs. 1, 4a, and 7 (par. 42, 46, and 49, Williams' Const.), prescribing the qualifications of electors and guaranteeing their right to vote, applies to the election of public officers, and not to the selection of party nominees at a primary election. A 'primary election' is one for the nomination of candidates of the respective political parties by the members thereof."

In Leu v. Montgomery, 31 N.D. 1, 148 N.W. 662, it is said:

"But a primary election is not an election within the meaning of such constitutional provision (section 47, of the state Constitution, which provides that each house of the Legislature shall be the judge of the election returns and qualifications of its own members), nor within the common acceptation of the term. It merely takes the place of the former nominating conventions, and it is improper to say that the successful candidate at such primary is elected to any office. He is merely placed in nomination as a candidate for election to the office."

See, also, Walton v. Olson (N.D.) 170 N.W. 107.

In the case of State ex rel. Hatfield v. Carrington,194 Iowa 785, 190 N.W. 390, it is said:

"A primary election is not an election within the meaning of the Constitution, nor under the common law, but is purely a legislative creation that involves neither life, liberty, property, nor franchise, and is enacted solely for the benefit of orderly procedure in the administration of political parties, whereby each may select candidates to be submitted to the electors at the general election."

See, also, Charles v. Flannary, 192 Ky. 511, 233 S.W. 904; Koy v. Schneider, 110 Tex. 369, 221 S.W. 880; Hamilton v. Davis (Tex. Civ. App.) 217 S.W. 431; Dooley v. Jackson,104 Mo. App. 21, 78 S.W. 330; State v. Selvig, 170 Minn. 406,212 N.W. 604.

While it is true that primary elections are held at fixed and regular times, it is equally true that under the provisions of our runoff primary law, a run-off primary election may not necessarily be held in each and every precinct in the state. The purpose of the constitutional provision was to submit initiated measures at a time when the people of all political parties were permitted to congregate at a particular time and place in the orderly conduct of their government. By candidates withdrawing from the party primaries, it is possible that there would be an entire absence of contesting candidates for public offices.

It is no answer to say that under the facts presented herein, a run-off primary will in fact be held in each and every precinct in the state. That such is the case in a given instance throws no light upon the meaning of the language used by the makers of the Constitution. But the fact that a possibility arises where there will be no necessity for an election in a particular precinct is indicative that the makers of the Constitution did not have in mind a primary election or a run-off primary election when they used the words "next election held throughout the state," but had in mind the next election whereat the voters choose their public officers.

We are therefore of the opinion that as used in section 3, article 5, the words "next election held throughout the state" have the same meaning as the "next regular general election" as used in section 1 of article 24 of the Constitution. This has been the administrative construction of said section since the adoption of the Constitution. This is apparently the construction by legislative act passed in 1916, being section 5893, O. S. 1931, specifically providing that "the Governor shall have power, in his discretion, to call a special election to vote upon questions, or to designate the mandatory primary elections as a special election for such purpose."

The run-off primary not being the next regular general election, and the Governor not having issued a proclamation submitting said initiated measure for a vote, it follows that the Election Board is not authorized to submit the same at said election, and the writ of mandamus should be, and is hereby, denied.

McNEILL, C. J., and WELCH, CORN, and GIBSON, JJ., concur.

RILEY, BAYLESS, BUSBY, and PHELPS, JJ., dissent.