State Ex Rel. Hayman v. State Election Board , 181 Okla. 622 ( 1937 )

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.

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."

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.

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.

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.

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 Rawle C. L. 32.

Section 1, article 24, of the Constitution provides as follows:

"Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by A two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution.

"If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately."

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.

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:

"Whenever any measure or proposition is submitted to a vote by the initiative or referendum, it shall be the duty of the official counters of the precinct to make and transmit to the county election board the returns thereof in the dame manner that they make their returns in the case of an election of public officers, transmitting to such county election board acertificate of the total number of electors voting in suchelection; and the county election board shall keep a recordshowing such total number of votes cast in each of suchprecincts as shown by such returns. Should the proposition be one covering the state at large, or any district therein, or be of such other nature as to require it, the county election board shall certify the result of such election to the State Election Board in the same manner as it certifies the result of election for public officers, and such county election boardshall transmit to the State Election Board a certificateshowing the total number of votes cast at any such election. It shall be the duty of the State Election Board to keep a record of all such election returns made to it under the provisions of this section."

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:

"It shall be the duty of the election officers to make out separate abstract sheets upon which the returns relating to proposed amendments shall be certified, each proposition appearing in an abstract to itself. It shall be the duty of the State Election Board to certify to the Governor, immediately upon receipt of all the returns upon any proposition, the result thereof, and upon receipt of such certificate from said board it shall be the duty of the Governor to issue hisproclamation giving the whole number of votes cast in the stateor any district and declaring the results of the vote upon theproposition."

It is insisted by the State Election Board that the precinct counters furnished to the county election boards certificates showing the number of ballots issued, and certificates showing, under the provisions of section 5722, O. S. 1931, the number of ballots spoiled or not voted, and that the county election boards furnished like certificates to the State Election Board, and the State Election Board contends that by subtracting the spoiled ballots from those issued the number of voters voting at the election will be correctly determined and that this constitutes a substantial compliance with the above statutory provisions.

It was the intention of the Legislature, in enacting the above-quoted provisions, to make more definite and certain the precise method to be used by the State Election Board in determining the result of an election upon an initiated or referred measure. If the counters in the various precincts had furnished the certificates provided for by section 5886, supra, and if the county election boards had furnished the certificates to the State Election Board as required by said section, the State Election Board could promptly, by the mere process of tabulation, determine the result of such election upon an initiated or referred measure. By the provisions of section 5811, O. S. 1931, "such certificates, when properly certified to, shall be prima facie evidence of the correctness of the result in the several counties."

It appears that at least since 1916 the administrative method of determining the number of "electors voting at such election" in the various elections at which constitutional amendments have been voted on has been the method used in the election under consideration herein, — that is, the number of ballots issued to electors, less the number of spoiled ballots. Although this administrative construction of an ambiguous constitutional provision has been followed by the election board for more than 20 years, relators have not sought relief in the various forums to require a certification of the returns upon any different method of determination of the controversial question. Instead, they seek to ignore the certificate furnished by this method by asserting that the highest vote actually cast and counted throughout the state for any office or measure for which all the electors of the state are entitled to vote is the true criterion for determining the result of an election on a state-wide question.

Under this suggested method, no elector would be considered who did not vote on the office or measure receiving the highest vote, thereby eliminating many voters who, in the instant case, voted only state county, or precinct ballots. The inaccuracy land fallibility of this method are conspicuously apparent. They assert that this number should arbitrarily be considered as representing the number of "electors voting at such election." This is predicated upon a presumption which is significantly contrary to the actual and admitted facts as presented in this case. By this method every voter appearing at the polls who did not see fit to cast a vote for Presidential Electors, but who may have voted for every other state officer, or county or precinct officer, or on the submitted amendment itself, is eliminated from consideration as an "elector voting at such election." This is in direct discord with the theory conceded by all parties to this proceeding that every voter appearing at the polls and casting a vote for or against any candidate or measure submitted is to be considered in determining the total number of "electors voting at such election." It appears from a certificate filed herein, made pursuant to special order of this court, that "the total vote cast and counted at the regular election of November, 1936, as computed and compiled from the highest vote cast and counted in each precinct for any office or measure, either national, state, county or precinct, as shown by the county election boards of the several counties of the state, is 760,055." Relators contend that there are errors in said certificates in that in 81 precincts, scattered throughout various counties of the state, they have ascertained by an individual investigation, and by evidence aliunde the election returns, that a less number of voters voted in said precincts than were certified by the county election boards to the State Election Board. However, relators point out no statutory proceeding for correcting such certificates, either by proceedings before the State Election Board or in any other manner. Should there be such errors, certainly this court in this kind of proceeding is not the forum for correcting such errors. For this court to enter upon a determination of such questions, many additional parties, other than the State Election Board, would be necessary parties to this proceeding, and this action, which relators denominate a writ of certiorari (which we do not determine), would be resolved into a glorified election contest, casting doubt and uncertainty upon the result of the canvass of the votes as to every state officer and state question upon which the people of the state as a whole vote. We cannot concede that such evidence aliunde is permissible in this proceeding in this forum. It will be noted that, whether we take the ballots issued, less the ballots spoiled, as the method for determination of the number of "electors voting at such election" or whether we take the highest vote cast and counted for any office or measure in the various precincts of the state, as certified by the State Election Board, the measure failed to receive votes equal to "a majority of all the electors voting at such election" as provided by section 1, article 24, of the Constitution.

It is urged that the Nebraska court in the case of Tecumseh National Bank v. Saunders, 71 N.W. 779, has held contrary hereto. A careful reading of that case discloses that the question involved herein was not considered in that case. The same is likewise true of the Arkansas case of Rice v. Palmer, 96 S.W. 396. The Mississippi case of State v. Brantley, 74 So. 662, on its face shows that there was no determinative rule of law intended to be laid down therein. Therein the court said:

"Inasmuch as a majority of the court are not agreed upon any one of the many constitutional points argued and considered, and therefore no legal principle can be conclusively settled at this time, we shall forego or waive any elaborate discussion of the merits or demerits of any one of the many contentions made or constitutional questions argued."

Thus we find no state has deliberately adopted the theory of relators as a rule for determining the number of electors voting at a certain election.

It is fundamental that those who seek an extraordinary writ from a court must disclose, in a proper and legal way, that they are clearly entitled to such writ. From what we have hereinabove said, it appears that relators have not shown that the proposed constitutional amendment received a vote equal to "a majority of all the electors voting at such election." Having failed in this necessary requirement, it follows that they are entitled to no supervisory writ from this court.

Writ denied.

BAYLESS, V. C. J., and WELCH, PHELPS, CORN, GIBSON, and DAVISON, JJ., concur. RILEY and HURST, JJ., dissent.