Arthur v. City of Stillwater , 1980 Okla. LEXIS 249 ( 1980 )

DOOLIN, Justice,

dissenting:

The vice of the majority opinion, at least to me, is apparent in several respects.

Examination of the eight page transcript made in the trial court reveals there was no adversary hearing nor was a controversy presented, argued or decided. Jurisdiction of a justiciable issue is vested in the district court by Art. VII § 7(a) of our Constitution, and although not as detailed or fully expressed as the Case and Controversy provisions of the United States Constitution, Art. Ill § 2, it (justiciable issue) is nonetheless as necessary.¹

Secondly, 11 O.S.1979 Supp. § 16-113 provides: “. . .if more than one proposition is submitted, they shall be arranged so that each proposition may be voted upon separately.” Not only must the provisions be physically arranged in a separate manner, they must stand separately on their own bottoms and should not be cluttered with extraneous material or cross-references. In the present case, inserted between propositions 2 and 3 was a statement to the effect that all issues must pass to accomplish the purpose of the Bond issue. Examination of the sample ballot shows a cross-reference appearing in proposition 3 to proposition 2. I think the extraneous statement between propositions 2 and 3 and the cross-reference violates the separateness required by 11 O.S.1979 Supp. § 16-113.

I entertain grave doubts that the provisions of Art. Ill § 7 of the Constitution of Oklahoma, guaranteeing free and equal elections have not been violated by the extraneous statement referred to in the preceding paragraph. Coercion cannot be tolerated in an election, electioneering is specifically prohibited, 26 O.S.1979 Supp. § 7-108. The existence of the extraneous material raises a question as to whether or not the voter’s free choice has been affected.

Although we have no case law or statutory provision as to what language must be used on a ballot for special elections concerning bond issues,² I am persuaded that the language or title should be likened to the ballot title requirements made under initiative and referendum provisions. That language as stated in 34 O.S.1971 § 9(a) requires the gist of the proposition to be stated in language understood by persons not engaged in the practice of law. In other words, the language should be clear, plain and unambiguous. It cannot be seriously doubted that the term of fifty years and the fact that the term was renewable for another fifty year term must be stated in plain language. The fact that the amount of indebtedness (the gist) is not clearly and plainly stated but is open-ended likewise renders the election invalid to me.

1 . For examples of cases deemed controversies and thus justiciable see, In re: Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945), and the recent case, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); cf. Jones v. Freeman, 146 P.2d 564, 193 Okl. 554 (1944).

2 . The following cases from other jurisdictions require clarity of language in propositions voted on by the people: England v. McCoy, 269 S.W.2d 813, 815 (Tex.Civ.App.1954); McNichols v. City & County of Denver, 120 Colo. 380, 209 P.2d 910 (1949); Anselmi v. City of Rock Springs, 53 Wyo. 223, 80 P.2d 419, 423, 116 A.L.R. 1250 (1938); Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1946); Turner v. Board of Education, 266 S.W.2d 321 (Ky.1954).