In Re Initiative Petitions Nos. 112, 114, 117, 118 , 153 Okla. 205 ( 1931 )

I concur in the majority opinion for the reason that this court has no authority or jurisdiction to directly or indirectly interfere in matters of a purely political nature.

It was admitted by the attorney for the protestant seeking the injunction that an injunction could not be granted against holding the election, but that an injunction granted against the State Auditor and the election board would have the same effect. The protestant was seeking to secure an injunction that would prevent the free exercise of suffrage by the people of the state of Oklahoma in an election called by the Governor of this state to be held on December 18, 1931.

The Constitution of Oklahoma, sec. 1 of art. 2, provides:

"All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it; Provided, such change be not repugnant to the Constitution of the United States."

I am of the opinion that this court, and its existence as a court, depends upon the will of the people in this state. We are not masters and cannot control, nor deny the people the right to vote, nor have we jurisdiction or authority over matters of a purely political nature.

We are authorized by the Constitution to pass upon civil or property rights of the people of Oklahoma, and then only when our jurisdiction is invoked in a manner prescribed by law. We have neither legislative nor executive power. The court over which we preside was created by the Constitution, and each member of this court was commissioned by the people of Oklahoma to perform certain duties prescribed and limited by the Constitution of Oklahoma. We have no authority nor jurisdiction beyond the limitations imposed upon us by the Constitution of Oklahoma, the great charter of the people's liberties.

Section 4 of article 2 of the Constitution provides:

"No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right."

Under this section of the Constitution we have no authority to interfere with the free exercise of the right of suffrage to those entitled to such right, and every qualified voter in Oklahoma is entitled to such right; and to grant an injunction prohibiting or interfering in any way with the election called would be an attempt to prevent the free exercise of the right of suffrage.

Section 7 of article 3 of the Constitution provides:

"No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace be privileged from arrest during their attendance on elections and while going to and from the same."

Under this section of the Constitution it is an inhibition against this court to attempt in any way, either directly or indirectly, to interfere with the rights of the people. This Constitution is binding on this court. We must not assume that the Supreme Court is the supreme power in the state of Oklahoma. The people are the supreme power. We cannot say to the citizens when they shall vote and when they shall not vote.

Section 1 of article 4 of the Constitution provides:

"The powers of the government of the state of Oklahoma shall be divided into three separate departments: The legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

The judicial, executive, and legislative departments of government shall be separate and distinct, and neither shall exercise the power properly belonging to the other, is a mandate of the people in the Constitution and binding on this court. When the people initiate measures, or constitutional amendments, they are acting in a legislative capacity, and when the Governor of the state calls the election he is obeying the mandate of the people expressed in the Constitution.

Section 3 of article 5 of the Constitution provides in part:

"* * * Petition and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. * * *"

So the people are acting in a legislative capacity when they are operating under the Constitution and the laws relating thereto, and acting in that capacity this court, under the Constitution, cannot interfere with them.

The sovereign citizens of this state, by section 1 of article 5 of the Constitution, reserved to themselves the authority to propose laws and to enact the same independent of the Legislature, and by the inhibition that no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, they have the authority to propose and enact laws independent of the courts of this state.

The case of McAlister, Sec. of State Election Board, et al. v. State ex rel. Short, Attorney General, 95 Okla. 200,219 P. 134, was an action begun in the district court of Oklahoma county by the Attorney General by direction of the Governor against the State Election Board and the State Board of Affairs to enjoin the holding of an election called by the Governor of Oklahoma to be held on the 2nd day of October, 1923, at which election several constitutional amendments were being submitted by proclamation of the Governor of the state of Oklahoma. It was alleged in the petition in the latter case that all of said amendments were not submitted at the time and in the manner and by the authority prescribed by the laws and Constitution of Oklahoma, and that the State Board of Affairs would incur an expense in excess, of $10.000 in holding said election, and said election would be invalid when held. The trial court granted the injunction and on appeal to this court this court held that said injunction could not be granted for the reason that this court could not enjoin matters of purely political nature. And in the 2nd paragraph of the syllabus this court said:

"When the Legislature authorizes the submission of a proposed amendment to the Constitution to the people, it merely places in motion the process of the people's exercising their reserved legislative power, and a court of equity will not assume, in advance, jurisdiction to determine whether the proposed amendment, if adopted, is submitted and adopted in accordance with the law governing the same."

This case cited with approval many cases from Kansas and also cases from this court.

In Pomeroy's Equity Jurisprudence (4th Ed.) sec. 1753, it is said:

"An injunction will not issue, as a general rule, for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which an election shall be held. An election is a political matter, with which courts of equity have nothing to do. Moreover, the effect of interference in such matters might often result in the destruction of the government."

The Supreme Court of Kansas in the case of Duggan v. City of Emporia, 114 P. 235, at page 236, quoted from an Illinois case as follows:

"In Walton et al. v. Develing et al., 61 111. 201, it was held that the court had no power to enjoin the holding of a township election to determine whether a majority of the voters were in favor of subscribing to the stock of a railroad company, and that the defendants who had violated the order were not liable for contempt of court for disobedience to the writ. In the opinion it is said: 'But the attempt to check free expression of opinion, to forbid the peaceable assemblage of the people, to obstruct the freedom of elections, if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate. The principle which would authorize the might mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed, and all power and authority placed at the footstool of the judge'."

The Supreme Court of Montana in State v. Alderson, 142 P. 210, at page 216, said:

"So long as human agencies are to be employed in carrying out the constitutional scheme of amendment, slight errors and defects in procedure are certain to occur, and to impose the rule of literal compliance would, for all practical purposes, render the adoption of any amendment absolutely impossible and defeat one of the very purposes of the Constitution itself. We ought not, by any strained construction, make the language of our Constitution mean something altogether different from what the people had in contemplation in its adoption. No rule of construction should be invoked which will trammel the people in their efforts to exercise the right reserved to themselves to change their Constitution by popular vote.

"In speaking of a slight deviation from the constitutional method of proposing an amendment, the Supreme Court of Mississippi said:

" 'This objection would have more force if the act of itself operated as an alteration of the Constitution. But it is merely a proposition to be submitted to the action of the people. It is a means provided by which the people may exercise their soverign right of declaring whether they will change their Constitution or not, thereby establishing the mode in which the government shall be changed, instead of leaving it to unregulated popular impulse. The proposition is presumed to emanate from the people through their representatives, and is regularly submitted for the action of the whole people. There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting, in an established form, to a free people, the proposition whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their Constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the state to change their Constitution in the mode prescribed by the instrument.' Green v. Weller, 32 Miss. 650."

The Constitution and the decided cases sustain the holding that the injunction should be denied.