State Ex Rel. McNeill v. Long , 178 Okla. 409 ( 1936 )

I cannot concur in the majority opinion. My belief is that such a constitutional provision as is involved in this case, to the effect that 30 days' notice of the election must be had, is mandatory, and that no justification exists for classing it as merely directory.

The general rule, as stated in 12 C. J. 740, is well supported by the cases:

"It is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest. Some cases even go so far as to hold that all constitutional provisions are mandatory. But more accurately, the test as to whether a provision is mandatory or directory is the intention of those who framed and adopted it. This intention is to be gathered, not so much from a technical construction of particular words, as from a consideration of the language and purpose of the entire clause. There is a strong presumption in favor of its being mandatory."

Frequently statutes are held directory, but, as I understand it, constitutional provisions stand in a different class. In this connection the following general statement from 6 Rawle C. L. 55 is pertinent here:

"In the interpretation of Constitutions questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the Legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory, and not to leave it to the will of a Legislature to obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions were intended to be directory merely. The analogous rule distinguishing mandatory and directory statutes are of little value in this connection, and are rarely applied in passing upon the provision of a Constitution. So strong is the inclination in favor of giving obligatory force to the terms of the organic law, that it has even been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and every one of its provisions should be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes."

This court has gone on record as adopting the views expressed above, for in Board of Commissioners v. Hammerly, 85 Okla. 53,204 P. 445, we said:

"It is a rule applicable * * * alike to statutory and constitutional law that when the law directs something to be done in a given manner, or at a particular time or place, then there is an implied prohibition against any other mode or time or place of doing the act. The rule applies with particular force to the interpretation of constitutional law."

Speaking concerning the same distinction, the Supreme Court of California, in People v. Gunn, 24 P. 719, observed:

"* * * The respondent claims: First, that the alleged defects are insignificant and immaterial; and cites many authorities, which, it is claimed, support that proposition. But the misfortune is that they are not in point. They all relate to procedure under statutes held to be merely directory. In this case, the procedure was under constitutional provisions expressly declared to be mandatory and prohibitory, * * * The language of Judge Cooley in his work on Constitutional Limitations (page 78) * * * is directly in point, and shows that, even in the absence of a clause making its provisions mandatory and prohibitory, the courts will not hold the provisions of a Constitution to be directory or unessential, but will rather hold that wherever it prescribes a mode, that mode is the measure."

Section 4c of article 18, dealing with the initiative and referendum, was involved in the case of Ex parte Griggs,63 Okla. 138, 163 P. 325. The failure to observe the requirements of section 4c rendered the election invalid, this court observing:

"It will not do to say that it may be disregarded and that a failure to observe such requirements will not defeat an election, for to do so would set at naught the will of the people with reference to such matters as expressed in this provision."

The courts are not justified in ignoring such a plain and unambiguous mandate as section 5a of article 18 of our Constitution. The Constitution requires that 30 days' notice be given. That fact was brought to the attention of the present litigants in our first opinion written in this case, cited but not quoted in the majority opinion. In spite of that fact, they gave only 13 days' notice, which is less than half the time required by the Constitution. The makers of the Constitution did not contemplate that the courts were authorized to look into the facts of such cases as these, for the purpose of determining whether the provisions of the Constitution should be enforced in some cases and ignored in others.

It is my intention herein to point out the distinction between constitutional requirements and statutory requirements, in so far as the question of the mandatory nature thereof is concerned. It is significant that no similar decision of this court, involving a constitutional requirement, is cited in the majority opinion. All of the cases cited therein involve mere statutory requirements, with the possible exception of Town of Grove v. Haskell, Governor, 24 Okla. 707, 104 P. 56, but the refusal of the court to avoid the election in that case was based upon the principle that there was a substantial compliance with the Governor's requirement as to the period of notice of a county seat election, where the Constitution provided that he should name the period of notice to be given. In that case, the period of publishing was in absolute accord with the requirement, but the period of posting was "between five and six weeks, instead of the full term of six weeks." While the period of notice in that case was substantially in accord with the requirement, regardless of whether it was a constitutional requirement or otherwise, I do not think that even the majority opinion in the present case holds, or attempts to hold, that 13 days' notice is a substantial compliance with a constitutional requirement of 30 days. The opinion simply holds that if no fraud is shown, or it is not shown that the result would have been different under the proper period of notice, the constitutional requirement is not mandatory.

In using such language, and in adopting such judicial utterances, the opinion is directly contrary to a decision rendered by this court less than a year ago, and written by the same Justice who is author of the present opinion. I refer to Associated Industries of Oklahoma et al. v. Oklahoma Tax Commission, 176 Okla. 120, 55 P.2d 79.

That case, like this, involved validity of an election pursuant to our initiative and referendum statutes and constitutional provisions. By virtue of section 4(a) of article 18 of our Constitution, the same rules apply to initiative and referendum petitions of municipal corporations as apply to such petitions in state-wide elections. The facts were that the Governor, while the Secretary of State was conducting a hearing as to the sufficiency of the petition, and before the Secretary of State had completed his hearing, issued an executive order and proclamation directing that the initiative petition be submitted to the people for vote. The election was held, and thereafter the Secretary of State completed his hearing, and found that the initiative petition was sufficient in form and was signed by the requisite number of legal voters. At the polls, the initiative petition was overwhelmingly adopted, there being 204,522 votes cast in its favor and 78,783 votes being cast against it.

In spite of the fact that an election had already been held, and in spite of the fact that no fraud was shown, this court held the election invalid. The basis of the opinion, as stated in various ways throughout its length, and in the concurring opinions, was that:

"Courts can approve only those acts of the people which are in substantial conformity with the procedure provided by or under authority of the Constitution."

Also, that result was reached in the very face of section 5892, O. S. 1931 (relating to the method of submission), which section provided that:

"The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. * * *"

The Associated Industries Case recognized the fact that there must be an orderly procedure for the exercise of the right of initiative and referendum. It was there pointed out that such provisions as were involved in that case and in this case

"are designed to protect the people against hasty, disorderly, and ill-considered changes in their fundamental government and established laws. They were enacted to prevent changes in the fundamental laws before the people had been properly informed on the advisability of such changes and had had opportunity to give deliberate consideration thereto. They are designed to preserve to the people the wholesome provisions of the Constitution and the established laws and institutions thereunder. They were enacted pursuant to mandatory provisionscontained in the Constitution adopted many years ago by the whole people for their future guidance." (Emphasis mine.)

In the Associated Industries Case we were considering the same question in substance as is concerned in the instant case, namely, the premature submission of the petition to a vote, thereby ignoring legislative enactments and constitutional provisions concerning the period of time for the doing of an official action connected therewith. We there laid great stress and importance upon "* * * pointing out the importance of a substantial compliance with the constitutional and statutory provisions relating to the exercise by the people of this reserved power."

We there re-affirmed, and quoted, the excerpt from Ex parte Griggs, supra, which I have copied above. In holding the election invalid we said that the initiative petition had "* * * not been ratified and approved by the people in accordance with the provisions of the Constitution of this state, and that petitioners are entitled to a permanent injunction as prayed for."

Justice Welch, in a concurring opinion, stated:

"The Constitution is binding alike upon every official as upon every citizen. We all enjoy rights under the Constitution, but we must abide its limitations upon our rights. State officials have various duties under the Constitution, and those duties we have the legal power to perform, but we must likewise accept the limits on our power which we find in the Constitution. That is to say, that our Constitution at once a grant of official power and a limitation of official power. When that document provides that a named state official 'shall' do a specific thing, then that duty he must perform at the proper time and in the proper manner, without consulting his discretion as to whether he will perform or wills not to do so."

Justice Welch further stated:

"The true rule undoubtedly is that he must submit the measure, having due regard to the time when he should act, and to the orderly method and manner provided by suitable provisions therefor. That is in keeping with the letter and spirit of the Constitution, and of the legislative enactments, which for so many years have been acquiesced in by the people, and followed by courts and other officials."

Furthermore, it is not an open question in this jurisdiction whether the giving of a 30 days' notice as required by section 5(a) of article 18 of the Constitution, is mandatory on the one hand, or directory on the other. We have expressly announced that it is mandatory. The following unequivocal announcement is from the case of In re Initiative Petition No. 2 of Cushing, 157 Okla. 54, 10 P.2d 271:

"* * * It is the mandatory duty of the chief executive officer of the city to call the election, and give notice thereof as required by section 5(a) of article 18 of the Constitution."

I am unable to comprehend why, if the foregoing excerpt was a correct statement of the law when that opinion was filed, and if the same principles, were still the law when the Associated Industries decision was made, there should now be such a sudden change. I do not believe that this court is clothed with any more authority to construe the Constitution in such a manner as to render any portion thereof ineffective than the Legislature is clothed with that power. If the Legislature should attempt to change the period of notice from 30 days to 13 days, there is little doubt of what the decision of this court must be as to the constitutionality of any such enactment. The framers of our Constitution, in providing that the notice should be 30 days, had a good and sufficient reason for so doing, and it seems clear to me that justice may more readily be assured in the greatest number of cases, and that fraud and injustice may be avoided in future elections more certainly by adhering to the plain terms of our Constitution, in accordance with the time-honored rules relating to the importance and binding effect of such constitutional provisions. Paraphrasing the language of the immortal Patrick Henry, Whatever course others may take, as for me, I shall continue to stand squarely upon the provisions of our Constitution.

The majority opinion has noticed the Associated Industries Case, and has attempted to distinguish between it and the present case. The attempted distinction is the claim that in that case there was no authority to call the election, while in this case there was such authority. Certainly, there was authority in this case to "call" the election, but there was noauthority to call it illegally, to call it in defiance ofpositive constitutional mandate. Both cases involve constitutional provisions centering about the call, one when the call shall issue, and the other under what terms it shall issue. We cannot properly enforce the one and ignore the other. And when the attempted distinction points out that "in this case there was authority to call the election", it is overlooking this fact: that whether there was authority to "call" the election (the mere naked act of "calling" it, in some manner, regardless of the Constitution) is not the question.

The Associated Industries Case was correct. It was correct in the paragraph thereof which has been copied into the majority opinion when it made a distinction between the cases cited therein and that case, but the distinction announced between the cases cited therein and that case is not the real or only distinction; there is the further important distinction (whether noticed in that case or not) that those cases involved statutory requirements, while this and the Associated Case both involve constitutional requirements. In addition to the excerpts from the Associated Case which are copied above, a reading of the entire opinion necessarily reveals that its basis, its entire underlying foundation, is that the election requirements which are in our Constitution are mandatory, and must be obeyed, even in those cases where no fraud is involved and where there is no claim that but for the irregularity a different result would have obtained.