Associated Industries v. Oklahoma Tax Commission ( 1936 )

The executive order and proclamation of September 17, 1935, submitting the old age pension amendment to a vote of the people prior to ascertainment of sufficiency and form of the petition, does not square with heretofore expressed views of the law.

In what may have been considered an emergency it is doubtful that the Governor was fully aware that this court, five years ago considered and declined to approve almost an exact executive act. In re Initiative Petitions Nos. 112, etc.,153 Okla. 205. 6 P.2d 703; In re Initiative Petitions Nos. 112, etc., 154 Okla. 257, 7 P.2d 868.

I have alluded to an emergency, but it is now firmly established that such a situation does not create power. In the first cited cause, after setting forth the procedure provided by the Legislature for submission of an initiative measure, by way of quotation from the early decision (1912) In re Initiative Petition No. 23, 35 Okla. 49, 127 P. 862, it was said, in reference to the respective duties of the Secretary of State and the Governor:

"In other words, upon holding a petition valid, and upon the remission to the Secretary of State of the papers and documents relating to such petition, it would then, under section 3680, Comp. Laws 1909, be his duty to notify the Governor, in writing, whose duty then is to issue a proclamation setting forth the substance of the measure and the date of the vote thereon. Herein, in accordance with the terms and intent of the statute, is afforded a complete remedy and procedure for carrying it out."

In the cited case (153 Okla. 205, 6 P.2d 703) the proclamation calling the election was issued after the Secretary of State had completed his investigation and while the question of the sufficiency of the petitions was pending in this court on appeal. The question presented was whether the State Auditor should be enjoined from paying out money from the state treasury for expenses of carrying on the election. The court, by a majority of its members, expressly declined to upon the question whether the proposed act, if adopted, would be the law. In other words, the court declined, in that form of anaction, to approve or disapprove the act of the Governor calling the election before final decision of this court upon the sufficiency of the petition.

At that time, together with three of my associates. I thought the question of such public importance that it should be decided. It is, unfortunate that the question was not then decided. In that cause it was suggested:

"By this adjudication this court decides that it, as such, will not, until after the horse is stolen, close the barn door."

A complete determination then would have saved thousands of dollars of the public treasure and disappointment now. The disappointment, however, might easily have been foreseen and avoided by consideration of the views expressed by four members of this court in the first cited cause and the statements of law contained in the majority decision reported in154 Okla. 257, 7 P.2d 868, and the fact that in the former case the majority of the Justices were taking a contrary view only upon the issue of whether the question should then be decided, and not upon the proposition as to how the decision should go. There has never been any departure from the early decision of this court on the question as expressed by Mr. Justice Dunn in Re Initiative Petition No. 23, supra.

The exact proposition now presented was heretofore anticipated by Justices of this court, for it was said:

"If the hearing upon the sufficiency of the petition were pending, undetermined before the Secretary of State, could it be rightfully contended that the Governor possessed authority to proclaim an election on the undetermined petition? Certainly not. * * * No valid election can be held under the executive orders so promulgated. * * *" 153 Okla. 205, 6 P.2d 703.

I thought this was the law then — I still think so.

The opinion prepared by Mr. Vice Chief OSBORN conforms in principle with such views. I, therefore, concur, regretting that the political movement is abortive through failure to base the same upon the law, the cornerstone upon which the state is builded.