Ruth v. Peshek , 153 Okla. 147 ( 1931 )

This action is an appeal from the action of the city clerk of Oklahoma City holding that the initiative petition to amend the city charter of Oklahoma City was insufficient to authorize the mayor and city council of said city in calling and holding an election to submit certain amendments to the city charter to the qualified electors of the said city.

The initiative petition was presented and filed with the city clerk on October 7, 1930, and thereafter, and on the 2nd day of December, 1930, the said city clerk filed his report on the said initiative petition with the mayor and city counsel of said city holding the petition insufficient; that from his information and investigation the petitions were circulated on the representations that they were signed for other purposes than for the purposes set out in the petition, and that the signers were not, in fact, advised that they were signing a petition to amend the city charter, and for other reasons set out in the report of the employees making investigations as to the signatures, residence, etc., of the signers, which report was made a part of the report of the city clerk to the mayor and council. That, thereafter, and on the 2nd day of December, 1930, the city council passed "resolution" accepting the report of the city clerk and denying the initiative petition.

The initiative petition called for a vote on said petition at the next general election, to be held on the 4th day of November, 1930.

The record discloses that there were 6,678 votes cast at the city general election held Tuesday, April 2, 1929, and 19 spoiled ballots; which was the last city general election held preceding the filing of the initiative petition.

The sheets attached to the initiative petitions contained the signatures of more than 10,000 signers.

From the act of the city in refusing to call the election petitioners appealed to this court. The procedure providing for review of the act of the city officials in refusing to call the election is set forth in section 6647, C. O. S. 1921, under the heading of "Procedure in Municipalities," and provides in part as follows:

"The procedure in municipal legislation shall be, as nearly as practicable, the same as the initiative and referendum procedure for measures relating to the people of the state at large."

Section 6631, C. O. S. 1921, providing for appeal for measures relating to the people of the state at large, provides that such appeal shall be taken from the Secretary of the State to the Supreme Court, and provides the procedure therefor.

Section 6647, supra, provides that this procedure shall apply in appeals in municipal legislation.

The city charter of Oklahoma City does not provide a method of appeal in such cases as the case at bar, and even if it did, the state law providing procedure in such cases and fixing the jurisdiction thereof on appeal would be controlling.

This court in the case of Ruth v. Merrill, 43 Okla. 764,144 P. 371, at pages 765 and 766 of the Oklahoma Report, said:

"But let that be as it may, the district court was without jurisdiction to pass on the sufficiency of the petition, and for that reason did not err in dismissing the appeal.

"In support of the contention that the court was vested with jurisdiction to entertain said appeal, petitioner says that, although the Act of March 17, 1910 (Sess. Laws 1910, c. 66), in effect repealed that part of section 6 of the act approved April 16, 1908 (Sess. Laws 1907-1908, c. 44, art. 1), which vested the district court with jurisdiction to entertain appeals from the action of the city clerk in all cases where the initiative or referendum is invoked upon matters of purely municipal concern, yet, he says that, as said section was incorporated in the city charter, adopted March 8, 1911, the effect of the adoption was to vest the district court with jurisdiction to entertain this appeal. There is no merit in this contention for the reason that the jurisdiction of the courts of this state is fixed by the law-making power of the state, and not by the law-making power of any municipality therein. It goes without saying that when the Legislature authorized the people of this municipality to adopt a charter and legislate therein upon matters of purely local and municipal concern, it did not intend to, and could not, vest the municipality with power to legislate with respect to state government."

And we therefore hold that this court has jurisdiction to entertain this appeal.

Article 9 of the charter of Oklahoma City, sec. 13, provides:

"Amendment of Charter. This charter may be amended at any time at an election at which the proposed amendment is submitted to a vote of the qualified electors of the city, by a majority vote of the electors voting at such election on such proposed amendment.

"The board of commissioners may submit any proposed amendment to this charter to a vote of the qualified electors of the city at any general election or at a special election.

"At such election the general election laws of the state shall govern."

Section 14 of the charter of Oklahoma City provides:

"Initiative and Referendum Vitalized. — Section 4-a, section 4-b, section 4-c, section 4-d and section 4-e of article 18 of the Constitution of the state of Oklahoma, under the title 'Initiative and Referendum,' are hereby adopted and made in full force and effect as if copied word for word in the body of this charter, and chapter 51 of Snyder's Compiled Laws of Oklahoma of 1909, under the title 'Initiative and Referendum,' and all sections thereof, are hereby adopted in full force and effect as if copied word for word in the body of this charter; and sections 3690, 3691 and 3692 of said chapter 51, of said Snyder's Compiled Laws of Oklahoma, making provision, among other things, for the procedure in municipalities under the Initiative and Referendum, are hereby adopted and made in full force and effect."

Section 1, article 5, of the Constitution of Oklahoma provides:

"The legislative authority of the state shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

Section 4-a of art. 18 of the Constitution provides:

"The powers of the initiative and referendum, reserved by this Constitution to the people of the state and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this state, with reference to all legislative authority which it may exercise, and amendments to charters for its own government in accordance with the provisions of this Constitution."

Section 4-b of art. 18 of the Constitution provides:

"Every petition for either the initiative or referendum in the government of a municipal corporation shall be signed by a number of qualified electors residing within the territorial limits of such municipal corporation, equal to 25 per centum of the total number of votes cast at the next preceding election, and every such petition shall be filed with the chief executive officer of such municipal corporation."

Section 4-e of art. 18 of the Constitution provides:

"When such petition demands an amendment to a charter, the chief executive officer shall submit such amendment to the qualified electors of said municipal corporation at the next election of any officers of said corporation, and if, at said election, a majority of said electors voting thereon shall vote for such amendment, the same shall thereupon become an amendment to and a part of said charter, when approved by the Governor and filed in the same manner and form as an original charter is required by the provisions of this article to be approved and filed."

The initiative petition and the sheets containing the signatures and the verifications thereof are in substantial form as provided by sections 3674, 3675, and 3676 of chapter 51 of Snyder's Compiled Laws of Oklahoma, 1909.

Section 3678, chap. 51, of Snyder's Compiled Laws of Oklahoma 1909, provides in part as follows:

"Whenever an initiative petition or referendum petition shall be filed with the Secretary of State, he shall at once proceed to examine into its sufficiency. If anyone desires to appear for or against it, he shall receive testimony and argument. * * * No objection to the sufficiency to any petition shall be considered unless the same shall have been made in writing and filed within five days after the filing of the petition."

In the case at bar no objection to the sufficiency of the initiative petition was ever filed. The law only required the signatures of 1,670 qualified electors residing within the territorial limits of Oklahoma City to the initiative petition; and the petition filed with the clerk contained over 10,000, being 8,000 more signatures than required by law. Taking the report compiled by the employees of the clerk, as to what they believe might be proven as true, the report questions 7,133 signatures, leaving sufficient number of unquestioned signatures to uphold the initiative petition. So that, if this were the only objection made to the petition, giving it the full weight claimed, it would be inadequate to destroy the petition.

In the case of In re Initiative Petition No. 23, State Question No. 38, 35 Okla. 49, 127 P. 862, third paragraph of the syllabus, this court said:

"The names attached to an initiative or referendum petition regularly filed in the office of the Secretary of State, sufficient in number and for the purpose of having the question therein contained submitted to an election, are presumed to be the signatures of legally qualified citizens and electors of the state, and that the post offices and places of residence given therein are correct, and to defeat the submission of said question, the burden is on the one protesting, to produce evidence sufficient to overcome this presumption, and the mere fact that of letters addressed to all the signers of the said petition at post offices given thereon, above ten per cent. were returned to the writer undelivered, or that the circulators of the petition in their affidavits attached thereto set forth more than one county as the residence of the signers of some of the different pamphlets, or that they failed or neglected in a number of instances to legibly write or typewrite the names of the signers of the said petitions on the back thereof, will not be held sufficient, in the absence of other proof, to overcome such presumption and establish that the signers of the said petition were not at the time they signed the same citizens and legal voters of the state."

Defendant in error contends that the initiative petition was insufficient because it demanded that the question be submitted at a special election to be called for that purpose November 4, 1930.

Section 4-e of art. 18 of the Constitution provides:

"When such petition demands an amendment to a charter, the chief executive officer shall submit such amendment to the qualified electors of said municipal corporation at the next election of any officers of said corporation. * * *"

That the charter of the said city of Oklahoma City, in section 5 of article 10 thereof, provides that municipal officers shall be voted on at elections to be held the first Tuesday in April of each odd-numbered years.

This contention of defendant in error is without merit, as the time demanded or designated for holding the election set out and stated in the initiative petition is surplusage, for the constitutional provision, supra, which rises superior to all attempted legislative enactments, expressly provides how such amendment shall be submitted. As stated by this court in the case of Looney v. Leeper, Secretary of State,145 Okla. 202, 292 P. 365, in the third paragraph of the syllabus:

"The embodiment in the provision of the Legislature proposing a constitutional amendment that it shall be submitted at the next general election or at any special election is purely surplusage, for the Constitution by article 24, sec. 1, expressly provides how such an amendment as described in section 2 hereof, shall be submitted to the people, and that is, where a majority of each house vote for the amendment (without a two-thirds majority of each house voting for submission at a special election), the same shall be referred at the next regular general election'."

The people reserved to themselves the power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the Legislature, and also reserved the power at their option to approve or reject at the polls any act of the Legislature. This power so reserved to the people should not be crippled, avoided, or denied by technical construction by the courts. It is the duty of the courts to construe and preserve this right as intended by the people in adopting the Constitution and thereby reserve unto the people this power.

Section 6632, C. O. S. 1921, provides.

"The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. If the end aimed at can be attained and procedure shall be sustained, clerical and mere technical errors shall be disregarded."

This section is a legislative mandate to this court to disregard mere clerical and mere technical errors.

Technical rules of construction are not favored either by this court or by the Legislature in passing upon the rights of the people to govern themselves. Rules are not the ultimate end — the main thing is justice itself and the very right of the matter. Rules are only in aid of the main thing — the working tools whereby it is attained. The administration of justice is a practical affair, an invention for the adjustment of the rights of individuals, and is not a technical and accurate science, but an applied science, adjusting itself to work out justice in all the protean shapes the dealings of mankind assume.

Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern. If the people are to be self-governed, it is essential that they shall have a right to vote upon questions of public interest and register the public will.

This court in Re Initiative petition No. 23, Statue Question No. 38, 35 Okla. 49, 127 P. 862, at page 58 of Oklahoma Reports, said:

"In dealing as we have above with the objections which have been urged to this petition, we believe that we are carrying out the policy of this law in the very spirit intended by the people of this state in adopting it. The right of direct legislation in the people must be administered by the officers charged with that duty in such manner as to make it operative. If technical restrictive constructions are placed upon the laws governing the initiation and submission of these measures, the purpose and policy of the people in establishing the same will be entirely defeated, and instead of becoming an effective measure for relief from evils, under which they have heretofore suffered, there will be naught but an empty shell and a continuation of the conditions for which relief in this manner has been sought."

Under the record presented to us, together with the objections presented, it is our finding and judgment that the initiative petition is valid under the form as required by the statute, and under the presumption that the signatures, of the unquestioned signers, were legally qualified citizens and electors of the state, and that the post offices and places of residence given therein are correct, bore the signatures of a sufficient number of citizens and legal voters of Oklahoma City to require the submission of the question involved to the qualified electors of the city of Oklahoma City at the next general election of any officers of said corporation, and it is ordered that the clerk of this court shall transmit all papers and documents on file in his office relating to such petition to the city clerk of Oklahoma City, Okla., who is directed to conform to the requirements of the law in accordance with this opinion.

LESTER, C. J., and RILEY, HEFNER, and McNEILL, JJ., concur. CULLISON, J., absent. ANDREWS, J., not participating. SWINDALL and KORNEGAY, JJ., dissent.