In Re Initiative Petition Number 259, State Question 376

JACKSON, Justice.

This case involves an appeal from a decision of the Secretary of State upholding the sufficiency of Initiative Petition No. 259, State Question No. 376. The proposed petition provides for county option in the sale and distribution of what is commonly known as 3.2 beer.

Since the appeal was filed in this court the protestant, hereinafter called appellant, has determined that the petition contains a sufficient number of legal signatures for its submission as a Constitutional Amendment and has dismissed his appeal in so far as it questions the number and validity of the signatures to the petition. This leaves for consideration the general questions of whether the petition is sufficient in form and substance.

Provision is made for the Initiative and Referendum in Art. V, secs. 1-8, Oklahoma Constitution. Under Art. V, sec. 3, Constitution, the Legislature is directed to make “suitable provisions for carrying into effect the provisions of this article.” Art. V.

The petition to the Governor provides, in part, as follows:

“We, the undersigned citizens and legal voters of the State of Oklahoma, respectfully order that the following proposed amendment' to the Constitution of the State of Oklahoma shall be submitted to the legal voters of the State of Oklahoma for their approval or rejection * * *.

“The question we herewith submit to ’ ' our fellow voters is : Shall the follow- ' ing proposed amendment to the 'Constitution of the State of Oklahoma be adopted.”

Then follows a complete copy of the title and text of the proposed measure as required by 34 O.S.1951 § 2. This proposed measure provides for elections in counties to prohibit or permit manúfacture, sale or other distribution of beverages containing more than one-half of one per cent (½ of 1%) of alcohol by volume and not more than three and two'-tenths per cent (3.2%) of alcohol by weight, and provides procedure for holding county- elections.

It is earnestly contended by appellant that the proposed measure cannot be adopted as an amendment to the Constitution. It is first contended that the “title and text of the proposed measure” is (1) drawn in the language and form of a statute and (2) its “substance” deals with statutory matter. It is not contended that there is any language in our Constitution and statutes that requires proposed constitutional amendments to be in any particular form or verbiage, or of any particular substance. However, it is contended that our Constitution cannot be amended by an initiated measure, which shows by its contents that it is a mere legislative act. It is admitted by the proponent of the measure that as to the form and language of the “text” it has the appearance of a' legislative enactment. However, he insists that the “substance” of the measure, notwithstanding its appearance, is appropriate for an amendment to the Constitution.

These questions have not heretofore been presented to this court.

Appellant quotes at length from State ex rel. Halliburton v. Roach, 1910, 230 Mo. 408, 130 S.W. 689. Therein it was proposed to amend the Constitution of Missouri to provide for fixing State senatorial districts that would be effective for a period of ten years, or until the next Federal census. Thereafter the senatorial districts were to be fixed by a law enacted by the people (by initiative petition), or by the Legislature, and adjusted on the basis of that census. That court held in substance that the allegations of an initiative petition determine its character and the fact that such petition calls the matter a proposed amendment does not determine that it is an amendment instead of a legislative act. The court further held that an initiative petition initiated in 1910 fixing state senatorial districts which shall continue until the Federal census of 1920, when these districts shall by a law enacted by the people, or by the Legislature, be adjusted on the basis of that census, is a petition for a legislative enactment of a temporary character, and not a petition for a constitutional amendment; a "constitution” being a fundamental law as distinguished from a temporary act, and implying an instrument of a permanent nature. The court concluded that a proposed amendment to the Constitution must in fact be an amendment to the Constitution and not just a temporary legislative measure. The proposed amendment was rejected as being statutory or legislative in nature.

The foregoing decision appears to be persuasive. However, the decision must be interpreted in light of the facts in the case. It will be observed from a careful examination of the case that the proposed amendment was temporary in nature as distinguished from permanent. This, together with other objectionable features therein discussed, was considered sufficient cause to reject it as a constitutional amendment. The temporary nature of the proposed amendment seems to be the controlling feature in that case.

In Marsh v. Bartlett, 1938, 343 Mo. 526, 121 S.W.2d 737, the Missouri Court in evaluating the Halliburton case, supra, at page 741 of 121 S.W.2d, said:

“In the Halliburton Case the question was whether the initiative petition which was there under review proposing an amendment to change the method for dividing the state into senatorial districts, was valid. * * *.

“The gist of the majority holding therein was that the proposed amendment was not valid, because in effect it was not organic law but a temporary legislative act, and should not be submitted under the false cognomen of an amendment. The Halliburton decision was disapproved by a majority opinion in the Stokes Case, supra [State ex rel. Stokes v. Roach, Mo.Sup., 190 S.W. 277], Graves, J., dissenting in a separate opinion filed. * * *.”

While it appears from the language in the Marsh case, that the Halliburton decision has been disapproved, we are of the opinion that it was disapproved on grounds not involved herein.

The Marsh case is interesting in that the issues therein raised and determined are identical to many of the propositions here presented. In that case Marsh was arrested and charged with catching a large mouth bass during the closed season in violation of certain sections of the statutes. He was convicted, fined, refused to pay, and was committed to jail by Bartlett, the sheriff. The statute, if effective, had been violated.

Marsh contended that the statute had been repealed by Constitutional Amendment No. 4, and that the statute had been supplanted by a certain regulation of the Conservation Commission. The amendment provided that the control of all fish * * * and wild life resources of the State * * * shall be vested in the Commission and further provided that all existing laws inconsistent therewith shall no longer remain in force and effect.

It was the Sheriff’s position, among others, that the amendment when tested by the touchstone of the Constitution itself was lacking in essentials of a valid constitutional amendment; that it was not organic law but a legislative act unrelated and incongruous with the Constitution which creates a three-fold division and separation of governmental powers, a form of constitutional government common to most of the States of the Union. In upholding the amendment the court, at pages 742 and 743 of 121 S.W. 2d, said:

“ * * * So, it follows that our immediate question is upon * * * the broad policy it declares regarding the subject matter of the Amendment, namely, ‘The control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wild life resources of the state * * This policy-creating portion which determines the object to be accomplished is necessarily within the attack made on the Amendment as a whole, that it is legislative in character, and by reason thereof, violates Section 1 of Article 4 of the Constitution, Mo. St.Ann.Const, art. 4, § 1. * * *.

“We have not been directed to any provision of the Constitution which expressly or impliedly limits the content of an amendment thereto * * *. Hence * * * the Amendment does not infringe on the Constitution as it speaks today. * * * And we think it is in harmony, in its nature and its attributes considered in this opinion, with the remainder of the Constitution, even though the former in its entirety is legislative in its nature. * * *.

“ * * * In the Bill of Rights (Sec. 1, art. 2) as found in the Constitution, Mo.St.Ann.Const, art. 2, § 1, it is declared ‘That all political power is vested in and derived from the people; that all government of right originates from the people, as founded upon their will only, and is instituted solely for the good of the whole.’ In view of these reservations of sovereignty and of the right to exercise functions thereof in the State’s government, it seems self-evident that the exercise thereof in this particular instance to provide in the mode selected and to the extent effected by an enduring ordinance, policy-forming as to its subject matter and rule-delegating as regards the administrative functions and imposed duties, was valid notwithstanding the general field for action by way of statutory enactments had theretofore been entered solely by successive Legislatures. That condition, long existing, continued merely because until of late the people did not attempt to exercise their stated reserved authority. * *

Coming now to the Oklahoma Constitution, statutes and court decisions on the subject of reserved powers and initiative petitions, we find the following :

“ * * * the people reserve to themselves the power to propose laws and amendments to the Constitution * * Art. V, § 1, Const.

“The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so proposed. * * Art.' V, § 2. Const.

tt $ * * The Legislature shall make suitable provisions for carrying into effect the provisions of this article.” Art. V, § 3, Const.

34 O.S.1951 § 24 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.”

In Ruth v. Peshek, 153 Okl. 147, 5 P.2d 108, 111, in the body of the opinion this court said:

“The people reserved to themselves the power to propose laws and amendments to the Constitution, * * *. 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.”

“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.”'

In the second paragraph of the syllabus in Cress v. Estes, 43 Okl. 213, 142 P. 411, this court expressed its view of the initiative as • follows:

“The power to propose and adopt a proposition of any nature and to amend their Constitution is vested in the people of the state, and in the exercise of such power they constitute the legislative branch of the government and are not subject to interference or control by the judiciary.” ’ • •

We have carefully searched the Constitution and statutes and find nothing therein that rejects a proposed constitutional amendment because it has the appearance, form, and substance of a statute or legislative matter. While it may be within the power of the Legislature to so provide it has not done so. Since the power to make suitable provisions for carrying into effect the initiative has been specifically given to the Legislature, it was not intended that this power would be exercised by the courts.

While the provision for, and the regulation and control of the sale and distribution of 3.2 beer has been left in the legislative field since 1933, we are of the opinion that the people may exercise their reserved power, if they so desire, and provide, in the manner proposed, an enduring ordinance in the form of an amendment to the Constitution providing for County option in the sale and distribution of beer. We hold that the statutory language and form appearing in the proposed amendment is not fatal to its submission as an amendment to the Constitution.

In his second proposition appellant asserts that the text of a proposed amendment to the Constitution must refer to the Constitution or to some section thereof. The Constitution and statutory provisions do not so provide.

In State Question No. 362, Legislative Referendum No. 108, a constitutional amendment was proposed. Neither the text of the measure, nor the ballot title, -refers to any section or article of the Constitution to be amended. That amendment was adopted by the people and is now a part of our Constitution. See 1955 Directory of the State of Oklahoma, page 193, for ballot title and see Art. XI, § 6, as amended in 1954.

If the proposed amendment is amendatory of any section of the Constitution it would, if adopted, amend any section of the Constitution in conflict therewith whether mentioned or not. The substance and purpose of the proposed amendment is to provide County Option in the sale and distribution of “3.2 beer.” Art. 1, § 7, Okl. Const., and the Prohibition Ordinance (Page 929, Book 2, Oklahoma Statutes Ann.Const.) provide, in part, as follows:

“The * * * furnishing * * * of intoxicating liquors * * * is prohibited for a period of twenty-one years * * * and thereafter until the people of the State shall otherwise provide by amendment of this Constitution and proper state legislation. Any person * * * who shall * * * sell * * * or otherwise furnish any intoxicating liquor of any kind, including beer * * * shall be punished * *

While it has been determined that 3.2 beer is non-intoxicating (37 O.S.1951 § 1 et seq. — State ex rel. Springer v. Bliss, 199 Okl. 198, 185 P.2d 220), it is apparent that if the proposed amendment is amendatory of any section of the Constitution it would be amendatory of Art. I, Sec. 7, supra.

Since the Constitution and statutes make no requirement that a proposed amendment refer to the Constitution or the section to be amended, and since the proposed amendment would, if adopted, amend any section of the Constitution in conflict therewith, we conclude that it is not necessary for the text of the proposed amendment to refer to the Constitution or any section thereof.

It is contended that the proposed amendment is fatally defective for the reason that it will, if adopted, amend Art. V, § 3, Okl.Const., as to the time of holding elections and that nowhere in the title or body of the proposed measure is there any reference to amending this section of the Constitution. We recognize that the proposed amendment may, if adopted, be amendatory of Art. V, § 5, and other sections of the Constitution and it is apparent that the title and body of the proposed measure makes no reference to amending or changing any section of the Constitution. Art. V, § 57, Okl.Const., provides that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. This is not required of initiated measures. See Ramsey v. Persinger, 43 Okl. 41, 141 P. 13.

Appellant contends that it will be impossible to prepare a ballot title. It is argued that since the ballot title must contain the words “constitutional amendment” and the text of the measure does not refer to the Constitution or section to be amended, the ballot title cannot refer to the Constitution. While this proposition is premature (See 34 O.S.1951 §§ 9 and 10) we think it may be helpful if we dispose of the issue at this time.

34 O.S.1951 § 9, provides for a ballot title which shall contain the gist of the proposition. The proposition presented in this petition is a “proposed amendment to the Constitution” authorizing county option, and the question presented is: “Shall the following proposed amendment to the Constitution of the State of Oklahoma be adopted.”

We are of the opinion and hold that the above quotations are a part of the “proposition” and should be considered in the preparation of the ballot title, although these quotations do not appear in the text of the measure.

It is further contended that the petition as circulated is a fraud upon its face, and that the persons who signed the petition were entitled to be informed by the petition itself whether they were signing a petition seeking an election on a proposed legislative measure or constitutional amendment.

The people of Oklahoma are familiar with the historical fact that the Enabling Act required prohibition in this State for a period of twenty-one years after statehood. Intoxicants of all kinds, “including beer, ale, and wine” were specifically mentioned in the Constitution (Art. I, § 7, Const., supra).’ Various proposed amendments have been submitted to the people for repeal of the prohibition clause in our Constitution. We think the people of Oklahoma, including the petitioners, are well informed generally on the difference between a proposed amendment to the Constitution and an initiated statutory measure, especially in the field of prohibition.

The initiative petition herein sets forth clearly that the measure is proposed as an amendment to the Constitution. We fail to see how petitioners could have been misled or misinformed by the petition.

It is finally argued by appellant that the proposed constitutional amendment contains misleading and contradictory provisions, and that this court should hold such petition legally insufficient and void. We think this argument, and the argument heretofore advanced that the proposed amendment, if adopted, will contradict other sections of the Constitution has been answered in many decisions of this court.

In the early case of Threadgill v. Cross, 26 Okl. 403, 109 P. 558, at page 563 of the Pacific Reporter, this court said:

“* * * We refrain from expressing any opinion whatever upon what the effect of such amendment will be, if adopted. That question can and will be determined only when it is presented to this court in the course of litigation by some litigant whose rights are involved hereby.”

We adhere to the rule there expressed.

Our attention is invited to Secs. 22 and 23 of the proposed amendment. These sections provide:

“Section 22. If any section, paragraph, sentence or phrase of this Act shall be declared unconstitutional or void for any reason by any court of final jurisdiction, such Act shall not in any way affect the remaining sections, paragraphs, sentences, or phrases' of this Act, but'the same shall continue in full force and effect..

“Section 23. All Acts and parts of Acts in conflict herewith are hereby repealed.”

It is argued that these provisions have no place in a constitutional amendment for the reason that the sections, paragraphs, sentences and phrases cannot be unconstitutional if they are a part of the Constitution. It is also pointed out that all Acts and parts of Acts in conflict with the amendment, if adopted, will be repealed whether the amendment so provides, and that the two sections (22 and 23) are pure surplusage and neither add to nor subtract from the meaning or effect of the proposed measure. We are in full agreement with this argument.

Proponent invites our attention to 34 0. S.1951 § 8, which provides in part:

“ * * * If the court shall adjudge such petition insufficient the parties responsible for same shall have the right to correct or amend their petition to conform to the opinion of the court, provided said amendment or change is made within five days. * * *.”

In proponent’s supplemental brief he authorizes this court, in the event certain defects are found objectionable, to alter or amend the petition by deleting and adding such language as the court deems necessary and proper, citing In re Initiative Petition No. 1, City of Drumright, Okl., 298 P.2d 409, 410, where in the third paragraph of the Syllabus we held:

“When an initiative petition proposing the repeal of a city charter has been found sufficient to meet the requirements of law, and the petition also contains other proposals which are in conflict with the laws of the State, this court may strike the objectionable matter and adjudge the petition as amended sufficient.”

In that case the signers of the petition as well as the proponents authorized us to strike the objectionable matter. In the instant case the signers of the petition have not authorized any deletions from the petition. However, we know of no reason why this court may not strike “Pure Surplusage” from a proposed initiative measure where to do so would not change in any manner the nature and substance of the petition as signed and presented.

Having concluded that sections numbered 22 and 23 are surplusage, and neither add to nor subtract from the meaning and effect of the proposed amendment, said sections numbered 22 and 23 should be, and the same are, hereby stricken from the petition. With sections 22 and 23 stricken, the petition is held to be sufficient as required by the statutes for the calling of an election thereon.

It is ordered that upon the filing of this petition and mandate, the clerk of this court shall transmit to the Secretary of State a certified copy of same, and the Secretary of State shall proceed in the manner provided by law, and not inconsistent with this opinion.

CORN, V. C. J., and HALLEY, WILLIAMS, BLACKBIRD and CAR-LILE, JJ., concur. WELCH, C. J., and DAVISON and JOHNSON, JJ., dissent.