State Ex Rel. Williamson v. Carter , 177 Okla. 382 ( 1936 )

The rule of law stated in the syllabus of the majority opinion is contrary to former decisions of this court wherein the phrase "next election held throughout the state," as used in section 3, art. 5, Constitution, is designated as the time an initiated measure shall be placed upon the ballot.

Six years ago this court, without dissenting voice, held in Looney v. Leeper, 145 Okla. 202, 292 P. 365:

"When * * * a proposed constitutional amendment is agreed to * * * it becomes the duty of the Secretary of State to refer the proposal to the people for their approval or rejection * * * as directed in said constitutional provision, and if he improperly failed, because of misunderstanding as to his duty, mandamus lies to require such submission. * * * This for the reason that an official cannot by failure to properly perform ministerial duties thwart the people in the enjoyment of a constitutional mandate giving to them the right of voice."

Therein we held that under the provisions of section 3, art. 5, Constitution, supra, "the next election held throughout the state" included a state-wide primary election. Such was the ruling in Atwater v. Hassett, 27 Okla. 292 (1910), 111 P. 802, wherein Judge Williams wrote the opinion.

In Simpson v. Hill, Justice Branson confused section 1, art. 24, Constitution, wherein the phrase "next regular general election" is used in reference to constitutional amendments having their origin with the Legislature, with the phrase "next election held throughout the state," as used in section 3, art. 5, supra, but this error has repeatedly been noticed and corrected. State ex rel. Babb., Co. Atty., v. Mathews,134 Okla. 288, 273 P. 352; Looney v. Leeper, supra; Associated Industries v. Okla. Tax Comm., 176 Okla. 120, 55 P.2d 79.

There is no distinction between a primary election held throughout the state and a general election held throughout the state in so far as section 3, art. 5, Constitution is concerned, both are "elections held throughout the state," at which the mandatory obligation rests upon the Governor to submit a completed initiated constitutional amendment. Associated Industries v. Okla. Tax Comm., supra.

In Oklahoma the primary is a mandatory state-wide primary, required by the Constitution, it is regularly provided by law, it occurs at regular intervals. Thereat a vote is had upon "men and measures." Atwater v. Hassett, supra. The run-off to be held on July 28th next is a part of the mandatory primary system contemplated by section 5, art. 3, Constitution. Therefore, rules and decisions from other jurisdictions where primaries are merely a political party affair, as are conventions, are not persuasive or controlling.

In Craig v. Bond, 160 Okla. 34, 15 P.2d 1014, we held:

"Primary elections are component elements of right of suffrage, and necessary prerequisite to general election."

A run-off primary election, contrary to the majority opinion, will in fact and in law be required to be held in every precinct within the confines of the state of Oklahoma, so long as there are either "men or measures" to be voted upon. Atwater v. Hassett, supra.

Independently of fine reasoning and judicial construction, the average citizen of this state has heretofore believed, was justified in believing by our decisions, and yet believes that the "next election held throughout the state," as used in the admittedly applicable constitutional provision, embraces the mandatory primary election. Of course there may not be a satisfactory election in so far as some candidates are concerned, but the Constitution, being a frame of government, should be interpreted as the average sovereign citizen understands it, as we have heretofore interpreted it, and not as a shifting weather vane to meet whim, or fancy, or advantage of the moment.

The right of initiative reserved to the people under section 1, art. 5, Constitution, reverts to ancient writs. Petition of Rights (1628). In Oklahoma as a part of organic law we adopted the principles stated in the Declaration of Independence (1776), which principles concern largely the right of revolution, the right to change, amend or throw off the yoke of government, for justifiable grounds, when it is not responsive to the needs, rights, and liberties of the people.

We held in Looney v. Leeper, supra, that an official cannot by failure to perform ministerial duties thwart the people in the enjoyment of a constitutional mandate giving them right of voice.

We held in State ex rel. Dunlop v. Cruce, 31 Okla. 486,122 P. 237, that Governors and all other citizens must look to the law for guidance, that the determination of the law was a judicial question and function and that "compliance therewith" is purely a ministerial duty, for the performance of which, as a general rule, mandamus will lie. Therein this court issued the writ to subordinate executive officials.

In Re Initiative Petition, City of Cushing, 157 Okla. 54,10 P.2d 271, we held:

"The procedure prescribed by law for vitalizing and carrying into force the initiative and referendum provisions of the Constitution is not mandatory, but if substantially followed will be sufficient. If the end aimed at can be attained, the procedure should be sustained."

It is my view that the avenue of peaceful revolution and gentle reform of government should be kept open. That a closure of this as by the majority opinion may be fraught with dire governmental consequences.

BAYLESS, J., concurs.