State Ex Rel. v. State Election Board , 192 Okla. 275 ( 1943 )

The question presented is whether this court should assume original jurisdiction, bring before it all the parties necessary for the complete determination of the cause, ascertain the facts as to whether the proposed amendment received the constitutional majority required for its adoption (sec. 1, art. 24, State Constitution), and, if it is found that it received such majority, make such orders as may be necessary to carry into effect the will of the people. I think this question should be answered in the affirmative. If, as the county election board of Grady county certified, 10,870 votes were cast in that county at the November, 1942, election, the proposed amendment failed to receive the required constitutional majority. But if only 4,945 votes were cast in that county, as the Attorney General alleges and the defendants do not deny, then the proposed amendment received the constitutional majority required for its adoption.

A mixed question of fact and law is presented. In the final analysis, the determination of whether a proposed constitutional amendment has been adopted calls for the exercise of a judicial function, which should be exercised where, as here, jurisdiction is properly invoked. State v. State Board of Equalization, 107 Okla. 118, 230 P. 743.

Section 6, art. 2, of the State Constitution provides that "the courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong . . .; and right and justice shall be administered without sale, denial, delay, or prejudice." This is a broad statement of public policy, found in the Bill of Rights, to which the courts should, where possible, give effect.

By section 2, art. 7, of the State Constitution there is conferred upon this court four grants of power or jurisdiction: (a) appellate jurisdiction: (b) "general superintending control over all inferior courts and all commissions and boards created by law"; (c) "power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same"; and (d) "such other and further jurisdiction as may be conferred upon it by law." A similar constitutional provision is found in the Constitutions of many of the other states. State v. Kight, 49 Okla. 202, 152 P. 362; 112 A. L. R. 1352-1356. The power of superintending control and the power to issue and hear and determine such writs, given this court by said section, are separate and distinct, and neither qualifies or limits the other. 14 Am. Jur. 462; 112 A. L. R. 1359, note. This section, insofar as it gives this court original jurisdiction to issue the named writs and to exercise superintending control, is self-executing.

The majority opinion, in effect, holds that because of procedural deficiencies, this court is without jurisdiction to correct the wrong complained of. I cannot agree. The county election board of Grady county could be made a party to this original proceeding, if that is deemed necessary, and compelled to assemble and certify the correct returns, or this court could take evidence as to the true number of votes cast, and direct the State Election Board to again tabulate the total votes cast throughout the state, including the number of votes found to have been actually cast in Grady county, and to again certify the result of the election on the amendment. The power of superintending control is very broad (Matney v. King,20 Okla. 22, 93 P. 737; Kelly v. Kemp, 63 Okla. 103, 162 P. 1079) and its exercise rests in the sound discretion of the court. Loeb v. Collier, 131 La. 377, 59 So. 816; 112 A. L. R. 1356, note. This court has the inherent and implied power to do whatever may be necessary to carry out its power of superintending control. And the question of whether the court will in a given case exercise its power of superintending control "is one of judicial policy rather than one relating to the power of the court." Re Phelan,225 Wis. 314, 274 N.W. 411, 112 A. L. R. 1345. In 112 A. L. R. at page 1357, in the annotation, it is said that "the power of superintending control is not limited by forms of procedure or by the writ used for its exercise." And in the same volume, at page 1356, in the annotation, it is said:

"The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted."

For this court to refuse to hear this case on its merits and to give such relief as the facts may warrant is to disregard the mandate that there shall be a "remedy afforded for every wrong" as provided by section 6, art. 2, above, and to refuse to perform its constitutional function of superintending control. Where fundamental public rights, such as the right of the people to amend the Constitution, are involved, this court should not, because of technicalities in procedure, proclaim its inability to right serious wrongs where, as here, its jurisdiction is properly invoked. The powers given by section 2, art. 7, above, were designed for the very purpose of giving this court "original jurisdiction in all judicial questions affecting the sovereignty of the state, its franchises or prerogatives or the liberties of the people." 7 Rawle C. L. 1075; 14 Am. Jur. 457. See, also, State v. Frear, 148 Wis. 456, 134 N.W. 673, L. R. A. 1915B, 569. It is true that this court should scrupulously refrain from usurping power, but the converse is also true — it should certainly exercise the powers given it by the Constitution, especially where, as here, by so doing it may prevent the defeat of the will of the people of the state because of a purely technical error in tabulating or certifying the election returns in a single county. To do the one is no worse than to refuse to do the other.

My views on this general question were fully expressed in State ex rel. Hayman v. State Election Board, 181 Okla. 622,75 P.2d 861, and I need not repeat them here.

I think this court has the power to give relief both under its power of superintending control and under its power to issue a writ of mandamus "and to hear and determine the same," and that it should do so. I therefore dissent to the majority opinion.

CORN, C. J., and ARNOLD, J., concur in this dissent.