State Ex Rel. v. Mathews , 134 Okla. 288 ( 1928 )

The action is by all parties admittedly brought to determine whether or not State Question No. 100, described in the majority opinion, is a constitutional enactment. The writer dissents reluctantly, for he is not unaware that the complicated tax system in Oklahoma has worked great injustice, as well as in many instances long delays. But, as was suggested at the time of the oral presentation of this cause, this is largely due to the tax levying authorities in the various counties and municipal subdivisions in the state resolving every possible doubt in the tax statutes in favor of taking more revenue from the heavily burdened taxpayers, instead of resolving the doubt in their favor, whenever any exists under the various provisions authorizing tax levies. As it appears to the writer, the evil cannot be remedied by an unworkable enactment such as the matter now before the court, even if by stretching the constitutional provisions, because we have such power arbitrary, we may hold it not violative thereof.

An elucidation in regard to each proposition will not be attempted. The writer is not unaware that propaganda in behalf of a matter of this sort spread out to the people as a matter of common knowledge, was done in the instant case, securing public acclaim, with but few individuals knowing one thing about the evil existing, and whether or not the proposed remedy will cure. Each recurring Legislature, to say nothing of initiative provisions, has, without a proper comprehension of the tax code of Oklahoma, thrown a boulder into the delicately adjusted machinery for raising revenue.

The matter before the court purports to be a legislative enactment adopted by virtue of section 3, article 5, of the Constitution of the state, and the statutes vitalizing the same. In regard to initiative measures, the Constitution says:

"Any measure referred to the people by the initiative shall take effect and be in force when it shall have been approved by a majority of the votes cast in such election."

There are three characters of state-wide elections in Oklahoma, and only three.

First. The regular election, held in November each two years. This is required by law.

Second. The mandatory primary election, held the first Tuesday in August each two years. This is required by law.

Third. A special election, which may be ordered by the Legislature of the state, if done in a proper manner, or ordered by the Governor of the state, in accordance with legislative authority.

Section 6653, C. O. S. 1921, which was an act of the Legislature of 1916, provides:

"Whenever any measure shall be initiated by the people in the manner provided by law * * * same shall be submitted to the people for their approval or rejection at the next regular election; provided, the Governor shall have power in his discretion to call a special election to vote upon such questions or to designate the mandatory primary election as a special election for such purpose."

This section clearly recognizes the three classes of elections above mentioned. Had it gone to the regular November election, certainly there must have been cast for it affirmatively a majority of all votes cast in the election. The fact that it authorizes the Governor to designate the mandatory primary at which such a question may be voted on in no manner alters the character of a mandatory primary election into that of a special election on an initiative measure. The said section 3, article 5, in language too plain to be interpolated out of existence, says the measure must receive a majority of the votes cast in such election. This mandatory primary is as much required by law as the November election — and it is held because of the Constitution and statutes of the state — not by reason of the call of the Governor. Perhaps it did receive a majority of the votes cast in the primary throughout the state. Other sections of the statute require the precinct officers and the county officers in turn to certify to the State Election Board a record showing just how many persons voted in the election, and that the State Election Board shall certify the same to the Secretary of State, where it shall be made a permanent record. Certainly there was a basic purpose for this, to wit, that the initiative matter might be affirmatively shown by the permanent records of the office of the Secretary of State to have been adopted under the sole provision of law, to wit, article 5, section 3, of the Constitution, that would give it any validity. It is required by law that the ballot on the initiative measure shall be given by the precinct election officers to every voter who presents himself.

Why, then, should any difference exist as to the ratio required to adopt? The opinion loses sight of the force of the phrase "In the election." What was its force?

It must be borne in mind, we have before us the attempted exercise of the power reserved by the people to legislate directly. The electorate on the day of the election is in fact the Legislature! Strongly analogous to the constitutional requirement that a bill before the Legislature shall receive on final passage a majority of all persons elected to and constituting the Senate and the House. Did the Constitution not so provide as small a number as 28 members of the House might, with a corresponding ratio of the Senate, enact a proposed bill into a law, So. too, if we read out of existence the constitutional provision on direct legislation, to wit, the initiative, that the proposed bill shall have a majority of all votes cast "in such election," this salutary provision of the basic law of the state is reduced to as much an absurdity as if the Legislature could pass a bill without a constitutional majority. For, may we not ask, where is the stop line, if it is not to be found in that portion of the Constitution above quoted? Every elector given a ballot on the proposed initiative measure becomes a voter in the election, and upon his action, whether it be for or against the measure, or whether he refuses to vote on it at all, and he is a factor to be considered in determining whether it was adopted or rejected. If he votes at all in the election, he must be included in the sum total of all voters in the election, certified to the Secretary of State. May we not go a little further — the record, if there were any, as required by law, in the office of the Secretary of State would doubtless show more than 600,000 of the initiative ballots given to electors throughout the state who voted in the election. If only two in the entire state saw fit to vote for the proposed measure, and one against it, the reasoning of the majority opinion would declare the proposed measure adopted as the law of the state. Such an interpretation is an innovation on constitutional legislation, whether it be by the Legislaure or directly by the people, and its effect is that section 3 of article 5, requiring that a matter initiated shall receive a majority of votes castin the election, means nothing.

There is nothing before this court that even indicates that the record of the Secretary of State's office shows that this matter received a majority of the votes cast in the election.

Second, the opinion sustains the provision authorizing the Governor to select three district judges to compose this court. District judges are constitutional officers. They preside over constitutional courts. It is not argumentative in support of the proposition here to say that because the Constitution authorizes the Chief Justice, when necessary, to assign district judges from one district to another, that an act of this sort is not foreign to any power given the Legislature. The Legislature has power to increase the number of the members of the Supreme Court of the state. If it saw fit to do so, it could just as well authorize the Governor to designate certain district judges to be members of the Supreme Court of the state, while they were judges of district courts of the state, as to designate them to be judges of the court here sought to be created. Unquestionably the Legislature might put upon constitutional officers additional duties within their jurisdiction, but it is an innovation, to put it mildly, to create a new court, and make judges of courts created by the Constitution judges of such new court, especially when the Constitution itself provides that constitutional officers shall give all of their time to the performance of their official duties, and the duty here imposed is one to be performed by a court altogether separate and distinct from the district court, but to be composed of district judges. The incongruousness of such an attempt at legislation is mirrored in its absolute futility, if, which he would have a right to do, every district judge in the state refused to leave his constitutional post of duty and perform this pretended statutory duty in a place where he is not authorized to perform duties as a constitutional officer. If this should happen, the pretended bill would break down of its own provisions, for there is nothing therein that gives anybody any authority to require the district judges to perform these duties; neither are they required to take any oath of office. They have no power to pay witnesses, and no money or means of getting it. It is called a court, but it lacks every element of being a court, or any tribunal that can in any wise function, unless some constitutional officer known as a district judge sees fit to leave the performance of his sworn duties as judge of his district, and come to the seat of government, and go through the performance of pretending to act as a court outside of the jurisdiction which the Constitution vests in the court of which he is judge.

These are only a few of the many reasons why the writer cannot concur in this opinion.