Simpson v. Hill

*270 BItANS'ON, O. J. Ttoe appeal is from the district court of Oklahoma county. In this ■court the parties appeared as there. The plaintiff, John A. Simpson, as a taxpayer, sought an injunction against the defendants to prevent their incurring any expense or obligation against the state, or which would or might cause the state, or officers thereof, to incur expense in numerous and vexatious suits, by reason of a purported call of an extraordinary session of the Eleventh Legislature of the state of Oklahoma. The purported call, as pleaded, is in words and figures as follows: “To the Members of the Eleventh Legislature of the State of Oklahoma: “In obedience to a petition signed by a majority of the members of the House of Representatives of the Eleventh Legislature, asking that the Legislature be convened for purposes authorized by article 8 of the Constitution of the state of Oklahoma, and the undersigned being in possession of such request, do hereby call the Eleventh Legislature in extraordinary session to assemble at the State Capitol in Oklahoma City, on the 6th day of December, 1927, at 12:00 o’clock noon. “This call is made under the inherent power and authority of the legislative branch of this government to convene at any time they may see fit, for such purposes as are named in the call, and upon the further authority of section 1 of article 8A of the Constitution of the state of Oklahoma, and other constitutional and statutory provisions of said state. “This meeting of the Legislature is for the purpose of carrying into effect the provisions of article 8 of the Constitution of the state of Oklahoma. “Given under our hands and seals this 21st day of November, 1927. “E. P. Hill, “Representative of Pittsburg County. “Tom Johnson, “Representative of Pushmataha County. “H. Tom Kiglkt, “Representative of Rogers County. “Robert. O. Graham, “Representative Fifth District of Oklahoma County.” Plaintiff alleges further that the defendants intend to interfere with the orderly and legal performance of the duties of the officers of the executive and judicial departments of the state government, in an unlawful and vexatious manner, unless tihe said defendants are prevented by order of court from carrying out the intended organization of the Eleventh Legislature into an extraordinary session..under the said call. It is clear from the oral argument that ■the defendants assume to assemble the Legislature and organize the same, by reason: First, of Initiative Bill No. 79; and second, by reason of the alleged inherent power of the Legislature to convene itself for inquisitorial purposes, on its own initiative. ■Whether the first pretended authority really exists depends upon whether Initiative Bill No. 79 has any force as law. On the 13th day of August, 1923, the Honorable J. 0. Walton, as Governor of the state of Oklahoma, issued his proclamation under authority and by direction of the Legislature. calling a special election for October 2, 1923, for a vote on certain constitutional amendments proposed by the Legislature of tihe state, at its biennial session be-ginninfg the first Tuesday after the first Monday in January, 1923. After said proclamation was issued, initiative petitions were filed proposing the provisions found in said Initiative Bill No-. 79, which, in effect, provided that on a majority petition of the elected' members of the Legislature it could convene on a day in the petition set. It was placed on a ballot at said special election, and received a majority vote. The Legislature did not order that this initiated measure be submitted at tihe said election. Neither did. the Governor issue any proclamation or order directing the submission of the same to the people of the state of Oklahoma on said1 date, or on any other date when an election was held. There being no order of the Legislature, or ttoe Governor, the question is, Did the affirmative vote in favor of the said initiative measure give it any force and effect as law? It is settled by the authorities that the Constitution of a state cannot be amended, except in the exact method provided by the Constitution itself. Some of the authorities supporting this proposition are: City of Chicago v. Reeves, 220 Ill. 274, 77 N. E. 237; Warfield v. Vandiver, 101 Md. 78, 60 Atl. 538, 4 Ann Cas. 692; Commonwealth v. Bowman, 191 Ky. 647, 231 S. W. 35; Sims v. Sawyers, 85 W. Va. 245, 101 S. E. 467; Johnson v. Craft, 205 Ala. 386, 87 South. 375; State v. Donald, 160 Wis. 21, 151 N. W. 331; Crawford v. Gilchrist, 64 Fla. 41, 59 South. 963, Ann Cas. 1914B, 916; State ex rel. Atty. Gen. v. Board of Equalization, 107 Okla. 118, 230 Pac. 743. If the purpose and effect of Initiative Bill No. 79 was to amend article 8 of the Constitution, it falls under the ban of the settled law. *271 Sections 2 and 3 of article 5 of tike Constitution deal with the question of initiating measures and referring same to a vote of the people. In section 3 is found this language : “All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when -the Legislature or the Governor shall order a special election for the express purpose of making such reference.” It is clear that such initiative measures must go to the next regular general election held throughout the state, unless the Governor or the Legislature shall order that it he submitted at a special election. The election of October 2, 1923, was a special election. Not having been submitted at the said special election by direction of the Governor or the Legislature, Initiative Measure No. 79 was not presented for consideration of-the people as by the Constitution of -the state directed, and it has no force and effect. In tihe oral argument little, if any, contention was made that it was effective, but we have deemed it better to set out the reasons. The second question grows out of that part of the call, quoted supra, based on the alleged inherent power of the Legislative branch of the state government to convene upon the order of the members thereof. The state is a political entity, or sovei’eign. Its reason for legal existence is the recognized -necessity for rules regulatory of the relations of men. The sovereign owes its existence to its people, for they formed it and maintain it in the exercise of that right, which, by common consent, society concedes inheres in the members thereof. In the exercise of such rights, the Constitution of Oklahoma was formed, creating governmental agencies, whose powers and duties are defined therein. Such agencies cannot usurp the rights which inhere in the people and in the people alone, but such agencies have only such rights and powers as the people have surrendered to them by the organic law.' We shall not undertake to write a commentary upon what the law ought to be. No- court can justify itself in a lengthy dissertation on subjects of governmental policy. We are not unmindful of the rights of the public to comment on or criticise the declaration of the law as the court finds it to be, but truth impels us in passing to say much of it grows out of ignorance of the law and the desire of certain agencies to mislead, intentionally, the reading public, uninformed as to the provisions of their constitutional government and the limitations which the people themselves ¡have placed upon such agencies, but the court cannot justify itself in failing to declare what the law is, irrespective of the many attempts to distort and mislead. Our form of 'government, both national and state, is denominated republican. In this, as in other states, the charter creating the government is denominated its Constitution. In the Union of states, of which Oklahoma is one, each state is required by the Constitution of -the nation to- be republican in form. That form goes to the division or distribution of powers, to branches of government commonly known as governmental agencies. Such agencies are universally referred to and known as three in number, to wit, legislative, executive, and judicial. In the Oklahoma Constitution this division of governmental agencies is specifically set out in article 4 (Williams’ Annotated Constitution, section 50). It reads as follows: “The powers of the government -of the state of Oklahoma shall be divided into, three separate departments: The legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.” The last clause, “and- neither shall exercise the powers properly belonging to either of the others,” is an inhibition. It is found in the said article and is strong language, and used to prevent one of the said branches of state government from undertaking to do what the organic law of the state directs shall or may be done by another. Legislative Department. Article 5 (Williams’ Annotated Constitution) creates the legislative department in this language: “The legislative authority of t)he state shall be vested in a Legislature, consisting of a Senate and a House of Representatives. Section 26 of said article 5 provides: “The members of the Legislature shall meet at the seat of government on the first Tuesday after the first Monday in January at twelve o’clock noon, in the year next sue-ceeding their election, or upon such other day as may be provided by law.” The succeeding section (27), provides: “The Legislature shall hold regular biennial sessions as herein provided, but this *272 shall not prevent the calling of a special session of the Legislature by the Governor.” Section 29 of said article 5 provides: “The House of Representatives shall, at the beginning of each regular session and at such other times as may he necessary, elect one of its members Speaker.” Section 28 of said article 5 provides: “The Senate shall, at the beginning of each regular session and at such other times as may be necessary, elect one of its members President pro tempore, who shall preside over its deliberations in the absence or place of the Lieutenant Governor. * * *” Section 42 of said article 5 provides: “In any legislative investigation either house of the Legislature, or any committee thereof, duly authorized by the house creating the same, shall have power to punish as for contempt, disobedience of process, or contumacious or disorderly conduct, and this provision shall also apply to joint sessions of the Legislature, and also to joint committees thereof when authorized by joint resolution of both houses.” Prom these provisions it must be clear, unless the purpose is to confuse, that this legislative branch or agency of the state government is composed of two integral parts, to wit, the House of Representatives and the Senate, and that the two combined are the (Legislature, but are such only when convened and organized as by the said organic law of the state provided. In the said sections quoted, nor from any other section dealing with the legislative branch of the state government, is to be found any provision giving the members elected to the Legislature, as individuals, any power. When the members so elected are convened in biennial session, as provided by the said quoted section 27, and organized, they constitute and function as the Legislature, the said agency acting through its members as sworn officers, composing the respective branches of this department of state government. It is well recognized by all who know anything as to the basic or constitutional law of the state that the Legislature has both legislative and inquisitorial powers. There is nothing to be found in the Constitution, and no reason in logic why one of said powers should be exercised by the members when not constituted and organized as a Legislature. If the Legislature can function at all, it does so possessed of all the powers granted that branch of the state government. There is not to be found in the said article 5 any section or language which indicates that that body can do anything except as a Legislature, in session, and duly organized as such, except the specific provision that when impeachment charges have been preferred by the House of Representatives as one branch of the Legislature, they may be tried by the Senate as a court of impeachment, after the Legislature has adjourned. There is nothing to be found in article 8, dealing with impeachment and removal from office, which discloses expressly, or by implication, that the House of Representatives (this being the language of section 1, article 5: “The legislative authority of the state shall De vested in a Legislature consisting of a Senate and a House of Representatives”) can perform any function except when duly in session and duly organized as a House of Representatives, nor to indicate that such organization can be perfected except when the Senate convenes and is organized as provided in the Oonstitution. In the last sentence in section 3, article 8, dealing with impeachment and removal from office, we find this language: “The House of Representatives shall present all impeachments. ” This provision can mean nothing more (and it fully states that) than the House of Representatives is an integral part of the Legislature, and as such must present such charges. The succeeding section provides: “When the Senate is sitting as a court of impeachment, the Senators shall be on -oath, or affirmation, impartially to try the party impeached, and no person shall be convicted without the concurrence of two-thirds of the Senators present.” Language could not be clearer. The House of Representatives, as one of the co-ordinate branches of the legislative department of the state government, when the Legislature is convened and organized as provided by law, can exercise inquisitorial powers, and at no other time, and the charges, if any are preferred, must be preferred by such House of Representatives. At the election held the first Tuesday in November, 1926, the members of the Eleventh Legislature of the state of Oklahoma were elected. The said Legislature convened, as provided by said section. 27 of article-5, in its regular biennial .session. It continued in session, possessing both legislative and inquisitorial powers, until March 24, 1927, when, it adjourned sine die. It now appears that certain members of the House of Representatives seek to reconvene the Eleventh Legislature in extraordinary session. Able counsel were asked to point out in *273 the oral argument the constitutional provision which granted the authority here sought to be exercised. Honorable S. P. Freeling, formerly Attorney General of the state, as counsel for the defendants, made the statement, in substance, that in 1923 he and other able lawyers 'Of the state met in conference to devise the above-mentioned Initiative Bill No. 79. It must have appeared clear to counsel then that the authority now, claimed by the defendants was not to be found in the Constitution. Executive Department. We advert to the last clause in article 4, quoted supra: “And neither shall exercise the powers properly belonging to either of the others.” We do this to point out that in article 6 the executive department, or second agency of the state government, is,, by the Constitution, created. Section Í thereof provides: “The supreme executive power shall be vested in a Chief Magistrate, who shall be styled ‘The Governor of the State of Oklahoma’. ” Section 7 thereof provides: “Extraordinary or special sessions. The Governor shall have power to convoke the Legislature or the Senate only, on extraordinary occasions. At extraordinary sessions no subject shall be acted upon, except such as the Governor may recommend for consideration.” The Constitution made plain, by the said section, that the Governor possessed the power to convoke the Legislature in extraordinary session. This being true, the said inhibition in the last sentence of the said article 4 expressly prohibits the legislative branch, or any part thereof, from exercising this power. We reach this conclusion not by an independent interpretation of our constitutional provisions, although they are so clear that there is no room for confusion, unless confusion be the object and aim. The provisions of the California Constitution are as ours, article 3 thereof corresponding with article 4 quoted supra. In the case of French et al. v. Senate of State of California, 146 Cal. 604, 80 Pac. 1031, in the syllabus, the Supreme Court of that state said: “Under Const., art. 3, prohibiting any person charged with the exercise of powers properly belonging to one of the departments of government to exercise any functions pertaining to either of the others, except as expressly authorized by the Constitution, a session of the Legislature which has adjourned sine die cannot be reconvened upon mandate of the judiciary, nor be in any way again called together, except in special session and at the behest or the Governor, as provided by Const., art. 4, sec. 2, and article 5, sec. 9, authorizing the Governor to specially convene the Legislature on extraordinary occasions. ” In the impeachment trial of William Sul-zer, Governor of New Xork, the Court of Appeals (which is the court of last resort in that state, and required by its Constitution to sit with the Senate in such a trial), in effect approved a contention of the respondent therein on the question here involved. During the progress of said trial, it was urged in part (vol. 1, p. 79) : “Assuming, for the purpose of argument, that the function of the Assembly (the same as our House of Representatives — ours) in preferring articles of impeachment is judicial in its nature, although we shall later argue to the contrary, we urge that the conclusion of the Attorney General is unsound and his reasoning fallacious. “We have shown that every reference in the Constitution to ‘the Assembly’ is a definite and specific reference to it as one of the ‘houses’ of the Legislature. The Constitution does not recognize any entity under the name of ‘the Assembly,’ except that body which exists as a constituent branch of the Legislature. There is but one Assembly. It is ‘the Assembly.’ It is not one organism in respect to article 3 (the legislative provision — ours), and another when referred to in article 6 (the impeachment provision— ours) of the Constitution. “The mere fact that article 6 conferred upon the Assembly the power of impeachment * * * does not operate as a metamorphosis of the nature of that body. It is still ‘the Assembly’ and nothing more. It remains a constituent branch of the Legislature. It is not transformed into anything other or different than an integral part of the Legislature; a branch of it; one of its houses; endowed, if you please with the quasi judicial power of impeachment, but still acting merely within the orbit which the Constitution has assigned to it, as a part of the Legislature, and governed by the limitations imposed upon the Legislature. * * * “Nowhere in the state Constitution is the body which we know as ‘the Assembly’ referred to by any other characterization than as ‘the Assembly.’ * * * Nowhere in article 6 of the Constitution (the impeachment provisions — ours), which confers such alleged judicial power, nor in any other article of the Constitution, is there to be found a word or a syllable permitting the inference that when the Assembly acts as an accusing body, it is absolved from obedience to the beneficent limitations and restraints of the Constitution, which specifically and in clear and *274 unambiguous language refer to and affect 'tlie Assembly.’ * * * “There is no way known to the Constitution or to the law, by which the Assembly can be convened, except automatically on the first Wednesday in January, at the regular session, or by the iiroelamation of the Governor to meet in extraordinary session. But the regular session may have adjourned sine die, and the Governor may have refused to call an extraordinary session. * * * How can, the Assembly be convened under such circumstances? At whose instance? Certainly not at that of the private individual. * * * Certainly not by any member of the Assembly who should desire to assume authority to convene that body and ti usurp the functions vested exclusively in the Executive. It is inconceivable that the 150 members of the Assembly should spontaneously assemble, at one and the same place and at one and the same time. Who is to summon the assemblymen? Upon whose mandate are they to be called together? What is the penalty for the refusal of any of them to meet his fellows? * * * Where is the source of power which enables him, for such a purpose, and under such circumstances, to hale to a place of meeting and put under arrest the recalcitrant assemblyman?” —when Judge Cullen said (page 219, vol. 1) : “It is urged by the learned counsel for the managers that the assembly has the inherent right to meet at any time and present articles of impeachment. ITrom that doctrine I dissent in toto. It is the assembly that has the right * * * to impeach, but the assembly does not consist of the individual members of its body, except when they are duly assembled. * * * If we assume that any member of the Assembly or the Speaker may convene that body for the purpose of impeachment, the body so meeting would have no power to protect itself. It would he a scene of disorder, and before there had been any election of a Speaker, one member might convene it at one spot and one at another. It would lead to anarchy, and the extreme case that has been suggested that a Governor might commit treason, while theoretically possible to imagine, is quite improbable, and I think little weight should he given to it. Extreme cases do not control the constructions of statutes or Constitutions. * * *” During the lengthy oral argument, in the instant case, several times able counsel were asked if, during the history of the government of the American states, any Legislature was ever convened in extraordinary session for inquisitorial purposes or otherwise except upon order of the Chief Executive. No case was cited by counsel where inquisitorial authority was exercised •by the Legislature in extraordinary session, except -svhen it had been convened by the proclamation of the Governor. In. the Sulzer Case, from New York, the Legislature was in session by call of the Governor. It was true in the Eerguson Case,, from Texas; it was true in the Walton Case, from Oklahoma; and no case is cited; and none are to be found, where such was attempted otherwise. By analogy, the Constitution of the national government and the power and authority of the national Congress bear a close relation to the state governments. During its entire history, the national Congress never attempted to as-semb-e in extraordinary session except upon proclamation of the President. In the states, starting with the original thirteen and increasing to 48, no case is cited where any Legislature, after adjourning its regular session sine die, has ever, on the ipse dixit command of certain of its members, undertaken to convene in extraordinary session, except in Oklahoma, and as is witnessed in the document quoted hereinabove. The above declaration of the law of the state of Oklahoma on the subject here in question might have been evaded at this time, but this court is not unaware that it would be called upon to determine these exact questions, and we have acted upon the principle that it is our duty rather to embrace than to repel the settlement of uncertainties. This is not novel in the jurisprudence of the states, for, on a similar occasion, in the case of State ex rel. Postel v. Marcus, 152 N. W. 419, the Supreme Court of Wisconsin, in part, said: “While dealing with the subject suggested might be avoided at this particular time it does not seem best to do so; but ratuer to face the situation and solve it. Muen narm may come by uncertainty as to an important constitutional question being- permitted to exist until affairs, public and private, shall have been adjusted to a condition apparently legitimately created by a legislative effort.* * * The policy and duty here is rather to embrace than to repel opportunity to remove such uncertainties. “No feature of the judicial function is -of equal dignity with that which requires dealing with what is and what is not, really, -a part of the Constitution. * * * None requires an equal degree of care to reach a right conclusion and courage to pronounce it. The court may, and should, and must, on such great occasions, look to effects and consequences. Not to do so with the thought of hesitation, much less omission to do what duty to here and to the public requires; but as an inspiration to reach the highest at- *275 f ainable degree of certainty of tbe right being vindicated in the end.” ~ The law of Oklahoma is as we have stared il. It does not follow, however, that this court will direct an injunction be issued against private citizens from coming to Oklahoma Oity. If the members of the Legislature come to the Capitol, they come as individuals. They can. incur no obligation; they can perform no official functions, until the Chief Executive of the state exercises the discretion vested in him by the said section 7 of article 6 and calls the said body into extraordinary session. Otherwise, the Legislature of Oklahoma convenes in regular biennial session the first Tuesday after the first Monday in January, 1929, and for no purposes can function until then. MASON Y. C. J., and PHELPS, LESTER, HUNT, CLARK, RILET, and HEFNER, JJ., concur.