In Re Initiative Petition No. 3.

WILLIAMS, J. (after stating the facts as above.) The first Legislature after the erection of the state passed an act entitled “an Act to provide for the carrying into effect the initiative and referendum powers reserved by the people in articles five'and eighteen of the Constitution of the state of Oklahoma, to regulate elections thereunder, and to punish violations of this act.” Section 6, art. 1, c. 44, of said act (Sess. Laws 1907-08, p. 444) provides: ” “Whenever an initiative petition or referendum petition shall be filed with the Secretary of State, he shall at once proceed to examine into its sufficiency. If any one desires to appear for or against it he shall receive testimony and arguments. Whenever such petition applies to a measure upon which -the initiative or the referendum is invoked for the state at large, his decision may be appealed from to the Supreme Court of the state, and the case shall have precedence over all others. If the court is adjourned it shall be immediately convened. In all other cases said appeal shall be to the district court of any county in-which a petition was circulated, and said district ocurt may hear and determine same, in term time or vacation. The appellants shall serve upon the Secretary of State written notice of appeal, and said Secretary of State shall thereupon transmit to the clerk of the court such of *493 tbe original papers and documents in the case as may be specified by the appellant or appellee. In case the court shall decide the petition is insufficient it shall state in what respect it is insufficient and return the petition to the committee of petitioners for correction, which corrections may be made and the petition returned to the Secretary of State within five days, and when so corrected and returned, the petition shall be considered filed as of the date that the original petition was presented for filing. No objection to the sufficiency of any petition shall be considered unless the same shall have been made in writing and filed within five days after the filing of the petition.” The validity of said act not being challenged by either party to this proceeding, for the purposes of this case we assume that an appeal will lie from the action of the Secretary of State to this court. There is no suggestion made by counsel on either side as to any insufficiency of the record before us, though there is contained therein neither the original nor any copy of the initiative petitions presented for filing or of the pamphlets. The Secretary of State having in substance held that the amendment as proposed was in strict compliance with the law, such order, nothing appearing'in the record to the contrary, is presumed here to be without error. As to the motion for a continuance, it was neither verified nor does it contain the necessary statement as to diligence and other facts to entitle the protestant to a continuance. In overruling this motion, the discretion of the Secretary of State is hot shown to have been abused to the prejudice of appellant. The allegations of the protestant that said petitions were not signed by a sufficient number of legal voters, and that more than 5,000 of the names attached thereto were not legal voters of this state or any precinct therein, fall for the lack of any evidence being introduced to sustain the same. It follows that the order of the Secretary of State is affirmed. All the Justices concur.