UPDEGRAFF v. GARY

UPDEGRAFF v. GARY
1956 OK 177
298 P.2d 404
Case Number: 37357
Decided: 06/05/1956
Supreme Court of Oklahoma

PAUL W. UPDEGRAFF, PLAINTIFF IN ERROR,
v.
RAYMOND GARY, GOVERNOR OF OKLAHOMA, DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 Mandamus is properly denied where the petitioner fails to show a clear legal right thereto.

Appeal from the District Court of Oklahoma County; W.A. Carlile and Glen O. Morris, Judges.

Proceeding in mandamus by Paul Updegraff, plaintiff, against Raymond Gary, Governor of the State of Oklahoma, defendant. From an order of the trial court denying the writ, plaintiff appeals. Affirmed.

Paul Updegraff, Norman, pro se.

Mac Q. Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., Ned Looney, Charles E. Dierker, Oklahoma City, for defendant in error.

JOHNSON, Chief Justice.

¶1 This is an appeal by plaintiff, Paul W. Updegraff, from an order of the District Court of Oklahoma County refusing to issue a writ of mandamus requiring the Honorable Raymond Gary, Governor of the State of Oklahoma, to place on the ballet for the primary election July 3, 1956, all initiative petitions and referred measures accepted by the Secretary of State of which the Governor had been notified.

¶2 The plaintiff alleged in his petition that it was the ministerial duty of the Governor under

¶3 Plaintiff's prayer for relief reads:

"Wherefore, petitioner prays this Honorable Court
to issue an alternative writ of mandamus to the
Honorable Raymond Gary, Governor of Oklahoma, for him
to show cause why he should not place on the ballot
on July 3, 1956, all initiative and referendum
questions accepted by the Secretary of State, and of
which the Governor of Oklahoma, Raymond Gary, has
been notified. And your petitioner further prays that
the alternative writ be granted, and, upon hearing,
that a peremptory writ be granted compelling the
Honorable Raymond Gary to perform the ministerial
duty of placing said initiative and referendum
questions upon the ballot for vote on July 3, 1956."

¶4 Thus the sole issue involved is whether under the law the Governor may be required by writ of mandamus to designate July 3, 1956, as a special election and to place thereon all duly certified initiative and referred measures.

¶5 Article 5, Sec. 3 of the Constitution of Oklahoma provides as follows:

"Referendum petitions shall be filed with the
Secretary of State not more than ninety days after
the final adjournment of the session of the
Legislature which passed the bill on which the
referendum is demanded. The veto power of the
Governor shall not extend to measures voted on by the
people. 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. 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. Any measure referred to the
people by the referendum shall take effect and be in
force when it shall have been approved by a majority
of the votes cast thereon and not otherwise.
"The style of all bills shall be: `Be it Enacted By
the People of the State of Oklahoma.'
"Petitions and orders for the initiative and for
the referendum shall be filed with the Secretary of
State and addressed to the Governor of the State, who
shall submit the same to the people. The Legislature
shall make suitable provisions for carrying into
effect the provisions of this article."

¶6

"Whenever a petition is accepted and its title has
been decided upon the Secretary of State shall, in
writing, notify the Governor, who forthwith shall
issue a proclamation setting forth the substance of
the measure and the date of the referendum vote."

¶7

"Whenever any measure shall be initiated by the
people in the manner provided by law, or whenever the
referendum shall be demanded against any measure
passed by the Legislature, 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."

¶8 In State ex rel. Williamson v. Carter, 177 Okl. 382, 59 P.2d 948, it is stated:

"The state election board is without authority to
submit an initiated measure to a vote of the people
at a runoff primary election, in the absence of a
proclamation by the Governor authorizing such
submission; said runoff primary election not being
the `next election held throughout the State' within
the meaning of section 3, article 5 of the
Constitution."

¶9 In the opinion it is stated:

"There is no case by this court which has
definitely attempted to construe said section. In the
case of Simpson v. Hill, 128 Okl. 269, 263 P. 635,
637, 56 A.L.R. 706, this court after quoting said
section, said: `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 be submitted at a
special election. The election of October 2, 1923,
was a special election. * * *
"We are therefore of the opinion that as used in
section 3, article 5 the words `next election held
throughout the State' has the same meaning as the
`next regular general election' as used in section 1
of Article 24 of the constitution. * * *"

¶10 Article 24, Section 1 of the Constitution provides:

"Any amendment or amendments to this Constitution
may be proposed in either branch of the Legislature,
and if the same shall be agreed to by a majority of
all the members elected to each of the two houses,
such proposed amendment or amendments shall, with the
yeas and nays thereon, be entered in their journals
and referred by the Secretary of State to the people
for their approval or rejection, at the next regular
general election, except when the Legislature, by a
two-thirds vote of each house, shall order a special
election for that purpose. If a majority of all the
electors voting at such election shall vote in favor
of any amendment thereto, it shall thereby become a
part of this Constitution.
"If two or more amendments are proposed they shall
be submitted in such manner that electors may vote
for or against them separately."

¶11 Section 3 of Article 5 of the Constitution is not self-executory. Simpson v. Hill, supra.

¶12 In conformity with the directions in Section 3 of Article 5 of the Constitution the Legislature enacted the provisions above set out.

¶13 State ex rel. Williamson v. Carter, supra, discusses and analyzes fully each case in which this court has considered statewide or general elections under the above constitutional provisions.

¶14 It appears from the foregoing that the Governor may, in his discretion, call a special election for the submission of an initiated or referred measure, or he may, in his discretion, designate the mandatory primary election as a special election for such purpose. See

¶15 We have repeatedly held that mandamus is properly denied where petitioner fails to show a clear legal right thereto. McDonald v. Oklahoma Real Estate Commission, Okl., 268 P.2d 263; State Highway Commission v. Green-Boots Construction Co., 199 Okl. 477, 187 P.2d 209

¶16 Affirmed.

¶17 WILLIAMS, V.C.J., and WELCH, CORN, DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur.

¶18 HUNT, J., concurs in result.