Opinion
No. 28305.
May 14, 1940.
(Syllabus.)
STATUTES — Protest to sufficiency of initiative petition dismissed where not prosecuted with due expedition.
Under section 5874, O. S. 1931, 34 Okla. St. Ann. § 8, in a proceeding to protest the sufficiency of an initiative petition, it is the duty of the protestants to establish such insufficiency with due expedition, and when said protestants have been afforded an opportunity to establish such protest and have failed to do so, the proceeding will be dismissed.
Original proceeding in the Supreme Court to review a finding of the Secretary of State declaring sufficient Initiative Petition No. 166, State Question No. 241, amending the Medical Practice Act. Protest dismissed.
Tench Tilghman, McPherren Maurer, and Fred Sikes, all of Oklahoma City, and H.C. Ivester, of Sayre, for protestants.
Chas. West, of Oklahoma City, for proponents.
This is a proceeding brought under the provisions of section 5874, O. S. 1931, 34 Okla. St. Ann. § 8, to review the certification of the declaration of the sufficiency of an initiative petition.
On September 20, 1937, there was filed with the Secretary of State Initiative Petion No. 166, State Question No. 241. On December 4, 1937, the Secretary of State declared the same to be sufficient and certified the sufficiency of said petition. The protestants, C.L. Clearman and W.B. Catto, appealed from said decision under the provisions of section 5874, supra, and after the filing of the case in the Supreme Court the matter was referred by the court to the referee for hearings in a proceeding de novo.
The Secretary of State found that said petition consisted of 3,441 pamphlets consisting of 65,421 legal voters. The order of reference was dated July 2, 1938, following which order the referee heard the matter and concluded his hearings on November 7, 1938. On this date it was admitted by the protestants that the evidence introduced in protest of the sufficiency of the petition was insufficient to establish the protest. Thereupon the protestants applied for and were granted a continuance under order of November 9, 1938, said continuance being for 60 days. In this application it was stated that the protestants wished to examine the books of the registrars of the various counties involved to determine whether the protestants wished to go forward with their evidence in the contest of names on said petition deemed to be not registered on the books of the county registrars of various counties involved. The 60 days expired on January 8, 1939, and no application was made by the protestants to produce any further testimony. Thereupon the court on its own motion ordered the cause set for final hearing on January 18, 1940, at which time one of the protestants appeared and asked for a continuance. The proponents moved to dismiss the proceeding on the ground that under the provisions of section 5874, supra, the protestants had in effect abandoned the protest.
We are of the opinion that the motion to dismiss must be sustained and the protest dismissed. Under the record, when the hearings were stopped on November 7, 1938, the protest was insufficient. No further showing was ever made and more than a year elapsed and protestants made no move. The above section anticipates an expeditious protest conducted in good faith and with the view to a speedy settlement of the issues as to the sufficiency or insufficiency of the petition. We hold, therefore, that the record discloses that the protest is insufficient and the proponents should not be further delayed.
The protest is dismissed.
BAYLESS, C. J., WELCH, V. C. J., and OSBORN, GIBSON, HURST, DAVISON, and DANNER, JJ., concur. RILEY and CORN, JJ., absent.