Opinion
No. 33843.
May 31, 1949.
(Syllabus.)
STATUTES — INITIATIVE AND REFERENDUM — Proceeding to review order made upon sufficiency of petition — Time for filing.
In a proceeding to review the order made upon the sufficiency of an initiative petition under the provisions of 34 O. S. 1941 § 8, it is essential that there be filed in the office of the Clerk of the Supreme Court a proceeding to commence such review within ten days from the date of the order entered by the Secretary of State.
Original proceeding by O.J. Fox to review an order of the Secretary of State with respect to the sufficiency of Initiative Petition No. 242, State Question No. 336, on motion to dismiss. Proceeding dismissed.
Uriel L. Harshfield and Jess L. Pullen, both of Oklahoma City, for appellant.
Edward M. Box and Chas. E. McPherren, both of Oklahoma City, for appeallee.
This is a proceeding to review an order of the Secretary of State in Initiative Petition No. 242, State Question No. 336.
On the 18th day of September proponent filed in the office of the Secretary of State a notice of appeal from the decision of the Secretary of State entered on the 14th day of September, 1948. Thereafter, on the 6th day of October, 1948, there was lodged in this court, by depositing in the office of the Clerk of the Supreme Court, a petition in error and transcript, said petition in error being prepared and presented by O.J. Fox, proponent of the initiative petition and appellant in this court.
A motion to dismiss has been filed for the reason that the proceeding was not lodged in this court within the statutory time. The motion to dismiss must be sustained. 34 O.S. 1941 § 8[ 34-8] provides that any citizen of the state, within ten days by written notice to the Secretary of State, and to the parties obtaining the order, may appeal from the order made by the Secretary of State to the Supreme Court from the decision made thereon.
In Ruth et al. v. Peshek, City Clerk, 153 Okla. 147, 5 P.2d 108, it is held that the procedure on appeal, from the decisions of the Secretary of State set out in the above section, applies generally to initiative petitions of all kinds.
In Re Springer, 75 Okla. 118, 182 P. 713, it was specifically held that the petition to review the final order of the city clerk came within the provisions of said section and must be filed within the ten-day period.
Also, in this connection, see In re Initiative Petition No. 2 of Cushing, 157 Okla. 54, 10 P.2d 271.
Petitioner cites and relies upon In re Initiative Petition No. 23, State Question No. 38, 35 Okla. 49, 127 P. 862, and Carmichael v. Holmes, Mayor, et al., 163 Okla. 27, 20 P.2d 1053. These cases are not in point and there is nothing therein suggesting that a citizen or party interested in the proceeding has the right to file a proceeding to review the order of the Secretary of State after the ten-day period provided by statute.
Since the proceeding was not commenced within the statutory period, the appeal must be and the same is dismissed.
DAVISON, C.J., ARNOLD, V.C.J., and GIBSON, LUTTRELL, HALLEY, and JOHNSON, JJ., concur.