125 P. 303 (Or. 1912), State ex rel. McNary v. Olcott
| Judge | BURNETT, J., concurs only in the result of this opinion. EAKIN, C.J. (dissenting). |
| Parties | STATE ex rel. McNARY, Dist. Atty., v. OLCOTT, Secretary of State. |
| Docket Number | . |
| Citation | 62 Or. 277,125 P. 303 |
| Court | Oregon Supreme Court |
| Date | 23 July 1912 |
Page 303
Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.
Action by the State, on the relation of John H. McNary, District Attorney of the Third Judicial District, against Ben W. Olcott, as Secretary of State. From the judgment, defendant appeals. Reversed, and suit dismissed.
Eakin, C.J., dissenting.
[62 Or. 277] This is a suit brought by the state of Oregon, on the relation of John H. McNary, against Ben W. Olcott, secretary of state, to enjoin the defendant[62 Or. 278] from placing upon the ballot a referendum upon an appropriation for the benefit of the State University.
The facts set forth in the complaint are substantially the same as alleged in Friendly v. Olcott, 123 P. 53, and need not be restated here. In that case we held that a private citizen could not bring a suit of this character, and dismissed the suit; and thereafter this suit was instituted upon the relation of the district attorney of the Third Judicial district, having for its object the same relief that was sought in the former proceeding. We regard it as settled by our former opinion that the right to bring a suit to enjoin the secretary from certifying or printing upon the official ballot the title or number of any measure, when it is shown to be not legally sufficient, resides in the district attorney, and we will not further discuss that phase of the case.
Section 3474, L. O.L., provides that, "on a showing that any petition filed is not legally sufficient, the court may enjoin the secretary of state and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure." On behalf of defendant it is contended that, by the words "legally sufficient," as here used, it is meant that the petition shall be regular upon its face, and that, if a petition, regular upon its face, shall be presented, the court cannot go behind its apparent regularity to inquire into its genuineness. We cannot [62 Or. 279] assent to this view. It is conceded that there is no power granted to the secretary of state to call witnesses and examine into the facts to determine the validity of any petition. His powers are not judicial, but ministerial; and if this power does not reside in the courts a petition, consisting wholly of forged names, can be presented, and the public put to the expense of printing the measure and submitting it to a vote. This would be giving a forced and unnatural construction of the law in favor of fraud. The Legislature never contemplated such a vicious construction. We are of the opinion that by the term "legally sufficient" the Legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law.
It is also contended that the filing of the petition is a legislative act, and consequently beyond the jurisdiction of the courts to investigate; but this contention is also unsound. The signing and filing of a petition is a matter preliminary to the legislative act. It is that which calls the legislative power into action. It is more a legislative act than the placing of a candidate's name for the state Legislature upon the ballot is a legislative act. If the candidate for legislative honors presents a petition, signed by the required number of legal voters, and in other respects complying with the law, his name is entitled to go upon the ballot. If the partisan of a referendum measure presents a like petition, the measure is entitled to go upon the ballot. Any other construction would place it in the power of one dishonest person, or a number of such, to hold up and delay any measure, no matter how meritorious, by means of a fraudulent petition. By this means the whole machinery of the state government could be
Page 305
held up. The courts, the asylums, the penitentiaries, the various state institutions,[62 Or. 280] could be deprived of the means necessary to sustain their existence by the fraudulent act of one or a few persons. Such is not the law.
The question of jurisdiction being settled, we now come to the principal questions that constitute the gist of this controversy:
(1) Are the petitions in such form as to substantially comply with sections 3471, 3472, and 3473, L. O.L.? Such sections, so far as they relate to the matter now under consideration, are as follows:
"Sec. 3471. Form of Initiative Petition. The following shall be substantially the form of petition for any law, amendment to the Constitution of the state of Oregon, city ordinance or amendment to a city charter, proposed by the initiative:
"Warning.
"It is a felony for any one to sign any initiative or referendum petition with any name other than his own, or to knowingly sign his name more than once for the measure, or to sign such petition when he is not a legal voter.
"Initiative Petition.
"To the honorable __________, secretary of state for the state of Oregon (or to the honorable __________, clerk, auditor, or recorder, as the case may be, for the city of _____):
"We, the undersigned citizens and legal voters of the state of Oregon (and of the district of _____, county of _____, or city of _____, as the case may be), respectfully demand that the following proposed law (or amendment to the constitution, ordinance, or amendment to the city charter, as the case may be), shall be submitted to the legal voters of the state of Oregon (district of _____, county of _____, or city of _____, as the case may be), for their approval or rejection at the regular, general election, or (regular or special city election), to be held on the _____ day of _____, A.D. 19___, and each for himself says: I have personally signed this petition; I am a legal voter of the state of Oregon (and [62 Or. 281] of the district of _____, county of _____, city of _____, as the case may be); my residence and post office are correctly written after my name.
"Name __________ Residence _____, Post Office _____. (If in a city, street and number.)
"(Here follow twenty numbered lines for signatures.)
"Sec. 3472. Every such sheet for petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed by the initiative petition; but such petition may be filed with the secretary of state in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not more than twenty signatures on one sheet shall be counted. When any such initiative or referendum petition shall be offered for filing, the secretary of state, in the presence of the Governor and the person offering the same for filing, shall detach the sheets containing the signatures and affidavits and cause them all to be attached to one or more printed copies of the measure so proposed by initiative or referendum petitions; provided, all petitions for the initiative and for the referendum and sheets for signatures shall be printed on pages seven inches in width by ten inches in length, with a margin of one and three-fourths inches at the top for binding; if the aforesaid sheets shall be too bulky for convenient binding in one volume, they may be bound in two or more volumes, those in each volume to be attached to a single printed copy of such measure; the detached copies of such measure shall be delivered to the person offering the same for filing. If any such measure shall, at the ensuing election, be approved by the people, then the copies thereof so preserved, with the sheets and signatures and affidavits, and a certified copy of the Governor's proclamation declaring the same to have been approved by the people, shall be bound together in such form that they may be conveniently identified and preserved.
"Sec. 3473. Each and every sheet of every such petition containing signatures shall be verified on the back thereof, in substantially the following form, by the person [62 Or. 282] who circulated said sheet of said petition, by his or her affidavit hereon and as a part thereof:
"State of Oregon, County of _____, ss.:
"I, _____, being first duly sworn, say: (Here shall be legibly written or typewritten the names of the signers of the sheet), signed this sheet of the foregoing petition, and each of them signed his name thereto in my presence; I believe that each has stated his name, post office address and residence correctly, and that each signer is a legal voter of the state of Oregon and county of _____ (or of the city of _____, as the case may be).
"(Signature...
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