State ex rel. Morris v. Marsh

• Decision Date: 21 October 1968
• Docket Number: No. 37128,37128
• Citation: 183 Neb. 502,162 N.W.2d 262
• Parties: , 183 Neb. 521 STATE of Nebraska ex rel. Loren MORRIS, Appellee, Cross-Appellant, v. Frank MARSH, Secretary of State, State of Nebraska, Appellant, Cross-Appellee. Impleaded with Clarence A. H. Meyer, Attorney General, State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 262

162 N.W.2d 262

183 Neb. 502, 183 Neb. 521

STATE of Nebraska ex rel. Loren MORRIS, Appellee, Cross-Appellant, v. Frank MARSH, Secretary of State, State of Nebraska, Appellant, Cross-Appellee Impleaded with Clarence A. H. Meyer, Attorney General, State of Nebraska, Appellee.

No. 37128.

Supreme Court of Nebraska.

Oct. 21, 1968.

Opinion Filed Nov. 15, 1968.

Syllabus by the Court

1. Constitutional provisions with respect to the right of initiative and referendum reserved to the people should be construed to make effective the powers reserved.

2. It is clearly the duty of this court to give a statute an interpretation which meets constitutional requirements if it can be reasonably done.

3. A requirement that an initiated measure be submitted at the first general election held not less than 4 months after filing of the petition is satisfied by a filing on July 5 for a general election to be held November 5.

4. Where the circulator of an initiative petition has signed and sworn to a properly executed statutory form of affidavit that he or she is a legal and qualified voter of the State of Nebraska, there is a presumption that he or she is a qualified elector in the absence of affirmative evidence to the contrary.

5. Where there is no evidence of fraud or irregularity on the part of the circulator in his circulation of the initiative petitions, evidence that he, as an individual, signed two other petition forms for the same measure does not destroy the presumption of validity of his affidavit as a circulator nor justify the disqualification of concededly valid signatures obtained by him as circulator.

6. The power of initiative must be liberally construed to promote the democratic process and the right of intiative constitutionally provided should not be circumscribed by restrictive legislation or narrow and strict interpretation of the statutes pertaining to its exercise.

7. On an otherwise validly executed initiative petition form, where the actual and exact date on which the signature of an elector was signed is readily apparent, the 8. Ditto marks have a clear and definite meaning and their use on an initiative petition cannot be held objectionable.

omission or faulty rendition of the date should be treated as a clerical or technical error and constitutes substantial compliance with the statute.

9. A substantial compliance with section 32--704, R.R.S.1943, in filing the itemized verified statement of contributions and expenditures is all that is required.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for Marsh.

Ray Simmons, Fremont, and John A. Wagoner, Grand Island, for State ex rel. Loren Morris.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McGOWN and NEWTON, JJ., and KOKJER, D.J.

PER CURIAM.

On September 16, 1968, the district court entered its peremptory writ of mandamus to Frank Marsh, Secretary of State, commanding him to take the necessary steps to place on the ballot in the November 5, 1968, Nebraska general election, the initiative petition proposal seeking a constitutional amendment prohibiting the State of Nebraska from leving an income tax for state purposes, and requiring him to accept and file the initiative petition therefor, and to take the other actions required by the Constitution of the State of Nebraska and Nebraska statutory provisions to assure that said initiative proposal be placed on the ballot.

The matter was advanced for hearing on the docket of this court and was argued and submitted on October 16, 1968.

Now on this 21st day of October 1968, the order of the district court that peremptory writ of mandamus to the Secretary of State be issued and writ allowed is affirmed. Written opinion to be filed on a later date.

Affirmed.

SPENCER, Justice (dissenting).

I respectfully dissent from the majority ruling herein. When the written opinion is filed, I will elaborate on the reasons for my position. For the present, I state that to hold as the majority do is to abort the provisions of section 32--704, R.R.S.1943. I would dismiss the action for failure to file an itemized verified statement of contributions and expenses within a reasonable time, as required by that statute. I am also satisfied that the case should be dismissed on its merits. A necessarily limited review of the law applicable convinces me that a sufficient number of valid objections were made by the Secretary of State to invalidate the petitions.

NEWTON, J., joins in this dissent.

OPINION

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and KOKJER, D.J.

McCOWN, Justice.

This is a mandamus action to require the Secretary of State to accept and file an initiative petition seeking a constitutional amendment prohibiting the State of Nebraska from levying an income tax for state purposes.

On February 7, 1968, a copy of the form of initiative petition to be used, together with a sworn statement as to the names of persons or corporations sponsoring the petition or contributing or pledging contributions, was filed with the Secretary of State. There is no contention that either of these documents were not in compliance with statutory requirements.

On July 3, 1968, petitions bearing the signatures of 57,521 electors were filed with the Secretary of State. On July 5, 1968, additional petition forms were filed. The number of valid signatures required was 48,640. No issue is raised as to the constitutionally required distribution among counties.

On July 3, 1968, a verified statement as to persons or corporations contributing or receiving money or other thing of value was filed with the petition forms. Supplemental itemized verified statements were filed on August 12 and August 28, 1968. On July 26, 1968, the Secretary of State issued his certification in which he found that less than 48,640 of the signatures were acceptable or valid, and that the person or persons presenting such petitions failed to file a satisfactory itemized verified statement as provided by section 32--704, R.R.S.1943. He then found the initiative petition to be insufficient and refused to certify the proposed amendment to the ballot for the 1968 general election.

This action was filed in the district court for Lancaster County on August 5, 1968. Peremptory writ of mandamus was issued on September 16, 1968, requiring the respondent Secretary of State to accept and file the initiative petition and to take the necessary steps to place the issue on the ballot for the November 5, 1968, general election. On appeal to this court, the matter was advanced for hearing and on October 21, 1968, Per Curiam judgment was entered affirming the judgment of the district court, with written opinion to follow.

The evidence and stipulations at the hearings in the district court indicate that the respondent Secretary of State rejected some 14,000 signatures, approximately 25 percent of those filed. It is conceded by the respondent that 43,964 valid signatures were filed on July 3, 1968 before 5 p.m. It is also conceded that there were 2,494 signatures contained on petitions filed after 5 p.m. on July 3, 1968, and on July 5, 1968, which would have been valid except for the 'late filing.'

The constitutional provisions dealing with the initiative are basic. Article III, section 1, of the Constitution of Nebraska, provides in part: 'The people reserve for themselves, however, the power to propose laws, and amendments to the constitution, and to enact or reject the same at the polls, independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act, item, section, or part of any act passed by the Legislature.'

Article III, section 2, Constitution of Nebraska, provides in part: 'The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature. * * * The constitutional limitations as to the scope and subject matter of statutes enacted by the Legislature shall apply to those enacted by the initiative.'

Article III, section 4, Constitution of Nebraska, provides in part: 'The method of submitting and adopting amendments to the Constitution provided by this section shall be supplementary to the method prescribed in the article of this Constitution, entitled, 'Amendments' and the latter shall in no case be construed to conflict herewith. The provisions with respect to the initiative and referendum shall be self-executing, but legislation may be enacted to facilitate their operation.'

The inter-action and effect of these constitutional provisions upon statutes intended to 'facilitate their operation' has been considered many times. In Klosterman v. Marsh, 180 Neb. 506, 143 N.W.2d 744, we said: 'Constitutional provisions with respect to the right of initiative and referendum reserved to the people should be construed to make effective the powers reserved. The case of State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N.W. 179 (178 N.W. 822) although later vacated on procedural grounds stated: 'The amendment under consideration reserves to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their act. The law should be construed, if possible, so as to prevent absurdity and hardship and so as to favor public convenience.' The court later said: 'Any legislation which would hamper or render ineffective the power reserved to the people would be unconstitutional."

We also said in State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N.W. 179, 'Laws to facilitate the operation of the amendment must be reasonable, so as not to unnecessarily obstruct or impede the operation of the law.' It is clearly the duty of this court to give a statute an interpretation which meets constitutional requirements if it can be reasonably done. State ex rel. Winter v. Swanson, 138...