Morford v. Pyle
| Decision Date | 10 August 1928 |
| Docket Number | 6700. |
| Citation | 220 N.W. 907,53 S.D. 356 |
| Parties | MORFORD v. PYLE, Secretary of State. [*] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hughes County; James McNenny, Judge.
Action by Emory E. Morford to enjoin Gladys Pyle, as Secretary of State, from submitting a law to a vote. From a judgment dissolving a temporary restraining order, and dismissing the action on its merits, plaintiff appeals. Reversed, with directions.
See also, 215 N.W. 690.
Martens & Goldsmith, of Pierre, for appellant.
Buell F. Jones, Atty. Gen., Benj. B. Mintener, Asst. Atty. Gen., A C. Miller, of Kennebec, and Fuller & Robinson, of Pierre, for respondent.
For a number of years last past the unorganized county of Todd has been attached to Lyman county for state and judicial purposes. At the 1927 session of the Legislature, an act known as House Bill No. 69, now chapter 217 of the Session Laws of 1927, was passed, which in effect attached Todd county to Tripp county, instead of Lyman county, for state and judicial purposes. The defendant in this action is the secretary of state. The plaintiff is a freeholder and an elector of Todd county.
On the 31st day of May, 1927, there was filed in the office of the secretary of state a referendum petition, which purported to be signed by 11,900 qualified voters of the state, asking that said chapter 217 be referred to the electors of the state at the next general election. The number of petitioners necessary to invoke the referendum was 9,192. The petition as filed contained 11,900 names, a surplus of 2,708 more than the required number; but it is alleged by plaintiff that because of certain irregularities and defects in said petition, the same is insufficient to authorize defendant to submit said law to the voters of the state, and this action is brought for the purpose of enjoining the defendant from submitting said law to a vote.
The petition was circulated in sections by various persons in different parts of the state, and it is claimed by plaintiff that many of these sections of the petition were not signed or verified in the manner prescribed by law. Upon the trial court found that the petition as filed with defendant contained 1,486 names that, for one reason or another, should not be counted. This left a surplus of 1,222, and the court held the petition sufficient to invoke the referendum. Judgment dissolving the temporary restraining order that had been issued at the beginning of the action, and dismissing the action on its merits, was entered. From this judgment, plaintiff appeals.
Section 5073, Code 1919, provides that these petitions be liberally construed, so that the real intention of the petitioners may not be defeated by mere technicalities; but, in order to prevent fraud or corruption in securing such petitions, certain regulations in securing the signatures of the petitioners have been prescribed by the Legislature. Section 5067, Code 1919, provides that each petitioner shall add to his signature his place of residence, his business, his post office address, and the date of signing. These requirements are repeated in section 5069; but under the provisions of section 5073, Code 1919, the petitioner is permitted to indicate his residence, his business, and his post office address by ditto marks, if they are the same as those last written above his signature.
Section 5074 requires that every person who circulates and secures signatures to the petition shall, before filing the same, make and attach thereto an affidavit, which shall be sworn to by him before some officer qualified to administer oaths and who has an official seal. The form of this affidavit is prescribed by this section and is as follows:
These various acts, viz, signing the petition, inserting the signer's residence, his business, his post office address, the date of signing, and the verification by the person who circulates the petition, are all placed on the same footing by the Legislature; so that the insertion of these data by the signer and the verification by the circulator are just as important and as much required by the law as the names of the signers themselves. The permission contained in section 5073 to indicate the place of residence, business, and post office address by ditto marks is a concession to the petitioner, but does not excuse him from inserting the ditto marks himself, and does not purport to excuse him from himself writing in the date of signing the petition. These separate requirements of the statute are not difficult of understanding nor arduous to perform.
The names of the petitioners on the petition are numbered consecutively from the beginning to the end, and for the convenience of the court appellant has predicated his assignments upon the particular sections of the petition that were procured by the different persons who circulated the same.
It is the contention of appellant that a large number of the names attached to the various sections of the petition should be rejected. This contention is based upon the following grounds: (1) Some of the signatures are on petitions which do not contain the heading provided by law. (2) There are some signatures on petitions from which the heading has been removed. (3) That the persons who circulated some of the petitions were compensated for their services, contrary to law. (4) That in some instances there is but one verification for several different petitions. (5) That in many instances the date of signing the petition is indicated by ditto marks. (6) That a number of the petitions were verified before a United States commissioner. (7) That on many petitions are names placed there by some one other than the person named. This latter objection involves 2,992 names, enough, if the objection is well...
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