Barkley v. Pool

• Decision Date: 28 June 1919
• Docket Number: 20946
• Citation: 173 N.W. 600,103 Neb. 629
• Parties: EDNA M. BARKLEY ET AL., APPELLEES, v. CHARLES W. POOL, SECRETARY OF STATE, APPELLEE: L. D. RICHARDS ET AL., INTERVENERS, APPELLANTS
• Court: Nebraska Supreme Court

173 N.W. 600

103 Neb. 629

EDNA M. BARKLEY ET AL., APPELLEES, v. CHARLES W. POOL, SECRETARY OF STATE, APPELLEE:

L. D. RICHARDS ET AL., INTERVENERS, APPELLANTS

No. 20946

Supreme Court of Nebraska

June 28, 1919

APPEAL from the district court for Lancaster county: LEONARD A FLANSBURG, JUDGE. Affirmed.

AFFIRMED.

Jacob Fawcett, John L. Webster, L. F. Crofoot and Byron G. Burbank for appellants.

Francis A. Brogan, T. J. Doyle, John M. Stewart, Elmer E. Thomas, C A. Sorensen and H. H. Wilson, contra.

OPINION

DEAN, J.

The legislature passed an act, House Roll 222, chapter 30, Laws 1917, that amended section 1940, Rev. St. 1913, so that, as amended, the act conferred upon women the right to vote at the regular state election for officers and upon submitted questions, except such officers as are "specified and designated in the constitution," and except upon questions "the manner of the submission of which is specified and designated in the Constitution of Nebraska." A referendum petition, numerously signed, and apparently having more than the required number of names necessary to invoke the operation of the referendum statute, was filed in the office of the then secretary of state, on July 23, 1917, to refer the suffrage act to the people for their approval or rejection at the regular state election on November 5, 1918.

Plaintiffs began this action under section 2339, Rev. St. 1913, to enjoin the secretary of state from referring the suffrage act pursuant to the prayer of the referendum petition. When the secretary filed his answer, certain electors intervened and by leave of court were joined as party defendants. As soon as the taking of testimony was closed, the interveners interposed a demurrer to plaintiffs' evidence, which was overruled. Interveners, electing to stand thereon, introduced no further testimony. Whereupon the court found "generally in favor of the plaintiffs and against the interveners, and defendants." The interveners alone appealed.

This case was appealed before and was dismissed by us on the ground that the ruling appealed from was not a final order. It may be added that on the former appeal none of the testimony was before us. Barkley v. Pool, 102 Neb. 799, 169 N.W. 730.

All of the plaintiffs are women. They sue on behalf of themselves and all others similarly situated. Hence interveners contend that plaintiffs cannot maintain this suit. They submit this argument: "The court should have ruled that the questions involved in this suit do not relate to either property or civil rights, but to political rights, which belong to the electors of the state and attach to the sovereignty of the state, and that a suit in equity of this sort could only be prosecuted in the name of the state, by and through the state legal department."

We do not think the court erred in ruling that plaintiffs could maintain the action. While plaintiffs are not electors, they are of course citizens. Section 2339, Rev. St. 1913, expressly provides that "any citizen" may apply to the district court for a writ of mandamus to compel the secretary of state to file either an initiative or a referendum petition. The same section provides: "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." The act provides a remedy that may be invoked when the secretary of state wrongfully refuses to file a petition, and a remedy is also provided against certifying and printing the title of the act on the official ballot when the petition is not legally sufficient. "Any citizen" may apply to the district court to compel a filing when the refusal is wrongful, and, if the showing is that the petition is not legally sufficient, the court must enjoin the secretary of state from certifying and printing the title of the act on the official ballot. It is not necessary to repeat the words "any citizen." Those words are implied and the statute must be so construed. If the legislature intended that either remedy created by the act could be invoked only by the attorney general or by a person belonging to some specially designated class, as distinguished from "any citizen," it could very easily have said so. It is significant that the lawmakers did not say so either in express terms or even by implication.

Ordinarily the powers of a court of equity cannot be invoked to enforce political rights. But section 2339, Rev. St. 1913, expressly provides that injunction will lie to prevent the secretary of state from submitting a referendum petition that is legally insufficient. The question then is: By whom may the action be brought? The act sought to be referred is a grant of certain rights by the legislature to all persons of a certain class, namely, the women of the state. When such grant is assailed, must the class upon whom the rights are so conferred remain passively silent and be denied opportunity to make the defense pointed out by statute? In view of the act, or on principle, can it be said that any citizen so clothed with statutory rights is remediless? We do not think so.

Interveners cite Friendly v. Olcott, 61 Ore. 580, 123 P. 53, which holds that the remedy by injunction, under a statute similar to ours, can only be invoked by the state "through its proper law officer," and argue that, having adopted the Oregon statute, we adopted the construction placed thereon by the Oregon court. This court is not irrevocably committed to that rule. In Burnham-Munger Root Dry Goods Co. v. Strahl, 102 Neb. 142, 166 N.W. 266, in discussing this point, it is said: "This is not a uniform rule and has been departed from for good reasons by this court on several occasions." As pointed out in oral argument and in briefs of counsel, the construction of the Oregon statute was based on the former practice in that state, and was not, strictly speaking, an independent construction of the statutory language. On principle and in view of our former holding, we decline to adopt the Oregon construction. It may be added that Oregon has preserved the distinctions between actions at law and suits in equity, while in this state such distinctions are expressly abolished by statute. We conclude that under the act any citizen may make a "showing that any petition filed is not legally sufficient" and may invoke the remedy by injunction.

Sections 2337 and 2338, Rev. St. 1913, provide generally for the duties of the circulators of initiative and referendum petitions. Section 2337 provides: ...