Brownlow v. Wunsch

• Decision Date: 13 October 1938
• Docket Number: 14439.
• Citation: 103 Colo. 120,83 P.2d 775
• Parties: BROWNLOW et al. v. WUNSCH et al.
• Court: Colorado Supreme Court

83 P.2d 775

103 Colo. 120

BROWNLOW et al. v. WUNSCH et al.

No. 14439.

Supreme Court of Colorado, En Banc.

October 13, 1938

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Proceeding by J. A. Brownlow and others against Leo E. Wunsch, George A Saunders, Secretary of State, and others to review the secretary's findings on hearings of plaintiffs' protest against submission to the voters of a constitutional amendment proposed by codefendants' initiative petition. Judgment approving the findings, and plaintiffs bring error.

Affirmed.

BURKE C.J., dissenting.

Twitchell, Clark & Eckley and Worth Allen, all of Denver, for plaintiffs in error.

James E. Griffith and Garwood & Garwood, all of Denver, for defendants in error Leo E. Wunsch, Harry R. Springer, Glen E. Wood, Nathan Russell, and Leo L. Spears.

Byron G. Rogers, Atty. Gen., and J. Glen Donaldson, Asst. Atty. Gen., for defendant in error George E. Saunders.

KNOUS, Justice.

The plaintiffs in error here seek a review of the decision of the secretary of state, upheld by the district court, arising under their protest, and holding sufficient a petition for the initiation of a proposed constitutional amendment. The defendants in error are the persons designated as representing signers of the petition involved and herein reference will be made to them as the sponsors. The constitutional provisions relating to the initiative and referendum are contained in article 5, section 1 of the Constitution. This section was adopted by popular vote at the general election in 1910 and by it the people reserved to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the general assembly. Although by express words it is declared that this section in all respects shall be self-executing, it is clearly contemplated by its terms that legislation may be enacted to further its operation. Pursuant thereto the legislature has adopted certain facilitating statutes which appear in '35 C.S.A. as chapter 86 thereof. It has generally been held by the courts of all jurisdictions that a constitutional provision for the initiative and referendum and statutes enacted in connection therewith should be liberally construed. State ex rel. v. Kozer, 108 Or. 550, 217 P. 827; Wood v. Byrne, 60 N.D. 1, 232 N.W. 303; Ford v. Mitchell, 103 Mont. 99, 61 P.2d 815; Laam v. McLaren, 28 Cal.App. 632, 153 P. 985; State ex rel. v. Superior Court, 97 Wash. 569, 166 P. 1126.

We proceed to a determination of the controversy Before us upon these considerations to the end that the constitutional right reserved to the people 'may be facilitated and not hampered by either technical statutory provisions or technical construction thereof further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right.' State ex rel. Case v. Superior Court, 81 Wash. 623, 632, 143 P. 461, 464, Ann.Cas.1916B, 838.

While counsel for protestants, doubtless influenced by their zeal in the presentation of their contentions, to some extent have overlooked the circumstance, in a proceeding of this character, it nevertheless is certain that neither the secretary of state nor any reviewing court should be concerned with the merit or lack of merit of a proposed constitutional amendment, since under our system of government the resolution of these questions, when the formalities for submission have been met, rests with the electorate.

On June 17, 1937, the sponsors, through the procedure prescribed by section 1, chapter 86, '35 C.S.A., obtained a ballot title and submission clause for the proposed constitutional amendment. On December 15, 1937, the sponsors filed with the secretary of state an initiative petition containing 52,598 names, asking that the secretary place the proposed amendment on the ballot to be submitted to the voters on November 8, 1938. Within fifteen days thereafter, as permitted by section 6, chapter 86, supra, the protestants filed their protest. Hearings were had on the protest and January 29, 1938, the secretary found and certified that the petition was not signed by a sufficient number of qualified electors to meet the provisions of section 1, article 5 of the Constitution so as to require the submission of the proposed amendment to the people. Section 1, supra, requires that 'at least eight per cent. of the legal voters shall be required to propose any measure by petition.' The vote cast for the secretary of state at the regular general election last preceding the filing of the petition is made the basis for computation of the number of signatures of legal voters necessary to make the petition sufficient. Under this formula the number of names required to constitute a valid petition during the period here involved was 37,417. From the 52,598 names appearing on the petition as first filed, the secretary eliminated 259 names as written by others; 95 names in which the jurat was earlier than the signature; 1,079 names for faulty affidavits, and 15,666 names on sections to which were affixed affidavits, the oath to which purported to have been administered by one Irene Caffee, these latter being rejected on the ground that she was not qualified to administer the oath by reason of her interest, thus leaving 35,499 valid names on the petition. The number of valid names remaining on the petition after these deductions was insufficient to require the submission of the proposed initiated measure and the secretary so certified. Under the permission conferred by section 6, chapter 86, supra, the petition was withdrawn by the sponsors on February 2, 1938, for the purpose of amendment or the securing of additional names, and February 14, 1938, as amended, was lodged with the secretary for refiling. After the disposition of a controversy with reference to his right to refile the petition, which we will discuss later, a further protest was filed by protestants and a series of hearings thereon were held by the secretary of state. As refiled, the petition contained 10,799 new signatures and it had been amended further by the renotarizing of certain sections originally verified Before Irene Caffee and stricken from the petition at the first hearing as above stated. The sponsors claimed that 7,896 signatures were thus validated and the protestants, while not admitting the validation, contended that the number thus affected was 5,579. The secretary of state determined that the correct number of signatures contained in the resworn sections was 5,355. Adding the total number of names found by the secretary to have been valid in the first hearing, to-wit, 35,499, the names on sections having the second affidavit, to-wit 5,355, and the new names added after the petition was withdrawn, to-wit, 10,799, resulted in a grand total of 51,653 names, from which the secretary deducted 1,418 names which were either voluntarily withdrawn or stricken by him for cause upon the second or third hearings on the protest, leaving a net total of 50,235 signatures which the secretary of state determined to be valid. (It appears from the record that due to a mathematical error of computation, the secretary has certified 50,215 instead of 50,235, as the net number of valid names on the petition.) This being in excess of the number required to initiate a constitutional amendment, the measure was certified for submission. The protestants then instituted this proceeding in the district court of the City and County of Denver to review the secretary's findings, with the result that they were affirmed and approved by that court in their entirety.

The first objection presented is that the initiative petition, as amended after the first findings by the secretary holding it insufficient, was barred from being refiled on February 14 1938, because more than six months had then elapsed subsequent to the date on which the titles and submission clauses were provided. In this connection it will be recalled that the original petition admittedly was filed within the six month period, and in passing it may be observed that when the amended petition was tendered for filing the secretary refused to refile it upon the ground here relied upon by the protestants. The sponsors then procured an alternative writ of mandamus in the district court of the City and County of Denver commanding the secretary to file the petition, to which he presented general and special demurrers. These were overruled by the court, whereupon the secretary elected to abide by the ruling and refiled the petition. Protestants sought to intervene in the proceeding after the demurrers were overruled, but their petition to so intervene was denied by the court and its decision in this respect was affirmed by this court in Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444. The action of the district court requiring the secretary to accept the amended petition for filing, concerning which no review is pending, so far as we are advised, might possibly be considered as conclusive on this point and it further may be questioned whether upon a review of the secretary's findings as to the sufficiency in form and number of signatures of the petition, this question can properly be raised. Notwithstanding, in view of the importance of the case and the public nature of the question involved, we do not consider the technical considerations suggested. Section 6, chapter 86, supra, among other things, provides: 'In case the petition be declared insufficient in form or number of signatures of qualified electors, it may be withdrawn by a majority in number of the persons representing the signers of such petition, and may, within fifteen days thereafter, be amended or...