Dredge Mining Control-Yes!, Inc. v. Cenarrusa

• Citation: 92 Idaho 480,445 P.2d 655
• Decision Date: 04 October 1968
• Docket Number: CONTROL-YES,No. 10305,10305
• Parties: Page 655 445 P.2d 655 92 Idaho 480 DREDGE MINING!, INC., a non profit Idaho corporation, Plaintiff-Appellant, v. Pete T. CENARRUSA, Secretary of State, Defendant-Respondent, and Idaho Mining Association, Intervenor-Respondent. Supreme Court of Idaho
• Court: United States State Supreme Court of Idaho

Page 655

445 P.2d 655

92 Idaho 480

DREDGE MINING CONTROL-YES!, INC., a non profit Idaho corporation, Plaintiff-Appellant, v. Pete T. CENARRUSA, Secretary of State, Defendant-Respondent, and Idaho Mining Association, Intervenor-Respondent.

No. 10305.

Supreme Court of Idaho.

Oct. 4, 1968.

W. Anthony Park, Boise, Scott W. Reed, Coeur d'Alene, for appellant.

Allan G. Shepard, Atty. Gen., and Daniel A. Slavin, Asst. Atty. Gen., for respondent Secretary of State.

Anderson, Kaufman, Anderson & Ringert, Boise, for intervenor-respondent.

Eberle & Berlin and Hawley, Troxell, Ennis & Hawley, Boise, amici curiae.

McFADDEN Justice.

Appellant Dredge Mining Control-Yes$, Inc., a non-profit Idaho corporation, instituted this action for a writ of mandate to compel respondent Pete T. Cenarrusa, Secretary of State, to file, certify and cause to be printed on the ballot for the November 1968 General Election an initiative proposal, sponsored by appellant. The proposal is entitled 'Dredge Mining Regulation and Water and Land Preservation Initiative.' The trial court issued an alternative writ of mandate requiring respondent Cenarrusa to certify the measure and cause the same to be printed on the general election ballot or show cause why he should not.

Respondent Idaho Mining Association, an unincorporated association of companies actually engaged in the mining industry of this state, intervened in the action by motion granted by the trial court. Each respondent answered appellant's petition. The cause was tried by the court on stipulated facts, which the court adopted as its findings of fact. The trial court entered conclusions of law and its judgment discharging the alternate writ of mandate previously entered and enjoining respondent Cenarrusa from certifying or printing the initiative measure on the ballot, from which judgment plaintiff appealed.

The trial court concluded that appellant failed to file with respondent Secretary of State within the time allowed by law, certified signatures equal to ten per cent of the electors of the state based upon the aggregate vote cast for governor at the preceding general election, and hence the Secretary of State was precluded from ordering the initiative printed on the ballot for the 1968 general election. It is appellant's theory, however, that by reason of erroneous conclusions of law which are assigned as error this conclusion is incorrect.

The parties stipulated that the number of people voting for governor in 1966 was 252,591, and that 10% of that figure, the number of signatures required on the petition, was 25,260. It was also stipulated that petitions with 23,011 signatures were timely filed on July 5, with respondent Cenarrusa; 'that 451 (additional signatures) arrived in the mail after July 5 but were postmarked on July 5; Approximately, but not less than 5,000 signatures were not certified by the clerks; All of the said 5,000 signatures were listed on the bottom part of the clerk's certification form.'

Authority for use of the initiative by the electorate of this state is to be found in Idaho Constitution Article 3, § 1, and the provisions of Idaho Code Title 34, Chapter 18. The constitutional provision reads:

'The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection provided that legislation thus submitted shall require the approval of a number of voters equal to a majority of the aggregate vote cast for the office of governor at such general election to be adopted.' Idaho Const. Art. 3, § 1.

This constitutional provision was not a part of the Idaho Constitution as adopted in 1890, but came as an amendment proposed by the legislature in 1911 (S.L.1911, p. 785, S.J.R. No. 12), and was ratified by the voters at the general election in November 1912. The provision remained dormant until 1933, when the legislature enacted what is now I.C. Title 34, Chapter 18 (S.L.1933, Ch. 210).

The legislation enacted in 1933 pertaining to initiative elections provides the form for the petition and requires that an initiative petition must be filed not less than four months prior to the election at which it is to be voted upon. The act spells out the details of binding the petition, and requires that it have affixed 'signatures of legal voters equal in number to not less than ten per cent (10%) of the electors of the state based upon the aggregate vote cast for governor at the general election next preceding the filing of such initiative * * * petition.' I.C. § 34-1805. The act requires that each sheet of signatures be verified by the circulator, and also requires that the clerk of the district court of each county certify as to the signatures presented from the residents of his respective county. In the event the clerk of the district court should not certify any names submitted, provision is made for certification by a notary public. The act also provides that the Secretary of State shall consider and count all names signed on the petitions as certified by the clerks of the district courts and notaries public. The act provides the procedures for publishing the ballot, and for voting and counting the results. Certain acts are declared unlawful and penalties are prescribed for commission of the proscribed acts.

In denying the appellant's claim, the trial court entered certain conclusions of law which are the basis of appellant's assignments of error. Among these is the conclusion entered by the trial court to the effect that for a person to be eligible to have his signature on the petition counted, it is necessary that such person not only meet the age and residence requirements to vote prescribed by the constitution, but also that he be registered in the manner prescribed by law. The appellant contends the trial court erred in this regard, asserting that the only requirement for signing an initiative petition is that the person in fact have the constitutional qualifications to vote, whether registered or not. Respondent Cenarrusa finds no objection to appellant's position on this point. He states that his responsibility is to accept all signatures certified to him by the county clerks, or, as to any rejected by the county clerks, all signatures then certified by a notary public.

However, respondent Idaho Mining Association seriously disputes appellant's contention in this regard. It is our conclusion that the trial court was correct in its conclusion. Idaho Const. Art. 3, § 1, in reserving to the people the right to initiate legislation, employs the term 'legal voters' as those who may, under conditions and manner provided by legislation, initiate desired legislation. I.C. § 34-1814 states: 'Every person who is a qualified elector of the state of Idaho may sign a petition for the * * * initiative for any measure which he is legally entitled to vote upon.' (Emphasis added.) The form of the petition, as set out by the legislature (I.C. § 34-1801), is prefaced by a warning advising all that it is a felony for anyone to sign such petition '* * * when he is not a legal voter.' By I.C. § 34-1807, the circulator of the petition must take an oath that he believes every signer of the petition is a 'legal voter' of the state. By the same section the clerk of the district court is required to examine the registration oaths and records in his office to determine the genuineness of the signature, and based thereon, certify to the signatures believed genuine. In the event a name is not so certified by a clerk of the court it may be certified by a notary public that the individual is a legal voter.

Although Idaho Const. Art. 3, § 1 employs the term 'legal voters,' Idaho Const. Art. 6, § 2 provides:

'Except as in this article otherwise provided, every male or female citizen of the United States, twenty-one years old, who has actually resided in this state or territory for six months, and in the county where he or she offers to vote, thirty days next preceding the day of election, if registered as provided by law, is a qualified elector; * * *.' (Emphasis) added.)

It is our conclusion that the legislature in its use of the term 'legal voter' in the acts pertaining to the initiative measures, contemplated that the signers of the petition must be persons who are registered electors. Idaho Code § 34-1814 specifies who may sign an initiative petition, stating: 'Every person who is a qualified elector of the state of Idaho may sign a petition for the * * * initiative for any measure which he is legally entitled to vote upon.' In order to vote upon an initiative ballot, a person must have the qualifications of an elector and also be registered according to law. (Idaho Const. Art. 6, § 2) Therefore, in order that a person be qualified to sign the initiative petition he must be eligible to vote upon the measure, and hence must be registered. Moreover, unless a person is registered no record thereof will be available in the office of the clerk of the district court from which the clerk can determine, as required by I.C. § 34-1807, whether such person meets the qualifications of I.C. § 34-1814. This court in Kerley v. Wetherell, 61 Idaho 31, 96 P.2d 503 (1939), in considering the question whether signers of an initiative petition in the City of Boise were required to be registered electors in the city, held that registration was required.

In its conclusions of law VI, the trial court stated:

'The Legislature is charged with the duty of establishing a procedure whereby the people can place initiative matters on the ballot. The legislative procedures outlined in Chapter 18 of Title 34, Idaho Code, are not unreasonable and must be...