Friendly v. Olcott

• Court: Supreme Court of Oregon
• Citation: 123 P. 53,61 Or. 580
• Parties: FRIENDLY v. OLCOTT, Secretary of State.
• Decision Date: 23 April 1912

123 P. 53

61 Or. 580

FRIENDLY v. OLCOTT, Secretary of State.

Supreme Court of Oregon

April 23, 1912

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by S.H. Friendly against Ben W. Olcott, as Secretary of the State of Oregon. From a decree for complainant, defendant appeals. Reversed, and suit dismissed.

This is a suit to enjoin the Secretary of State from certifying to the county clerks the ballot title formulated by the Attorney General to be printed on the ballot for the general election to be held in November, 1912, whereby the electors may vote on the referendum of House Bill No. 210 passed at the twenty-sixth regular session of the legislative assembly. The plaintiff alleges "that for more than twenty years last past the plaintiff has been, and is now, a resident inhabitant, and taxpayer in the city of Eugene, Lane county Or., and during all of said time has been and is now a citizen of the United States of the state of Oregon and a legal voter therein." The complaint recites the regular passage by the legislative assembly of the measure in question appropriating the sum of $328,258.92 for the purpose of constructing additional buildings, etc., for the University of Oregon and the adjournment of that body on February 18, 1911. It is further substantially stated that within 90 days after the adjournment of the legislative assembly H.J. Parkinson and W.H. Abrams tendered to the defendant, as Secretary of State, a pretended petition consisting of 117 sections, and purporting to contain signatures thereto of citizens and legal voters of the state of Oregon to the number of 13,715, affecting to demand that House Bill No. 210 be referred to the people of the state of Oregon for their approval or rejection at the regular election to be held in November, 1912, and that the defendant as Secretary of State accepted the petition and filed it as of May 18, 1911. It is averred, in effect, that, as soon as the petition was filed, the defendant transmitted a copy of the measure in question to the Attorney General, who prepared a ballot title for the same to be put on the ballot at the election mentioned, and that the defendant accepted and received the ballot title and intends to and will, if not enjoined by this suit, furnish to each of the county clerks of the state of Oregon a certified copy thereof to be placed on the ballot to be used at the election. The plaintiff avers and the defendant admits that the signatures of 6,135 legal voters are required upon a petition to affect a referendum of the act in question, but the plaintiff alleges that in truth and in fact the petition does not contain more than 2,000 genuine signatures, and the bill goes on to specify sundry objections to the petition not only affecting its form, but also charging that many of the signatures are fraudulent and forged in such numbers as would reduce the valid signatures below the requisite number of 6,135. The substance of the prayer is that the defendant be enjoined from certifying the ballot title to the county clerks, and from doing anything to cause it to be put on the ballot. The defendant's demurrer on the ground, first, that plaintiff has not legal capacity to bring the suit, and that the complaint does not state facts sufficient to constitute a cause of suit against the defendant, was overruled by the circuit court. The answer traversed the allegations of the complaint in material particulars, especially in the portion charging the appending of forged and fraudulent names to the petition. After a hearing, the circuit court made a decree according to the prayer of the complaint, and defendant appeals.

A.M Crawford, Atty. Gen. C.E.S. Wood, of Portland, and W.S U'Ren of Oregon City (I.H. Van Winkle, of Salem, on the brief), for appellant.

W.T. Slater, of Salem (M.E. Pogue, of Salem, and Martin L. Pipes, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

In section 3474, L. O.L., the following language appears: "If the Secretary of State shall refuse to accept and file any petition for the initiative or for the referendum, any citizen may apply within ten days after such refusal to the circuit court for a writ of mandamus to compel him to do so. If it shall be decided by the court that such petition is legally sufficient, the Secretary of State shall then file it, with a certified copy of the judgment attached thereto as of the date on which it was originally offered for filing in his office. On a showing that any petition 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 appellant argued, in substance, that but one form of judicial procedure was contemplated by section 3474, L. O.L., it being by writ of mandamus for which application must be made within 10 days after the Secretary of State refuses to file a petition for an initiative measure or for a referendum. In other words, the defendant's theory as to the form of litigation is that in such an action the court will either compel the officer to file the petition, or will enjoin him from certifying the ballot title for uses in the election. This contention is erroneous. The distinction between legal and, equitable procedure is still observed in this state. Mandamus is an extraordinary legal remedy, and in the matter under consideration can operate only to compel the filing of a petition which the Secretary refuses to file. But we have here a case where the officer had filed the petition and was continuing on the subsequent course of referring the measure to the people as provided by the act of February 25, 1907, of which section 3474, L. O.L., is a part. If any one entitled to do so would oppose this action of the Secretary, the remedy is by injunction which is cognizable only in equity. The statute plainly says that the Secretary's certification of the ballot title may be enjoined under certain specified conditions. The limit of 10 days is not one of those conditions nominated in the statute. This is apparent from a consideration of all of its terms. When a petition is filed, the Secretary at once forwards a copy of the measure in question to the Attorney General. Within 10 days that officer prepares and returns to the Secretary a title for the measure to be printed on the election ballot. Within a succeeding period of 10 days any one dissatisfied with the action of the Attorney General may appeal to the circuit court for a change in the ballot title. L.O.L. § 3475. Not until the decision of the court on that issue is had is the title ready for certification to the various county clerks nor until then would the necessity arise for enjoining the Secretary from certifying it to those officers. For the reason that all these things cannot be done in that time, it is apparent that the limitation of 10 days laid down for mandamus proceedings does not apply to the equitable remedy of injunction which itself is prescribed for an entirely different purpose.

The most important question arises under the general demurrer. Does the plaintiff by his bill state facts sufficient to support his prayer for relief? If this were the action in the name of the state on the relation of...