Halgren v. Welling, Secretary of State

• Decision Date: 16 December 1936
• Docket Number: 5861
• Citation: 63 P.2d 550,91 Utah 16
• Court: Utah Supreme Court
• Parties: HALGREN v. WELLING, Secretary of State

63 P.2d 550

91 Utah 16

HALGREN v. WELLING, Secretary of State

No. 5861

Supreme Court of Utah

December 16, 1936

October 3, 1936;

Petition by L. O. Halgren for a writ of mandamus and for a writ of prohibition against Milton H. Welling, as Secretary of State of the State of Utah.

PEREMPTORY WRIT MADE PERMANENT.

E. A Walton, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., Grover A. Giles, Deputy Atty. Gen., and E A. Rogers, of Salt Lake City, for defendant.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND and EPHRAIM HANSON, JJ., WOLFE, JJ., concurring. WOLFE, Justice, concurring in part, dissenting in part.

OPINION

MOFFAT, Justice.

This cause involves the Initiative and Referendum Law of the State of Utah, and is the second cause involving the procedure under that law to come to this court. The first case was White v. Welling, 89 Utah 335, 57 P.2d 703. None of the issues involved in the instant case were presented in that case. The statute was enacted in 1917 (Laws 1917, c. 56 [Rev. St. 1933, 25-10-1 et seq.].

The petition filed in this court asks for double relief: First, for a writ of mandamus requiring the defendant Milton H. Welling as Secretary of State to consider, respect, and give effect to certain withdrawal petitions, and to disregard and eliminate from the initiative petition the names of the alleged withdrawing petitioners and to declare the initiative petition "insufficient"; and, second, for a writ of prohibition prohibiting and enjoining the defendant from certifying the proposed law to the county clerks of the state of Utah and from doing anything with respect to causing the proposed law to be placed upon the ballots at the coming election.

The proposed law is sponsored by five petitioners. It is proposed to secure by and through the Initiative and Referendum Law (title 25, c. 10, Rev. St. of Utah 1933) the adoption by the people of the state of Utah of "An Act to amend section 79-6-8, Revised Statutes of Utah, 1933, as amended by chapter 78, Laws of Utah, 1935."

Plaintiff's application in this court raises a number of questions objecting to the form of the documents or petitions filed in the office of the Secretary of State. Some of the objections are also substantive. It has been stipulated by the parties that no question is or will be raised, or objection made, as to the form of the action in this proceeding, nor whether the remedy sought is proper. What is desired, as indicated by the parties to this proceeding, is an interpretation of those parts of the Initiative and Referendum Law relating to the requirements that must be met by initiative petitions as to form, procedure, and substantive matters.

The points raised and argued by both sides pursue the same order and submit the matters upon which they contend. They are the issues raised by a "petition affidavit" or application of plaintiff, an answer and motion of the defendant, and a motion for judgment on the pleadings by the plaintiff. We shall not attempt to discuss them in the order in which counsel argued them. We shall adopt another order of discussion. Counsel submitted nine points as follows: (1) The sufficiency of sponsors' petition. (2) The initiative petition is insufficient both as to form and substance. (3) The proposed law is "nonsense," in that it contains "asterisks, the dagger and the various parentheses and the annotations and underscoring so as to make it unintelligible and uncertain." (4) The petition sheets or petition copies of each petition section are not securely bound. (5) Each of the sheets or pages of the petition copies are not separately verified. (6) The withdrawal petitions should have been respected by the Secretary of State. (7) Sponsors' petition and copies of initiative petition do not contain the post office addresses and residences of signers of the sponsors' petition or the petition copies. (8) There is a failure of correspondence of petition signers with registration lists; that is, the petition copies do not indicate whether or not the signers are duly registered legal voters. (9) Certain of the certificates made by those who certified them were false and fraudulent.

Points numbered 1, 3, 4, and 5 are largely matters of form. We so regard them. The forms prescribed by the chapter on initiative and referendum are declared by section 25-10-1 15, R. S. Utah 1933, not to be mandatory, and if substantially followed, "the petition shall be sufficient, notwithstanding clerical and merely technical errors." When we include objection numbered 1 in the above statement it is taken to refer only to the formal part of the petition and not to any substantive matters. The same statement is true as to the second objection.

The right of direct legislation is in the people. It is the duty of officers charged with administration matters relating to the Initiative and Referendum Law to make it effective and operative if possible. Technical and restrictive constructions placed upon such laws would tend to defeat the purpose and policies governing the submission of such measures to the people for adoption. With the best of safeguards that can be thrown around the preparation, circulation, assembling, and submitting of petitions relating to the Initiative or Referendum Law, inaccuracies, and at times technical departures from prescribed forms, are likely to occur. The rigid application of technical constructions relating to the law, if made by officers charged with the administration thereof, may effectively defeat the purpose of the law. Officers should interpret the law, if possible, so as to sustain it and make its purposes effective, and bring about the purposes intended by the legislature. As heretofore indicated, the forms prescribed are not mandatory, and if they are substantially followed the petition should be held to be sufficient notwithstanding merely technical errors as to form.

Plaintiff argues that because section 25-10-7, R. S. Utah 1933, requires that the "sponsors" shall sign their names, together with their residences, that a failure to write in full after their names and street numbers, "Salt Lake City, Utah," instead of writing "S. L. C.," as they did, is not a compliance with the law. In signing and indicating their residences, the sponsors wrote their street numbers and after that the abbreviation "S. L. C." That "S. L. C." was used in connection with the street number and was intended to refer to Salt Lake City is sufficiently clear to classify the objection within the category of "clerical or merely technical errors." A letter addressed to "John Doe, 1104 E. 6th St., S. L. C.," would no doubt be delivered. Such address is defective when compared with the required post office address, indicating street number where possible, and place of residence. The purpose of supplying name, post office address, indicating street number, if the residence can be so designated, written opposite the name, is to enable any person desiring to verify the qualifications of the signer of an initiative petition, and determine his identity. If the information given is sufficient to enable a person of ordinary intelligence to find the place of residence and establish the identity of the signer, it should be sufficient, though containing technical or clerical error. Persons sponsoring, circulating, or signing petitions should see to it that addresses, street numbers when required, and places of residence are written in full in order to avoid uncertainty.

Plaintiff charges, objection No. 9, that certain certificates made by officers before whom the signers appeared were false. This is denied. There is no proof in the record of this issue and no way of securing proof upon that matter, except by reference for the purpose of taking testimony. There is nothing in the record to indicate that the certificates as made were either false or fraudulent. As to form, there is no objection to them. This last statement brings us to an unusual situation presented in this case.

The questions, including those above, sought to be submitted, are presented by plaintiff by an affidavit and petition for a writ of mandamus and prohibition. The defendant answered and admitted some of the allegations and denied some, and moved to strike some from the affidavit. The plaintiff then filed a motion for judgment on the pleadings. The ground stated is that "each and every of the denials of defendant's answer with respect to the allegations of the plaintiff made in paragraphs 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22 and 26 are sham, frivolous, contrary to the record, and only amount to denials of the legal effect of the facts alleged in such paragraphs." In view of the disposition of the case that must be made, we deem it unnecessary to discuss in detail this matter. Some of the denials are contradicted by the record. In some of such matters the record supports the allegations of plaintiff.

The motion to strike was not argued, nor was the motion for judgment on the pleadings. We shall have occasion later to refer to certain of the paragraphs around which the allegations, denials, and motions revolve. Reference will be made to paragraphs 21 and 22 of the affidavit.

Objection numbered 2, above referred to, from some of its aspects may be regarded as one of form, and in so far as formal only a departure from form may not be fatal; yet this objection is of such nature that we think, for the purpose of indicating what the statute contemplates and as an aid in the future the matter should be separately discussed. Objection numbered 2 in its formal aspects relates to the "sponsors' application for petition copies of a proposed law for submission to the people." The application or sponsors' petition proceeds to set out an...