Hernett v. Meier

• Decision Date: 16 January 1970
• Docket Number: No. 8584,8584
• Citation: 173 N.W.2d 907
• Parties: Gail HERNETT, John Rouzie, and George Sinner, as Duly Qualified Electors of the State of North Dakota, for Themselves and All Others Similarly Situated, Petitioners, v. Ben MEIER, as Secretary of State of the State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 907

173 N.W.2d 907

Gail HERNETT, John Rouzie, and George Sinner, as Duly Qualified Electors of the State of North Dakota for Themselves and All Others Similarly Situated, Petitioners, v. Ben MEIER, as Secretary of State of the State of North Dakota, Respondent.

Civ. No. 8584.

Supreme Court of North Dakota.

Jan. 16, 1970.

Syllabus by the Court

1. Section 25 of the North Dakota Constitution reserves to the people the power to approve or reject at the polls any measure enacted by the Legislative Assembly. In this regard, it provides that: 'Seven thousand electors at large may, by referendum petition, suspend the operation of any measure enacted by the legislature, except an emergency measure.'

2. In passing upon the sufficiency of a referendum petition, there is a presumption that each signature thereon is the genuine signature of the person whose name it purports to be. If proceedings are brought against the petition upon any ground, the burden of proving signatures to be insufficient is upon the party attacking it. Sec. 25, N.D.Constitution.

3. Section 16--01--11, North Dakota Century Code, which was enacted to facilitate the exercise of the rights of initiative and referendum which the Constitution reserves to the people of the State, requires that each signer to a petition shall, in addition to signing his name, add his residence, postoffice address, and the date of signing. Where a signer gives the name of his county as his residence and adds his postoffice address, such designation of residence is acceptable, and signatures of persons who have added the county as place of residence and the postoffice address of the signers may be counted.

4. Signatures of electors appearing on petitions circulated by persons under the age of twenty-one years who, although being minors, sign the required affidavit to the effect that each signature is the signature of the person whose name it purports to be and that each such person is a qualified elector, are not invalid merely because such petitions were circulated by persons under the age of twenty-one. In the absence of a statute to the contrary, an infant old enough to understand the facts and the nature of an oath may circulate the petition and execute the affidavit.

5. Where a signer to a referendum petition gives his rural route, or his rural route and his box number, as his residence, and, in addition thereto, gives his postoffice address, such designation of his residence will enable the Secretary of State or others to determine whether the signer is, in fact, an elector of the State, as required by the Constitution. Signatures to which both such residence and postoffice addresses have been added may be counted.

6. Where the date on which certain electors signed a referendum petition is subsequent to the date of the attached affidavit, which states that each signature to the petition is the genuine signature of the person whose name it purports to be and that each such person is a qualified elector of the State of North Dakota, such signatures may not be counted. However, under the Constitution, when any signatures are found to be insufficient for such reason, the Secretary of State shall notify the 'Committee for the Petitioners' and allow twenty days for correction or amendment. Where a new affidavit is filed and the date of such affidavit is corrected and is subsequent to the date on which the electors signed the petition, such names may be counted as valid signatures.

7. Where signatures on a referendum petition are claimed to be invalid because residences and postoffice addresses of persons who signed the petition show that such persons reside in widely separated areas of the State, and that it would have been difficult for the circulator of such petition to have secured the signatures of persons living in such widely scattered areas on the date or dates set out on which the petition purportedly was signed, such signatures nevertheless are presumed to be genuine in the absence of a showing of their invalidity by persons attacking the petition.

8. Allowing the committee of sponsors of a referendum petition twenty days in which to make corrections or amendments was proper, under the Constitution, where the number of valid signatures on such petitions was found to be insufficient by the Secretary of State. The Constitution does not provide that time shall be allowed for correction only; it states that if the petition is found to be insufficient, twenty days must be allowed for correction or amendment. Where corrections or amendments to petitions are made by someone at the specific direction of the signer, the corrected information becomes the act of the signer Ab initio.

9. For reasons stated in the opinion, the decision of the Secretary of State, finding the petitions to refer to a vote of the people Senate Bill No. 410 as sufficient, is approved.

William C. Kelsch, Mandan, and Gerald G. Glaser, Bismarck, for petitioners.

Helgi Johanneson, Atty. Gen., and Paul M. Sand, First Asst. Atty. Gen., Bismarck, for Secretary of State.

Patrick A. Conmy, Bismarck, for Referral Committee.

STRUTZ, Justice.

On June 16, 1969, petitions were filed in the office of the Secretary of State, bearing 7,496 purported signatures of qualified electors of this State, seeking to refer to a vote of the people Senate Bill 410, now Chapter 413 of the 1969 Session Laws. The bill, as passed by the Legislative Assembly, authorized the construction of a multipurpose building on the State Capitol grounds, which proposed building was to be constructed for the use and occupancy of the Bank of North Dakota and such other legislative and executive uses as were provided by the Act. The Act further provided for an appropriation for the cost of construction of such building.

On June 23, the Secretary of State found the signatures on such petitions to be insufficient and he thereupon returned 118 of the petitions to the committee sponsoring the referral, allowing twenty days for correction or amendment. These petitions subsequently were returned to the Secretary of State within the constitutional time limit, after having been corrected or amended. After the return of such petitions, they again were examined and were found by the Secretary of State to contain 7,414 valid signatures. He thereupon announced that the petitions were sufficient to refer Senate Bill 410.

On September 12, 1969, the petitioners in this proceeding (as distinguished from the electors who signed referral petitions) presented to this court a petition for review of the sufficiency of the referral petitions and for a review of the decision of the Secretary of State as to their sufficiency. We issued an order to show cause, returnable at 10 a.m. on October 7, 1969. On that date, the Secretary of State appeared in person and by his counsel, the Attorney General of the State of North Dakota, and presented all of the referral petitions which had been filed with him, which he had found, after correction or amendment of some, to be sufficient to refer Senate Bill 410 to the people. Arguments were presented by both parties, and the matter was submitted on the pleadings, on certain affidavits submitted, and on the petitions filed. No other evidence was presented by either party.

The petitioners assert that the referendum petitions which were finally filed with and approved by the Secretary of State do not have a sufficient number of valid signatures to comply with the constitutional requirements for the referral of an Act of the Legislature to a vote of the people. It is undisputed that more than the required 7,000 names appear on these petitions, but the petitioners contend that a number of the signatures are invalid and do not qualify as referral signatures, either under the provisions of the Constitution or under Section 16--01--11, North Dakota Century Code, which establishes certain regulations governing initiative and referendum petitions. They further assert that if the invalid signatures are not considered, the petitions will have less than the required 7,000 names. They urge numerous objections to various signatures appearing on the petitions, some of the names being subject to several of the objections raised. We shall consider and discuss the objections raised in the order in which they are made by the petitioners.

In paragraph VIII--A of their petition, the petitioners first assert that 1,601 of the signatures are invalid and may not legally be counted for the reason that the signers have failed to state their places of residence sufficiently and have set out only the name of the county in which they live as their residence.

Section 25 of the North Dakota Constitution reserves to the people of the State the power to reject measures which the Legislative Assembly has passed, and it sets forth, among other things, how that power shall be exercised. In this regard, it provides:

'The Secretary of State shall pass upon each petition, and if he finds it insufficient, he shall notify the 'Committee for the Petitioners' and allow twenty days for correction or amendment. All decisions of the Secretary of State in regard to any such petition shall be subject to review by the supreme court. But if the sufficiency of such petition is being reviewed at the time the ballot is prepared, the Secretary of State shall place the measure on the ballot and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon. If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it.'

Section 25 of the Constitution further provides that it shall be self-executing and that its provisions are mandatory. It also provides that laws may be enacted to facilitate its operation, but that no law shall be enacted to hamper, restrict, or impair the exercise of the rights reserved therein to the people.

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