In re Initiative Petition No. 145, State Question No. 215
| Decision Date | 16 April 1940 |
| Docket Number | 27284. |
| Citation | 102 P.2d 189,187 Okla. 284,1940 OK 200 |
| Parties | In re INITIATIVE PETITION NO. 145, STATE QUESTION NO. 215. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 14, 1940.
Syllabus by the Court.
1. Where the certificate or supporting affidavit of a circulator of an initiative petition is impeached for fraud, the probative value thereof is destroyed and none of the signatures on the pamphlet or part of such initiative petition covered by impeached certificate or affidavit will be counted unless affirmatively proved to be genuine.
2. In the absence of evidence of intentional fraud or guilty knowledge on the part of the circulator of an initiative petition, only the signatures of those persons appearing on that part of the petition proved or admitted to be forged fictitious or signed by persons other than the purported signer, or for other reasons shown to be invalid, should be rejected.
Proceeding in the matter of the State Question No. 215, Initiative Petition No. 145, proposing a constitutional amendment providing a graduated land tax. From an order of the Secretary of State overruling the petition on ground that it did not contain a sufficient number of valid signatures, the proponents appeal.
Order overruled, and petition held sufficient.
Chas West, of Oklahoma City, for proponents.
McPherren & Maurer, of Oklahoma City, for protestant.
This is an appeal from the decision of the Secretary of State holding Initiative Petition No. 145, State Question No. 215 proposing a constitutional amendment, providing a graduated land tax, insufficient as not containing a sufficient number of valid signatures.
The protest as filed before the Secretary of State sets forth 19 grounds as cause for rejecting the petition. The first five grounds go to matters pertaining to alleged irregularities other than the number of qualified signatures on the petition. These matters have apparently been abandoned and are not for consideration here.
The sixth ground of protest is that the petition does not contain a sufficient number of signatures of legal voters to entitle it to be submitted to the people for adoption or rejection.
The remaining grounds go to different specific reasons why signatures to the petition falling in certain classes should be stricken, such as a large number of pamphlets each containing 20 or less names were not properly verified, in that some of them do not show the county in which verifications were made; some do not show the name of the circulator on the affidavit of verification; some appear to have been verified by one person as circulator while in fact another person was the circulator; also that the names of certain alleged signers were forged, and that some are fictitious; that some signers did not sign their names in the presence of the circulator; that residence or post office addresses of many signers were not given; that the names of many signers are duplicated; that many of the pamphlets making up said petition do not contain a true and correct copy of the petition as filed with the Secretary of State; that a large number of the signers are not legal voters of the State, and finally a charge of fraud on the part of many circulators, such as forgery and false affidavits to the petition.
The protest was heard by the Secretary of State, the result was a finding that the petition did not bear the signatures of a sufficient number of legal voters of the state, and that the petition was insufficient on that account.
The proponents appeal, and the matter comes before this court for a hearing de novo.
It being apparent that the hearing de novo in this court required taking evidence concerning the validity of a vast number of purported signers, the court referred the matter to Honorable P. W. Holtzendorf, referee, with directions to take evidence and make findings of fact thereon and present such findings of fact together with conclusions of law to this court. Extended hearings were had by the referee wherein a vast amount of oral and documentary evidence was presented. The record contains 2,000 typewritten pages of evidence besides many exhibits. The hearing extended over a period from November, 1937, to January, 1939. The hearing, however, was interrupted and suspended a number of times by applications to the court to stay proceedings for the determination of questions of law relative to the admission of evidence.
The transcript of the record was not prepared and delivered to the referee until February 7, 1940. On February 20, 1940, the referee filed his findings of fact and conclusions of law. (The delay was not in any way the fault of the referee, but was occasioned by the difficulty in collecting and assembling evidence from the four corners of the state, by agreement of the parties, and delay in briefing.)
The sole issue in this court is whether the petition is properly signed by the requisite number of legal voters of the State.
The findings of the referee discloses that there was filed with the Secretary of State, pamphlets purporting to contain 172,780 signatures to the petition. By admission of the parties it was agreed the total number of signers was 172,632. It was also agreed that 94,250 valid signatures would be sufficient to sustain the petition.
The findings of the referee show that on the question of alleged signers not being registered voters, protestant caused a list of names of signers on pamphlets circulated in Oklahoma, Blaine, Caddo, Canadian, Cleveland, Comanche, Garfield, Grady, Greer, Jackson, Major, Rogers, Muskogee and Roger Mills Counties, containing in all about 52,417 signatures, to be prepared and checked against the list of registered voters in each of said counties, and from the check so made, it appears that 32,991 signers from said counties were not on the registration books or lists in said counties.
Protestant does not claim that the findings of fact or any one of them made by the referee are not sustained by the evidence. A re-check of the lists from two or three of the counties establishes a considerable percentage of the challenged signers to be registered voters. In some instances the names were found upon the county registration books and were apparently overlooked by the persons employed by protestant to check the pamphlets against these books. In other instances proponents were able to and did produce registration certificates of challenged signers whose names did not appear on the registration books. This was particularly true of Oklahoma County.
Of approximately 100 names selected at random from the names from Oklahoma County challenged by protestant as not being registered, 48 or 49 were found to be properly registered.
In some of the other fourteen counties the registration books were shown to be so incomplete as to be unreliable. This is particularly true of Cleveland and Rogers Counties.
But, giving protestant the benefit of every name challenged as not being registered, not more than 32,991 signatures could be stricken as not being legally registered voters. This would leave the petition with 19,726 registered voters as signers in the fourteen counties named.
Protestant contends, however, that the referee should have found, by the fact that such a preponderance of the purported signers were found not qualified to sign, that the circulators did not in good faith exert reasonable care to restrict signers to qualified persons, and should have recommended that the petition be held insufficient on that ground. In other words, protestant contends that all the pamphlets from the fourteen counties named, involving 52,417 signers should be excluded.
To do so would unjustly deprive approximately 19,726, apparently honest signers, who were in every way qualified to sign the petition, of their right to have their signatures counted,...
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