Kaesser v. Becker
| Decision Date | 18 July 1922 |
| Citation | 243 S.W. 346,295 Mo. 93 |
| Parties | PAUL V. KAESSER v. CHARLES U. BECKER, Secretary of State, and ALBERT H. HAMEL, Intervening Defendant, Appellants |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court -- Hon. John G. Slate, Judge.
Affirmed.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for Secretary of State; Dumm & Cook for intervening appellant.
(1) The court committed error in overruling the exceptions filed by appellant and intervening appellant to the findings of facts made by the special master in chancery; and committed error in sustaining and approving the findings of fact made by the special master and in rendering the judgment herein. (a) The primafacie case as to the sufficiency of the referendum petition filed, made for the proponents of the petition by the petition itself, the signatures contained thereon together with the verification of the circulators thereof has not been overcome by the preponderance of the evidence in this case, the question of fraud being eliminated. Article IV, sec. 57, Mo. Constitution; Secs. 5906 to 5909, R. S 1919; State ex rel. v. Carter, 257 Mo. 52, 77; State ex rel. v. Roach, 190 S.W. 280; State ex rel. v. Sullivan, 283 Mo. 547, 592; Woodward v Barbur, 59 Ore. 70; Re Initiative Petition, 26 Okla. 487, 109 P. 732; State ex rel. v. Olcott, 62 Ore. 277, 125 P. 303; State ex rel. v. Olcott, 135 P. 902 (Ore.) . (b) Any person who is a qualified elector may sign a petition for the referendum. Sec. 5914, R. S. 1919. (c) The names on a petition are entitled to be counted where the name of the verifying petitioner appears on any section of the petition. Thompson v. Vaughan, 159 N.W. 65, 70; Re Opinion of Justices, 95 A. 869. (d) The procedure by the referendum under the statute is sufficient if substantially followed. State ex rel. v. Carter, 257 Mo. 52, 79; Kress v. Estes, 43 Okla. 213, 142 P. 411; State ex rel. v. Superior Court, 81 Wash. 623, 143 P. 461; Minges v. Merced, 27 Cal.App. 15, 148 P. 816; Norris v. Cross, 25 Okla. 287, 105 P. 1000; Palmer v. Benson, 50 Ore. 277, 91 P. 579; Stevens v. Benson, 50 Ore. 269, 91 P. 577; Day v. Salem, 65 Ore. 114, 131 P. 1028. (e) The fact that there are many names, places of residence and voting precincts, all apparently in the same handwriting upon the petition for referendum, is not sufficient to justify the conclusion that the names were written thereon fraudulently, and that they should therefore be rejected. Thompson v. Vaughan, 159 N.W. (Mich.), 65, 69. (f) The failure of certain signers of a petition to state the county and state in which they live, in addition to the city or village, is not such a defect as requires the rejection of such names. Bartling v. Wait, 96 Neb. 532, 148 N.W. 507. (g) The Secretary of State having authority to determine the sufficiency and validity of referendum petitions, his decision is final in the absence of fraud. State ex rel. v. Graves, 90 Ohio, St. 311, 107 N.E. 1018; Thompson v. Vaughan, 159 N.W. 68; Woodward v. Barbur, 59 Ore. 70, 116 P. 101; Re Initiative Petition, 26 Okla. 487, 109 P. 732; Re Initiative Petition, 35 Okla. 49, 127 P. 862. (h) The presumption is that all signatures of a referendum petition are valid, because of the fact that it is made an offense by statute for any person to intentionally sign a referendum petition with any name other than his own, or to knowingly sign his name more than once for the same measure, or to sign such petition when he is not a legal voter. Sec. 5914, R. S. 1919; State ex rel. v. Olcott, 135 P. (Ore.), 902; State ex rel. v. Olcott, 62 Ore. 277, 125 P. 303. (i) The testimony introduced in this case by the proponents of the Act is not sufficient to impeach the validity of the signatures. Article IV, sec. 57, Mo. Constitution; Secs. 5906 to 5909, R. S. 1919; Sec. 5914, R. S. 1919; State ex rel. v. Carter, 257 Mo. 52; Re Initiative Petition, 35 Okla. 49, 127 P. 862; Woodward v. Barbur, 59 Ore. 70, 116 P. 101; State ex rel. v. Olcott, 62 Ore. 277, 125 P. 303. (j) The fact that the names of the signers were not copied legibly in the verification clause, or did not exactly correspond with the names as they appeared on the face of the petition, is not sufficient to exclude such signatures, in the absence of any other proof of disqualification. Re Initiative Petition, 35 Okla. 49, 127 P. 862. (k) The mere fact that signers of said petition gave their place of residence or postoffice address, as general delivery, St. Joseph, Missouri, or that signers of said petition were not found to reside or to have resided at the address stated on the petition, is not in itself sufficient to invalidate such signatures. Such errors are cured by the saving clause in the statute to the effect that: "The forms herein given are not mandatory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors." Sec. 5908, R. S. 1919; State ex rel. v. Carter, 257 Mo. 52; State ex rel. Hill v. Olcott, 135 P. 902 (Ore.) . (1) A signature to a referendum petition is not illegal for the reason that it is illegible, in the absence of a showing that it is not genuine. State ex rel. Hill v. Olcott, 135 P. 902 (Ore.) . (m) In case of the omission of the jurat or signature thereto upon an affidavit to a sheet of the referendum petition, the fact that the oath was administered at the time may be shown aliunde. McCartney v. Branch Bank, 3 Ala. 709; Kruse v. Wilson, 79 Ill. 233; Cook v. Jenkins, 30 Iowa 452; James v. Logan, 82 Kan. 285; Dunlap v. Clay, 65 Miss. 454; Hart v. Jones, 6 Kulp (Pa.) 326; Wiley v. Bennett, 9 Baxt. (Tenn.) 581; Farmers' Bank v. Gettinger, 4 W.Va. 305; Neff v. Alvin, 182 Ill.App. 41; Turner v. St. John, 8 N.D. 245, 78 N.W. 340; Finley v. West, 51 Mo.App. 569; Sage v. Stafford, 59 N.Y.S. 545. In such case the officer may sign after proof is made. Finley v. West, 51 Mo.App. 569. (n) In legal contemplation "to sign" means to attach a name, to cause it to be attached, to assent to it being attached, or to ratify or adopt it after it has been attached by any of the known methods. Lamaster v. Wilkerson, 143 Ky. 226, 136 S.W. 217; Hamilton v. State, 103 Ind. 96, 2 N.E. 299; Herrick v. Morrill, 37 Minn. 250, 33 N.W. 849; In re Deep River National Bank, 73 Conn. 341; Ardery v. Smith, 35 Ind.App. 94; Cummings v. Landes, 140 Iowa 80, 117 N.W. 22.
Lewis C. Gabbert for respondent.
(1) This is the proper action; brought before the proper tribunal; and there has been an ample showing by clear cogent, convincing and uncontradicted proof that the petition is not legally sufficient. (2) While the petition from the Fourth District on its face is sufficient, and clearly under the law the Secretary of State had no alternative but to file same, yet respondent's suit is to enjoin appellant from proceeding further with the petitions; and respondent willingly assumes the burden of proving the petition on file is not in compliance with the law, in the tribunal, and by the action required and directed by the law. The court had no alternative. Art. 4, sec. 57, Mo. Constitution; R. S. 1919, sec. 5909; State ex rel. v. Carter, 257 Mo. 77; State ex rel. McNary v. Olcott, 125 P. 303 (Ore.) . (3) Sheet number 59, circulated by Mrs. Bessie Foster and sworn to by Dr. Phene Skinner, containing forty names, and sheet number 35, circulated by Ora Earl Whitsell and sworn to by Dr. J. C. Whitsell, containing forty names, should be stricken. Neither of these sheets, embracing eighty names, were sworn to by the circulator; not one of the names were signed in the presence of the affiant; and each sheet is confessedly supported by a wholly false verification. R. S. 1919, sec. 5908. (4) Sixteen names were written by others without authority, prior or subsequent; thirteen names were written by others without authority, but without objection when afterwards informed of it; seventeen names boldly copied by E. S. Gartland from the petition of Carl McCombs; totaling forty-six names that were written beneath the printed words of the statute declaring such act a felony and heading this petition. This is not complying with the statutes in form or substance. It is a flagrant violation of the statute. R S. 1919, secs. 5906, 5908. (5) Two hundred and six names appear on various sheets of the petition over affidavits in the very words of the statute "and each of them signed his name in my presence." Not one of these were signed in the presence of the affiant who verified such sheets. These names should be stricken, because the sheets upon which they appear have not been verified by the person "who circulated said sheet of said petition." R. S. 1919, sec. 5908. (6) We are unable to follow the reason for appellant's contention that the three persons who gave their residence as of a place outside the Fourth District should be counted. The language of the Constitution and the statute, "signed by five per cent of the legal voters in each of at least two-thirds of the congressional districts in the State," is so plain that he who runs may read. Mo. Constitution, art. 4, sec. 57; R. S. 1919, sec. 5907. (7) While it is conceded that failure to write an address opposite one's name on the petition where such signer was shown to be in fact a bona-fide resident of the district, might not justify striking such name from the petition, yet in the signatures of four persons who gave their addresses as "General Delivery, St. Joseph, Mo." clearly should not be counted, for either they had no place of residence or openly flouted the provision of the statutes requiring residence to be given, in a city such as St. Joseph requiring street and number to be given. Furthermore, the burden was upon the appellant to show actual residence, when the petition on its face...
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