Kays v. McCall

• Decision Date: 22 September 1966
• Citation: 418 P.2d 511,244 Or. 361
• Parties: James W. KAYS and Lois S. Miller, Respondents, v. Tom McCALL, Secretary of State, Appellant, Clyde V. Brummel et al., Intervenor-Appellants.
• Court: Oregon Supreme Court

Page 511

418 P.2d 511

244 Or. 361

James W. KAYS and Lois S. Miller, Respondents, v. Tom McCALL, Secretary of State, Appellant, Clyde V. Brummel et al., Intervenor-Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 15, 1966.

Decided Sept. 22, 1966.

Carl R. Neil, Portland, argued the cause for intervenor-appellants. With him on the briefs were Thomas R. Mahoney, Gunther F. Krause, and Krause, Lindsay & Nahstoll, Portland. Robert Y. Thornton, Atty. Gen., and Louis S. Bonney, Asst. Atty. Gen., Salem, filed briefs for appellant Tom McCall.

John C. Beatty, Jr., Portland, argued the cause for respondents. With him on the brief were William C. Martin, Frederick T. Smith, and Dusenbery, Martin, Beatty, Parks & Templeton, Portland, Sidney E. Thwing and Thwing, Ferris, Atherly & Butler, Eugene, George H. Corey and Corey, Byler & Rew, Pendleton, Robert L. Ridgley, Portland, and Orval Etter, Eugene.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

PER CURIAM.

This is a suit to enjoin the Secretary of State from certifying a proposed initiative amendment to the Oregon Constitution which would limit property taxes to 1 1/2% Of market value. The certification is attacked on the ground that the petition filed with the Secretary of State by the sponsors of the proposal did not contain the requisite number of certified signatures. A three-judge trial court held the certification defective and enjoined the Secretary of State from certifying the measure to the county clerks for printing upon the ballot for the November 8, 1966 general election.

The present appeal presents two questions for determination: (1) Is the correct basis for computing the number of signatures required on a state-wide initiative petition the highest number of votes received by a single candidate for the state Supreme Court at the previous general election, or is it the highest number of votes cast for any one Supreme Court position at such election? (2) Can signatures which are not certified on the final day for filing, but which are subsequently certified be counted toward the total valid signatures on the petition? On the first issue the trial court held the proper basis for computation was the highest number of votes cast for any one Position. On the second question the trial court held that only those signatures which are certified by the filing deadline may be counted.

Art. IV, § 1 of the Oregon Constitution provides in part as follows:

'* * * The first power reserved by the people is the initiative * * * and not more than 10 percent of the legal voters of the state shall be required to propose any constitutional amendment by such petition * * *. The whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative * * * shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. * * *'

On July 7, 1966, the final day for filing the petition, ¹ the sponsors filed a petition with 62,891 signatures which were certified by the county clerks as required by ORS 254.040. ² At the same time, 12,000 additional uncertified signatures were filed with the Secretary of State, of which 11,474 were certified after July 7, 1966. Prior to filing, the sponsors of the petition were advised by the Director of Elections that only 57,779 certified signatures were necessary to satisfy the requisite constitutional percentage. He arrived at this conclusion by taking 10% Of 577,793, the votes cast at the November, 1964 general election for Kenneth J. O'Connell, who was unopposed in his bid for re-election to position No. 2 on the Oregon Supreme Court. At the same election, Ralph Holman and Edward Howell were in contest for Supreme Court position No. 7. The total votes cast for both Holman and Howell was 653,117.

The Director of Elections arrived at his conclusion on the theory that the votes cast for a Single candidate rather than for the Position was the base upon which to apply the required percentage. This conclusion was reached in the face of a contrary practice over a period of 30 years by his predecessors in office, who had employed as the constitutional base the whole number of votes cast for a position rather than for a single candidate. ³ The Director of Elections changed the method of computation because he was of the opinion that the prior administrative practice was incorrect. He based this conclusion on the ground that the case of Othus v. Kozer, 119 Or. 101, 248 P. 146 (1926) was controlling. It is true that in the Othus case the court used the greatest number of votes any candidate received as a base for computing the constitutional percentage. But, as Mr. Justice Bailey explained in State ex rel. Postlethwait v. Clark, 143 Or. 482, 494, 22 P.2d 900 (1933), this was done because 'at the time the decision in the Othus case was rendered (July, 1926), it was impossible to approximate the 'whole number ov votes cast for justice of the Supreme Court,' as there were two justices to elect and the names of three candidates appeared on the ballot. The two candidates receiving the greatest number of votes were elected.' The court in the Othus case noted that there was 'no way of ascertaining with any degree of certainty the number of voters who voted for justice of the Supreme Court without opening the ballot boxes and actually examining each ballot,' (119 Or. at 106, 248 P. at 148) and decided that under the circumstances the best possible, although admittedly imperfect, estimate was the number of votes cast for a single candidate. Mr. Justice Bailey went on (State ex rel. Postlethwait v. Clark, supra, 143 Or. at 494, 22 P.2d at 904) to explain that when the legislature in 1929 provided that aspirants for the Supreme Court were to be candidates for a numbered position, the difficulty encountered in the Othus case was no longer presented and that under the new system 'the greatest number of votes cast for all the candidates for any one position in the Supreme Court more nearly approximates 'the number of electors who voted * * * at the preceding election for justice of the Supreme Court' than would result from following the method adopted in the Othus case.'

In light of this clear explanation of the inapplicability of the Othus case after the 1929 change in the method of electing justices of the Supreme Court, it is difficult to understand how the Director of Elections and his advisors could have reached a contrary conclusion. We hold, therefore, that the trial court correctly held that the highest number of votes cast for any one Supreme Court position is the proper basis upon which to compute the number of signatures required on a state-wide initiative petition.

We turn to a consideration of the second issue raised on this appeal. The intervening defendants contend that the Secretary of State is required to count signatures on the petition submitted on July 7, 1966, even though not certified on that date, if the signatures are later certified and returned to the Secretary of State for filing. If this position is accepted, the petition in the present case, although lacking the requisite number of certified signatures on July 7, 1966, became valid by the subsequent certification of a sufficient number of additional signatures after that date. ⁴

Art. IV, § 1 of the Oregon Constitution provides that 'initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.' The constitution does not purport to prescribe all of the requirements for a valid petition. It contemplates implementation by legislation. ⁵ ORS 254.040 implements the constitution by requiring certification of signatures for a valid petition. Defendants do not contend that the legislature cannot prescribe reasonable requirements to assure the verity of initiative petitions. ⁶ But defendants, in effect, argue that legislative requirements need not be met at the time the petition is filed if the requisite number of signatures appear on the petition. This is patently untenable. The purpose of the constitutional deadline would then be vitiated since it would not be possible to determine whether the petition was valid until some indefinite time after the deadline. By this reasoning the Director of Elections might not know whether the petition was valid until the very eve of the election. This could produce an intolerable situation because the Director of Elections might not be able to make the necessary preparations for putting the issue on the ballot, which is the very purpose of the constitutional deadline.

Kellaher v. Kozer, 112 Or. 149, 228 P. 1086 (1924) is directly in point, holding that after the constitutional deadline a petition cannot be withdrawn for the purpose of having signatures certified. Cases from other jurisdictions reach similar conclusions. ⁷ We believe that these decisions are sound for the reason we have given above.

Defendant-intervenors argue that the rule recognized in the Kellaher case makes certification of the requisite number of signatures prior to the deadline depend upon the uncontrolled discretion of the county clerk. This is not true. ORS 254.040 provides that:

'* * * (4) The county clerk shall not retain in his possession any petition or any part of one for longer than two days for the first 200 signatures on it and one additional day for each 200 additional signatures, or fraction thereof, on the sheets presented to him. At the expiration of that time he shall deliver it to the person from whom he received it, with his certificate attached.'

This section imposes upon the county clerk the duty to certify signatures at the minimum rate specified in the statute. The legislature must have intended that the sponsors of an initiative petition be required to submit signatures to the county clerk...