Nist v. Herseth
| Decision Date | 13 September 1978 |
| Docket Number | No. 12518,12518 |
| Citation | 270 N.W.2d 565 |
| Parties | Theodore A. NIST, Plaintiff, v. The Honorable Lorna B. HERSETH, Secretary of State of the State of South Dakota, Defendant. |
| Court | South Dakota Supreme Court |
Terence A. O'Keefe and Jeffrey T. Sveen of Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, for plaintiff.
Harry W. Christianson, Asst. Atty. Gen., Pierre, for defendant; William J. Janklow, Atty. Gen., Pierre, on the brief.
On February 1, 1978, the South Dakota House of Representatives passed House Bill No. 1277, entitled "An Act to Repeal the Guest Statute." The bill passed the Senate without amendment on February 7, 1978, and was signed by the Governor on February 23, 1978, and now appears as Ch. 240, Laws of 1978. On March 10, 1978, pursuant to SDCL 2-1-6.1 a blank copy of a referendum petition identifying the above described Act as the object of a referral effort was filed with the Secretary of State, defendant herein. By May 25, 1978, the petition in 356 sections containing 17,666 signatures had been filed with defendant.
On June 19, 1978, plaintiff made application to this court for issuance of a writ of prohibition seeking to restrain defendant from certifying the question involved to a vote at the next general election. On June 20, 1978, we appointed a referee to make findings of fact in the matter. The referee's report was filed July 19, 1978. The parties do not dispute the referee's findings.
There were 278,228 votes cast in the 1974 gubernatorial election. The number of signatures required on a petition to refer a question to the people in the 1978 general election is, according to SDCL 2-1-3, five percent of the votes cast in the last preceding gubernatorial election, or 13,912 signatures. As filed, the petition contained 3,754 signatures beyond the statutory minimum.
The issue before us is whether there are sufficient valid signatures to refer Ch. 240, Laws of 1978, to a vote of the people. We are guided in our decision by the principle that the right of the people to be heard on legislative issues of the day should be maintained and by the legislative directive found in SDCL 2-1-11 that the real intention of the petitioners should not be defeated by mere technicalities.
Plaintiff attacks the entire petition through two general objections. First, he objects that the reference to the subject of the referendum campaign as printed at the top of each petition section is not sufficient. 1 We find this objection to be without merit. Second, plaintiff asserts that because some thirty-seven sections of the petition were circulated prior to the filing required by SDCL 2-1-6.1, the entire petition The remaining challenges fall into four categories: (1) Improper circulation; (2) Improper notarization; (3) Improper petition forms; and (4) Defective signatures.
must fail. We do not agree. Plaintiff cites no authority in support of his request for the application of this harsh penalty. We will not defeat the real intent of the signers on a mere technicality. Defendant concedes, and we accept for the purposes of this case, that the 542 signatures dated prior to the March 10, 1978, filing date may not be counted.
The first challenge under this objection deals with sections of the petition that were not signed by the circulators. A committee in Huron, South Dakota, coordinated the petition drive. Twenty-six sections of the petition containing 896 signatures were returned to the committee without the required notarized verification affidavits. Various members of the committee signed the verification affidavits, and another member notarized these signatures. These affiants did not see any of the alleged petitioners sign. One of them admitted that to her knowledge the names could have been taken from grave stones. Therefore, the verification oaths were knowingly false.
In addressing the matter of fraudulent affidavits we said in Jensen v. Wells, 66 S.D. 236, 281 N.W. 99: 66 S.D. at 243, 281 N.W. at 103. In Helgerson v. Riiff, 73 S.D. 467, 44 N.W.2d 126, we expanded upon this rule, saying:
(I)ntent to deceive is not ordinarily susceptible of direct proof and in the absence of evidence to the contrary may be presumed where the falsity was necessarily known to the affiant. The effect of such presumption is to cast upon the party seeking to sustain the validity of a petition the burden of producing evidence to show that affiant acted in good faith. 73 S.D. at 474, 44 N.W.2d at 129-30.
Defendant makes no attempt to meet this burden and concedes that these 896 signatures may not be counted. We agree. As we said in O'Brien v. Pyle, 51 S.D. 385, 393, 214 N.W. 623, 626, "(N)o one is authorized by law to doctor up a sick petition."
The second challenge under this objection concerns sections of the petition that contain signatures that the person who signed as circulator did not personally observe being made, either because more than one person circulated the section, or because the section was left unattended in commercial establishments by the circulator. It has long been the rule in this state that a circulator must personally witness each signature on a petition. Morford v. Pyle, 53 S.D. 356, 220 N.W. 907; Jensen v. Wells, 66 S.D. 236, 281 N.W. 99; Jensen v. Wells, 66 S.D. 269, 281 N.W. 357.
SDCL 2-1-7 provides:
Every petition proposing a measure must contain the substance of the law desired and Must be signed in person by the petitioners, and every petition to submit a law to a vote of the electors Must be signed in person by the petitioners . . . . (Emphasis supplied)
The emphasized portion of the statute means that a person may sign only his own name. For this to be meaningful, it follows that each person must sign in the presence of the one who must ultimately attest to the legality of the signatures. This conclusion is buttressed by the words of the affidavit each circulator must sign:
I, being first duly sworn, on oath depose and say that I circulated the above petition, and I hereby attest the legality of the signatures. 2
(Signed)
Subscribed and sworn to before me the day of , 19 .
(SEAL)
(Signed)
(Signed) (Officer Administering Oath)
The purpose of the required affidavit is to establish the genuineness of the signatures on the petition. Morford v. Pyle, supra. To say that a person could attest to the "legality of the signatures" without having seen those signatures made is to make the words of the oath empty of meaning. Accordingly, we hold that only those signatures obtained in the presence of the circulator may be counted. 3
We find that in twelve sections of the petition containing 381 signatures, the circulator did not see any of the petitioners sign the petition. Accordingly, these signatures may not be counted.
In thirteen sections of the petition containing 760 signatures, the circulators did not personally obtain all of the signatures on the section and were unable to identify which signatures they did obtain. In these instances, the circulators made a percentage estimate of the number of signatures they personally obtained. We may not arbitrarily decide which signatures were signed in the presence of the circulator and which were not. Accordingly, these sections must fail. Admittedly, as a result of this ruling some valid signatures will not be counted; however, as we said in Morford v. Pyle, supra, "The person who circulates the petition is the agent of the petitioners, and they are bound by his acts." 53 S.D. at 362, 220 N.W. at 910.
We also find that thirty-eight sections of the petition were circulated by persons other than the person who signed as circulator. As a result, 1,315 signatures were not personally obtained by the verifying circulator. These signatures may not be counted.
Two sections of the petition containing 116 signatures were not notarized. As previously discussed, the form of petitions has been duly established by the State Board of Elections. This form requires that the circulator's affidavit be notarized. Such requirement is not onerous and is designed to insure the integrity of the referendum process. Both Jensen v. Wells cases, supra. As we said in Helgerson v. Riiff, supra, "The affixing of the official seal by the certifying officer is essential under the statute to the validity of an affidavit." 73 S.D. at 476, 44 N.W.2d at 130. Accordingly, these 116 signatures may not be counted.
We also find six sections of the petition containing 254 signatures to have defective notarizations. In two instances notaries attested to their own signatures as circulators; in two instances notaries affixed their seals without ever seeing the affiants; and in two instances because the notaries had omitted their official seals a second notary at the Huron headquarters crossed out their signatures and attempted to notarize the documents without having seen the affiants. "Such practice(s) (are) beyond the pale of law and order." O'Brien v. Pyle, supra, 51 S.D. at 392, 214 N.W. at 626. Accordingly, these 254 signatures may not be counted.
We further find that sixty-seven signatures were placed on various sections of the petition after the particular section had been verified and notarized. Not having been verified, these signatures may not be counted.
Plaintiff challenges several more sections of the petition on various technical faults in notarization. We do not find these objections sufficient to overcome the presumption of regularity attending a notary's signature and seal. Prigge v. Johns, 184 Neb. 103, 165 N.W.2d 559; 31A C.J.S. Evidence § 146C.
We find that the verification on one section of the petition containing twenty signatures is not in the form prescribed by the State Election Board. We also find...
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