O’Brien v. Pyle

• Decision Date: 29 June 1927
• Docket Number: 6528
• Citation: 214 N.W. 623,51 S.D. 385
• Parties: THOMAS O’BRIEN et al, Plaintiffs, v. GLADYS PYLE, Secretary of State, Defendant.
• Court: South Dakota Supreme Court

51 S.D. 385

214 N.W. 623

THOMAS O’BRIEN et al, Plaintiffs,

v.

GLADYS PYLE, Secretary of State, Defendant. South Dakota Supreme Court Original Proceedings File No. 6528—Judgment for plaintiffs M. G. Luddy, Sioux Falls, SD McNamee, O’Keeffe & Stephens, Pierre, SD Attorneys for Plaintiff. Buell F. Jones, Attorney General Ray F. Drewry, Assistant Attorney General, Pierre, SD Attorneys for Defendant. Opinion filed June 29, 1927

GATES, J.

This action was brought in this court to enjoin the secretary of state from filing, recognizing, or acting upon a referendum petition presented to her on June 2, 1927, by Ben C. Ash. Said petition seeks to refer to popular vote at the next general election in November, 1928, the act of the regular session of the 1927 Legislature known as Senate Bill 104, and designated in the official edition of the Session Laws of 1927 as chapter 54. Said chapter is an act relating to banks, the title of which hereinafter appears. The secretary of state answered the complaint, and as a part of her return submitted affidavits of R. O. Richards, Tom Ayres, and Ben C. Ash. Testimony was taken in the form of depositions and in open court, and on June 20, 1927, the cause was submitted to the court upon the record and upon oral arguments.

The broad question before us is whether the said referendum petition constitutes a valid petition with a sufficient number of signers. If it does, then the secretary of state must file it, and the operation of said chapter 54 will be suspended until its adoption by popular vote in November, 1928, and until the canvass of such vote. If it does not constitute a valid petition, then the secretary of state must not file it, and said chapter 54 will take effect and be in force on and after July 1, 1927.

The sections of Rev. Code 1919, enacted to carry into effect the referendum feature of article 3, § 1, of the Constitution, are as follows:

“Sec. 5069. Enactments Submitted to Vote of Electors. Any law which the Legislature may have enacted, except one which may be necessary for the immediate preservation of the public peace, health or safety or support of the. state government and its existing public institutions, shall, upon the filing of a petition as hereinafter provided, be submitted to a vote of the electors of the state at the next general election. Such petition shall be signed by not less than five per cent of the qualified electors of the state, and each elector shall add to his signature his place of residence, business, post office address, and date of signing, which petition shall be filed in the office of the secretary of state within ninety days after the adjournment of the Legislature which passed such law, and if a majority of all the votes cast both for and against the law be for the law, it shall become a law of the state, in force and effect on and after the day upon which the canvass of the vote thereon has been completed by the state canvassing board.

“Sec. 5070. Required Number of Petitioners Determined. The total number of votes cast for Governor, at the last preceding general election, shall for the purposes of this article, be the basis for determining the number of petitioners required.”

“Sec. 5072. Qualifications of Petitioner, Penalties. Every person who is a qualified elector may sign a petition to propose a measure or submit a law, and any person signing who is not a qualified elector of this state, shall, upon conviction thereof, be fined in any sum not to exceed five hundred dollars or may be imprisoned in the state penitentiary for a term not to exceed five years; and the court may, in its discretion, impose both such fine and imprisonment.

“Sec. 5073. Petition Liberally Construed. The petitions herein provided for shall be liberally construed so that the real intention of the petitioners may not be defeated by a mere technicality. It shall not be necessary that one paper shall contain all the signatures, but a single petition may be made up of one or more papers, each having the requisite heading. Separate papers, in proper form and duly signed, may, before filing, be bound together and shall be regarded as one petition and shall be sufficient if the aggregate number of signatures upon all is not less than the number required by this chapter. Blank lines upon additional sheets securely fastened to a top sheet, having the prescribed heading, may be used in obtaining signatures, and shall be regarded, together with the top sheet having the proper heading, as one paper. The place of residence, business and post office address of a petitioner may be indicated by ditto marks, if they are the same as those last written above his signature.

“Sec. 5074. Verification of Petition. Every person who shall circulate and secure signatures to a petition to initiate or submit to the electors any law under the provisions of section 1, article 3, of the Constitution, shall, before filing said petition with the officer in whose office the same is by law required to be filed, make and attach to the petition an affidavit in the following form, which he shall subscribe and swear to before some officer qualified to administer oaths and having an official seal:

“State of South Dakota, County of _______________, ss.:

_______________, being first duly and solemnly sworn, on my oath state, that I am a qualified voter of the state of South Dakota. That I am acquainted with all the persons whose names are affixed to the above and foregoing paper and know that each one of said persons signed said paper personally and added thereto his place of residence, his business, his post office address and date of signing. That each and all of said persons are residents and qualified electors of the county of state of South Dakota. That each of said persons signed said petition with full knowledge of its contents. That I have received no compensation whatever or promise of compensation for my services in circulating said petition.

“Subscribed and sworn to before me this ____ day of 19___

It is conceded that this petition, to be valid, must contain the signatures of 9,192 electors of this state. Section 5070, supra.

The petition as numbered before being presented to the secretary of state purports to contain 9,736 signatures. Errors in numbering, by repeated numbers, and by signatures not numbered, would increase this total to 9,963. But, on the other hand, by errors in numbering such total is reduced in the sum of 608; that is to say, there are by actual count only 9,355 signatures to the petition.

Further deductions must be made. Ten of the counted signatures are upon a petition for the referendum of Senate Bill 60 (chapter 113, Laws 1927). Two hundred and one signatures should be stricken because of duplicate or triplicate signatures by the same elector. Ninety-nine signatures should be stricken because such signatures are not verified. Section 5074, supra. This reduces the number of signatures to 9,045, which sum is 147 short of the required number.

Among the many other points of objection to the petition raised by plaintiffs there are at least several which merit serious consideration.

One R. O. Richards of Huron caused to be printed and circulated petitions containing the following heading:

“Petition for Referendum.

“We, the undersigned electors of the state of South Dakota, do hereby petition that the act of the Legislature of the state of South Dakota entitled An act entitled,

“An act to improve and stabilize the banking system; to provide for regulation and control of banks and banking, amending the Depositors’ Guaranty Fund Law; providing for the establishment of separate guaranty funds for the several banks for the protection of depositors and creditors: continuing the depositors’ guaranty fund commission; extending to the superintendent of banks and the depositors’ guaranty fund commission enlarged and increased powers of supervision and control over the officers of banks, and the management and administration of banks and fixing the compensation of the members of such commission; and to amend section 9005 of the Revised Code of 1919 as amended by chapter 119, of the Session Laws of 1919; and to amend sections 9009 and 9010 of the Revised Code of 1919; and to amend section 9011 of the Revised Code of 1919 as amended by chapter 122 of the Session Laws of 1919; and to amend section 9015 of the Revised Code of 1919; and to amend section 9016 of the Revised Code of 1919 as amended by chapter 123 of the Session Laws of 1919; and to amend section 9017 and 9018 of...