Palmer v. Broadbent, 7997
| Decision Date | 12 August 1953 |
| Docket Number | No. 7997,7997 |
| Citation | 260 P.2d 581,123 Utah 580 |
| Parties | PALMER et al. v. BROADBENT, Mayor et al. |
| Court | Utah Supreme Court |
Orville Isom, Cedar City, for plaintiffs.
Patrick H. Fenton, Cedar City, for defendants.
Plaintiffs, who with others are sometimes referred to as sponsors and petitioners, are residents and voters of Cedar City, Utah, and they petition this court for an extraordinary writ, 1 requiring the defendants, who are the members of the City Council and the City Recorder, to submit to the voters at the next regular city election, for approval or rejection, an ordinance granting the Southern Utah Power Company a twenty year electric franchise. This ordinance was passed by the City Council on February 19, 1953, and published on the 26th to become effective on March 21, 1953. 2
On March 7th, sixteen days after enactment and fourteen days before the effective date, the sponsors filed a petition with the City Recorder for a referendum to the voters on that ordinance, together with an application for petition copies and circulation sheets to be bound in 15 sections to be printed in legal form. Whereupon the Recorder certified to a true and correct copy of such petition, and that she had received such petition on that day. On March 10th, after waiting the three days allowed by law therefor, the Recorder solicited three printers for bids on that printing job. 3 On that day without waiting for such bids, the sponsors presented to the Recorder the required forms, which had been printed at their expense, with the request that she inspect and approve such forms and sign her name to the printed certificate with her name printed thereon and affix thereto the corporate seal of the City. These forms which were presented to the Recorder are conceded to be correct in every detail except that they were printed in 5 1/2 instead of 6 point type and lacked the certificate of the true and correct number and title of the law as proposed for referendum. 4 They were printed at the same price and by the only printer who submitted a bid for such work to the Recorder. The Recorder refused to execute and record these forms without advice from the City Attorney and Council but did certify that she had received such petition and application and signed a certificate to a copy of the petition presented to her that such is a true and correct copy of the Petition for Referendum, this she retained in her office. Thereupon the sponsors took other copies of the forms submitted to the Recorder, which were bound in 15 sections, and proceeded to circulate them for voters' signatures. On March 11th, the sponsors paid the $10 filing fee for filing the Petition for Referendum, on the 12th, the City Attorney advised the sponsors that the Recorder refused to sign or attach thereto the corporate seal of the City to the forms presented to her, because they had failed to substantially comply with the statute and that all except one copy would be returned to them upon request, which was done on March 15, 1953.
On March 17, 1953, again taking the full ten days allowed therefor, the Recorder notified the sponsors that she had received a bid for the proposed printing, and that upon the payment of the amount of such bid plus 50cents for the circulation sheets she would have the forms prepared for circulation. The statute allowed her 10 more days to accomplish this after receiving the required fee, 5 which would be at least 7 days after the time for filing the Petition for Referendum with the required number of names signed and the County Clerk's certificate attached thereto. 6 Thus, she had it in her power to delay this beyond the time for filing the petition, if she continued as she had previously done to take the full time allowed by law, and thereby defeat the referendum without submitting it to the people.
On March 20th, the day before the effective date of such ordinance, the sponsors took the fifteen sections of the petiton copies which they had circulated with 449 names signed and acknowledged thereon, to the County Clerk of Iron County, Utah, who checked the names against the official registration books of his county. He attached thereto a certificate 'that at the last general election 3122 persons of all parties voted for governor in Cedar City, and that the Petition for Referendum * * * contained 430 names of duly qualified and registered voters.' He also attached thereto another certificate 'that on the 20th day of March, 1953, I received * * * a Petition for Referendum * * *; that I have checked all names appearing on the sections and on each circulation sheet thereof; * * * that I have indicated such names appearing thereon as are registered voters in Cedar City, Utah, by placing before each of such names a check in the column where the name of such registered voter appears; * * * that all the names on said sheets not marked with a check either are not registered voters in Cedar City or are the names concerning which I have some question * * *.' 7 (Italics ours.) The checkmarks were actually placed after the names instead of before as stated in the certificate. These petitions and circulation lists with the attached certificates were on that day taken to the City Recorder who received the same and acknowledged receipt thereof.
Thereafter on March 23rd, she endorsed on these petitions and lists the word 'Insufficient' 8 and attached thereto a certificate '* * * that upon said circulation sheets, duly verified by the County Clerk were the names of O registered voters of Cedar City * * *.' This she justified by the fact that the checkmarks were after instead of before the signatures. Upon this being called to the attention of the county Clerk he made an amended certificate dated March 27, 1953, showing that the checkmarks were placed after the signatures. This was received by the Recorder who acknowledged receipt thereof on March 30, 1953. Thereafter a recount was had but the Recorder refused to change her endorsement from 'Insufficient' to 'Sufficient'.
Plaintiffs contend the facts here shown require the submission of this ordinance to the voters for approval or rejection because, (1) it was the Recorder's duty to accept, record, certify, number and return to the sponsors for circulation, the printed petition copies presented to them on March 10, 1953; (2) that having failed to do her duty, where as here no one could be mislead or injured thereby, the law will presume that what should have been done was done, and thus make effective the Petition for Referendum the same as though these required acts had been done; and (3) that if so treated there were sufficient signers and the County Clerk's certificate was sufficient to require the submission of this ordinance to the voters.
The Recorder should have accepted these printed petition copies which sponsors furnished on March 10th. All of the detailed procedure provided for in the statute for obtaining these printed forms are mere formalities, for as long as the prescribed forms are supplied, who arranged for and the procedure followed in having them printed have no substantial effect on the result. The only purpose of the prescribed procedure is to provide a means whereby the sponsors can obtain the properly printed forms and to save them every possible expense. That they do save expense is doubted for it is not apparent that a small printing job like this can be had for less money through a public official soliciting bids than can be obtained by a private individual through his own private arrangements, who in any event has to pay for it. But this procedure does have the potentiality of consuming twenty days of time which is always in this kind of case sorely needed by the sponsors and in this case an absolute necessity. In this case if the sponsors had followed the prescribed procedure it was within the power of the Recorder to defeat their purpose to obtain this referendum merely by taking all of the prescribed time in obtaining these printed forms allowed under the statute. She was allowed twenty days in which to obtain the forms and the petitions would have to be circulated and signed by the required number of voters, certified by the County Clerk and then filed with the City Recorder within fourteen days after the filing of the original petition. Certainly this long delay was not one of the purposes of the statute for we cannot ascribe to the legislature a purpose to make it next to impossible for the people to obtain the referendum which it provided. So the only purpose of this detailed procedure was for the benefit of the sponsors. It is everywhere recognized that the person for whose benefit a provision is made may waive it when it does not affect the right of others. 9 So in this case the sponsors had a right to waive these provisions and supply these printed forms through their own arrangements and at their own expense, which they had to pay in any event, as long as the forms furnished meet the statutory requirements it was the duty of the Recorder to accept them and proceed as required by law after the forms had been provided. These forms meet all the statutory requirements except in a small difference in the size of the type and a certificate by the recorder that the title and number of the ordinance are stated correctly in the Petition which were not substantial defects. There is no claim that the title and number were not correctly stated in the Petition.
The State Constitution vests in the people the right to legislate directly. 10 The legislature has supplemented this provision by this statute and it is the duty of the courts to so construe the statute so as to make it operative where possible. We have held that the formal requirements of this statute are directory and not mandatory, and that substantial compliance with such provisions is sufficient. 11
The failure of the Recorder to accept these...
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