People ex rel. Arfman v. Newell

• Decision Date: 05 July 1910
• Citation: 113 P. 643,49 Colo. 349
• Parties: PEOPLE ex rel. ARFMAN v. NEWELL.
• Court: Colorado Supreme Court

113 P. 643

49 Colo. 349

PEOPLE ex rel. ARFMAN v. NEWELL.

Supreme Court of Colorado, En Banc.

July 5, 1910

Rehearing Denied Feb. 6, 1911.

Error to District Court, Boulder County; Harry P. Gamble, Judge.

Certiorari by the People, on the relation of John Arfman, against Olney Newell, substituted for U. G. Kerr, as clerk of the county of Boulder. From a judgment for defendant, relator brings error. Affirmed.

Ernest Morris, for plaintiff in error.

Halsted L. Ritter and Hamlet J. Barry, for defendant in error.

WHITE J.

Defendant in error is the county clerk and recorder of Boulder county. September 29, 1908, there was filed in his office a petition to have submitted to the qualified voters of precinct 24 in that county, at the November election next ensuing, the question whether the precinct should become 'anti-saloon territory' under the 'Local Option Act' of 1907. Laws 1907, c. 198. The county clerk approved, and accepted the petition, and was about to place the proposition upon the ballot when John Arfman, as relator, made application to the district court for a writ of certiorari, directed to the county clerk, to review his action in approving, and to prohibit him from accepting, and acting upon, the petition. The reasons alleged in the complaint why the county clerk should be prohibited from receiving the petition and acting thereon were: (1) That a portion of the territory embraced in precinct 24, to wit, the town of North Longmont, a municipal corporation, had at a town election held therein in April 1908, voted not to become anti-saloon territory, and 23 months had not elapsed since such vote; (2) that in the petition 'no residence addresses are written opposite any of the names contained therein, and that none of the names purported to be signed to said petition are valid, and none thereof should be counted * * * in considering said petition'; (3) that the petition 'fails to state a number of dates when some of the purported signers signed' the same. The writ was granted, and a return thereto made. Upon consideration the court dismissed the application, and entered final judgment against plaintiff. The relator prosecutes this writ of error to have the action of the trial court reversed.

1. Section 4102, Rev. St. 1908, provides, in substance, that when the electors of any political subdivision of the state determine by popular vote whether a given political subdivision shall become anti-saloon territory, or having, by such vote, reversed its decision creating anti-saloon territory, the vote thereon 'shall be a bar to the submission to the voters thereof of either of such propositions as applied to that identical political subdivision or district only, until after the lapse of twenty-three months.' By virtue of this provision it is contended that the election in April, 1908, precluded the voters of the town of North Longmont from voting upon the proposition at the November election following notwithstanding precinct 24 is one political subdivision and the town of North Longmont quite another, although included in the former. The question is not debatable. The principle has been determined contrary to the contention of plaintiff in error. In Schwartz v. People, 46 Colo. 239, 281, 104 P. 92, we expressly held that, though a precinct in a given ward may refuse to become anti-saloon territory, the ward of which the precinct is a part may nevertheless immediately thereafter, without reference to the 23 months' limitation, vote upon the question of becoming anti-saloon territory, and, if the vote be in the affirmative, the 'ward thereupon becomes anti-saloon territory throughout its entire extent, covering the included precinct, because it is expressly provided that, when any subdivision votes to become anti-saloon territory, it becomes wholly so.' We now hold that notwithstanding the town of North Longmont refused in April, 1908, to become anti-saloon territory, precinct 24, of which the municipality is a part, had the legal right, if properly initiated, to vote at the election in November following upon the question of becoming anti-saloon territory. Under the facts of this case, the 23 months' limitation has no application. The voters of a distinct political district, though it contains all, or a part, of a lesser political subdivision, or is a part of a greater one, are in no sense the voters of identical political subdivisions.

2. Section 4096, Rev. St. 1908, declares that a petition for submission of the proposition to create anti-saloon territory 'shall be substantially in' a certain given form. In the prescribed form following the body thereof appears the headings: 'Name of Signer ..... Street Number ... Date of Signing .. ....' In the petition before us, under the heading, 'Street Number,' and opposite the first name on the petition, appears a number followed by a name, to wit: '533 Pratt.' In the same column, and opposite other names, appear ditto marks, also other numbers, and names, beneath which, and opposite signature names, appear ditto marks. In this column and opposite other signature names also appear in some instances the abbreviation 'Sec.' or the word 'Section' with a number written thereafter. Section 4096, supra, requires, among other things, that the petition be signed by qualified electors in their own proper persons only, and opposite the signatures of each one his residence address shall be written, and the date of signing the same, and that no signatures shall be valid or be counted in considering such petition, unless these requirements are complied with. The section further requires that in cities having a population of over 10,000 the street and number of such residence shall be written, and it is said that, as no city is involved having over 10,000 inhabitants, the street and number, if it be assumed that the figures and words appearing in the petition in question are such, are entirely unessential, are mere surplusage, and should not have been written opposite the respective names. It is therefore contended that, since no name of any city, town, village, post office, or of any county or state is written opposite any signature upon the petition, the same contains no residence addresses, and is therefore fatally defective and void. If we eliminate the figures and words appearing under the heading 'Street Number,' or exclude the ditto marks under the heading as not constituting a residence address within the meaning of the section, the petition is wholly insufficient, and the county clerk was without authority to order an election, and none could be legally held. 23 Cyc. 95. In considering this matter it is essential to keep in mind the purpose of the law in requiring the residence address to be written opposite each name, and likewise the fact that the petition must be considered as a whole, and that the form thereof is prescribed by the section. The purpose of the law in requiring the residence address to be written opposite each name is to enable one desiring to question the sufficiency of the petition to readily ascertain whether the signer actually lives at the address given, and thus to prevent fraud. A material distinction may exist between one's post office address and his residence address. The former is where he receives his mail; the latter where he resides. The residence address may be, 'The Elms,' 'Wolhurst,' 'Sagamore Hill,' '533 Pratt,' or any term one may select and use for that purpose. The petition under consideration shows prima facie that certain qualified electors signed their names, and wrote after their names in a certain column designated 'Street Number' certain figures and words, or a word or words followed by figures. Nowhere upon the prescribed form of the petition, except in the body thereof, does it appear necessary to write either the name of the precinct, the city, town, post office, county, or state. It is true that in the addresses written in the petition street and numbers are required only in cities having a population of over 10,000, yet the law does not, in any case, prohibit their use, and the prescribed form of the petition seems to authorize their use in all cases. Under these circumstances, we cannot assume that their use in the petition in question is surplusage. We cannot take judicial notice of what constitutes a correct residence address. Under the circumstances of this case we must take the petition, examine it, and determine therefrom under the law whether it is sufficient. The law requires that at the bottom of the petition shall be appended an affidavit, signed and sworn to by a qualified elector of the subdivision in which the signer thereof resides, stating that the signatures on the petition are genuine; that to the best knowledge and belief of the affiant the persons so signing were at the time of signing the petition qualified electors of the political subdivision in which the vote is to be taken; that their respective residences are correctly stated in the petition; and that each signer signed the same on the date set opposite his name. The act also declares that any person willfully and corruptly swearing falsely to such statement shall be guilty of perjury.

Bearing in mind these provisions of the law, and directing our attention to the petition, it appears therefrom that it is in exact form prescribed by law; that there are a sufficient number of names thereon; that there is opposite the name of each signer, in the column prescribed for that purpose, what purports to be a residence address, or, at least, ditto marks under such address. The body of the petition clearly shows that precinct 24 is situated in the county of Boulder, and state of Colorado; that each of the persons signing the petition reside in that particular...