People ex rel. Wright v. Kelly

• Decision Date: 06 September 1940
• Docket Number: Motion No. 447.
• Citation: 294 Mich. 503,293 N.W. 865
• Parties: PEOPLE ex rel. WRIGHT et al. v. KELLY, Secretary of State.
• Court: Michigan Supreme Court

294 Mich. 503

293 N.W. 865

PEOPLE ex rel. WRIGHT et al.

v.KELLY, Secretary of State. ^*

Motion No. 447.

Supreme Court of Michigan.

Sept. 6, 1940.

Mandamus proceeding by the People of the State of Michigan, on the relation of Clarence J. Wright, Otha E. Getts, and the Michigan State Dental Society, a nonprofit corporation, against Harry F. Kelly, Secretary of State of the State of Michigan, to compel the respondent, on his refusal to refrain from certifying a certain act for referendum, to make a recanvass.

Petition for mandamus denied.

Argued before the Entire Bench.

Clark, Klein, Brucker & Waples, of Detroit, for petitioners.

Thomas Read, Atty. Gen., and Edmund E. Shepherd and Andrew De Maggio, Asst. Attys. Gen., for respondent.

POTTER, Justice.

Act No. 122, Pub.Acts 1939, known as the ‘State Dental Act,’ was passed by the 1939 session of the legislature and approved by the governor May 19, 1939. The act sets forth certain minimum requirements for the practice of dentistry and establishes a State board of dentistry with power to adopt further rules and standards for the regulation of the profession. In accordance with the Constitution (1908), art. 5, § 1, this law became effective ‘ninety days after the final adjournment of the session of the legislature which passed such act,’ or September 29, 1939. After the passage of the act, but before it became effective, certain petitions were circulated under article 5, § 1, of the Constitution, to require the secretary of state to submit the law for approval or rejection at the general election November 5, 1940.

It is undisputed that 80,262 valid signatures were required in order to meet the constitutional requirements and that 97,942 signatures were actually procured, 91,473 of which were from Wayne county. The signatures were submitted in several sections. Each section consisted of seven pages of paper stapled together at the top. On the first page was printed the section number, the petition, and part of Act No. 122, Pub.Acts 1939; on the second, third and fourth sheets was printed the balance of the act; on the fifth and sixth sheets were printed lines for forty signatures; and on the seventh sheet were printed lines for twenty signatures and the affidavit of the circulator. The county clerk of Wayne county submitted the signatures from Wayne county in three bundles tied together with a cord, each bundle containing several sections of petitions. Only the top section in each of the three bundles had any date of filing stamped thereon by the county clerk, though a letter of transmittal from the county clerk to the secretary of state stated that all sections of the petitions were submitted to him on the same date. After the sections of petitions had been delivered to the secretary of state, petitioners caused an exhaustive investigation to be made thereof as a result of which petitioners claim there is evidence of wholesale irregularities and gross fraud. It is stated by petitioners that, of the 97,942 signatures procured, less than 25,000 are valid signatures.

Upon respondent's refusal to refrain from certifying Act No. 122, Pub.Acts 1939, for referendum, petitioners filed application for mandamus to compel respondent secretary of state to make a recanvass in accordance with petitioners' claims. Petitioners claim respondent should reject:

(1) All sections of the petition which do not have stamped on the face thereof the date of filing with the county clerk;

(2) Each page of signatures of each section of petitions, viz: peges 5 and 6, which do not contain the circulator's affidavit; (3) All names (a) where the purported signature of the alleged qualified voter is illegible and not capable of translation; (b) where an illegible marking has been supplied for either the place of residence, the ward, or precinct number of the alleged qualified voter; (c) where only the given name or the surname appears; (d) where the surname is preceded by an initial and not the full given name; (e) where the signature is printed and not written; (f) where a man's name appears with the prefix ‘Mrs.;’ (g) where the same signature appears twice or more on the same or several sections of petitions;

(4) All names where the place of residence, or street number, or ward, or precinct does not appear upon the face of the petition;

(5) All names where no such street, or street number, or ward, or precinct in fact exists;

(6) All names where the handwriting is so similar that obviously the same person wrote all the names, or places of residence, or wards, or precincts.

Respondent claims (1) the filing of the sections of petitions as required by the Constitution does not demand that the sections actually be dated, but only that they shall be turned over to the county clerk at the same time; (2) it is sufficient if the circulator's affidavit appears at the end of each section of petitions, rather than at the end of each sheet of signatures; (3) the secretary of state's duties are ministerial and he has no power to reject signatures because of apparent similarities in handwriting nor to conduct an investigation to ascertain whether the street, the street number, the ward, or precinct in fact exists. Respondent prays that, if a recanvass should be ordered, this court indicate the rules by which it should be conducted.

Article 5, § 1, became a part of the Constitution in April, 1913. In so far as material to the present case, it provides:

‘The second power reserved to the people is the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act * * *.

‘Upon presentation to the secretary of state witnin ninety days after the final adjournment of the legislature, of a petition certified to as herein provided, as having been signed by qualified electors equal in number to five per cent of the total vote cast for all candidates for governor at the last election at which a governor was elected, asking that any act, section or part of any act of the legislature, be submitted to the electors for approval or rejection, the secretary of state, after canvassing such petition as above required, and the same is found to be signed by the requisite number of electors, shall submit to the electors for approval or rejection such act or section or part of any act at the next succeeding general election; and no such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon. * * *

‘Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure. Each signer thereto shall add to his signature, his place of residence, street and number in cities having street numbers, and his election precinct. Any qualified elector of the state shall be competent to solicit such signatures within the county in which he is an elector. Each section of the petition shall bear the name of the county or city in which it is circulated, and only qualified electors of such county or city shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence, that each signature to the section is the genuine signature of the person signing the same, and no other affidavit thereto shall be required. Such petitions so verified shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors.

‘Each section of the petition shall be filed with the clerk of the county in which it was circulated, but all said sections circulated in any county shall be filed at the same time. Within twenty days after the filing of such petition in his office, the said clerk shall forward said petition to the secretary of state. Within forth days from the transmission of the said petition to the secretary of state, a supplemental petition identical with the original as to the body of the petition but containing supplemental names, may be filed with the county clerk, and such supplemental petition shall be forwarded to the secretary of state by said clerk within ten days after the filing of the same.’

Referendum provisions have been adopted in 21 jurisdictions.¹ These amendments have met with varying success in practical operation. 43 Harvard Law Rev. p. 813 (note); Oberholtzer, ‘The Referendum in America.’ Many jurisdictions interpret referendum provisions liberally, holding that the referendum is an exercise of powers reserved to the people. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775;State ex rel. Carson v. Kozer, 108 Or. 550, 217 P. 827;Wood v. Byrne, 60 N.D. 1, 232 N.W. 303;Ford v. Mitchell, 103 Mont. 99, 61 P.2d 815; State ex rel. Howell v. Superior Court, 97 Wash. 569, 166 P. 1126. Other jurisdictions, including Michigan, have seen in the referendum a concession to an organized minority and a limitation upon the rights of the people. Ferle v. Parsons, 210 Mich. 150, 177 N.W. 397;Ohio Valley Electric Ry. Co. v. Hagerty, 14 Ohio App. 398. See, also, Ley v. Dominguez, 212 Cal. 587, 299 P. 713.

We take up the issues raised by petitioners:

1. It is not necessary that each section of the petition shall have stamped on the face thereof the date of filing with the county clerk. The Constitution does not demand that the petition be dated. It prescribes only that the petitions shall be ‘filed at the same time.’

‘It is suggested in a brief amicus curiae that the petitions had not been filed at all, inasmuch as the secretary of state had refused to mark them as filed. We do not concur in this view. It is settled law that while it is proper for an officer whose duty it is to receive and file an instrument in writing to indorse thereon the date of filing when h...