State ex rel. Ayres v. Amsberry

• Decision Date: 13 March 1920
• Docket Number: 21212
• Citation: 177 N.W. 179,104 Neb. 273
• Parties: STATE, EX REL. FRED C. AYRES ET AL., APPELLANTS, v. DARIUS M. AMSBERRY, SECRETARY OF STATE, APPELLEE
• Court: Nebraska Supreme Court

177 N.W. 179

104 Neb. 273

STATE, EX REL. FRED C. AYRES ET AL., APPELLANTS, v. DARIUS M. AMSBERRY, SECRETARY OF STATE, APPELLEE

No. 21212

Supreme Court of Nebraska

March 13, 1920

APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Reversed, with directions.

REVERSED.

Dexter T. Barrett, for appellants.

Clarence A. Davis, Attorney General, George W. Ayres, J. B. Barnes and Burkett, Wilson, Brown & Wilson, contra.

C. M Skiles and A. G. Wolfenbarger, amici curiae.

CORNISH J. ROSE, J., dissents. LETTON, J., not sitting.

OPINION

CORNISH, J.

Mandamus to compel the secretary of state to file a referendum petition upon Senate File No. 2, enacted at the 1919 session of the legislature, and known as the "Code Bill," which petition the secretary of state refused to file, on the ground that there was not attached to the various sheets or sections of the petition a "full and correct copy" of the enacted law. Relators appeal from a judgment sustaining the secretary.

Section 2335, Rev. St. 1913 (amended, Laws 1919, ch. 86), is in part as follows: "The following shall be substantially the form of petition for ordering the referendum against any act or any part of any act passed by the legislature of the state of Nebraska.

"Petition for Referendum.

"To the Honorable , Secretary of State for the State of Nebraska: We, the undersigned citizens and legal voters of the state of Nebraska and the county of , respectfully order that the Senate (or House) Bill No. entitled (title of act, and if the petition is against less than the whole act then set forth here the part or parts on which the referendum is sought)," etc.

The petition in controversy complied in all respects with this provision of the law, showing title of the act, but did not have attached to it a copy of the law.

Section 2336 gives the form of petition for proposed legislation by initiative. This section requires the proposed law to be set forth in the petition, or attached to it.

Section 2337 provides in part as follows: "Every such sheet for petitioners' signatures shall be attached to a full and correct copy of the title and text of the law or amendment to the Constitution so proposed by the initiative petition; but such petition may be filed with the secretary of state in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not more than twenty signatures on one sheet shall be counted. When any such initiative or referendum petition shall be offered for filing, the secretary of state, in the presence of the governor and the person offering the same for filing, shall detach the sheets containing the signatures and affidavit and cause them all to be attached to one or more printed copies of the measure so proposed by initiative petitions, or of the act or part of an act against which referendum petitions are filed."

Relators cite our opinion in Bartling v. Wait, 96 Neb. 532, 148 N.W. 507, as decisive of the question in dispute. The respondent argues that in that decision section 2335, supra, only was construed. No detailed discussion of the language used in section 2337 is entered into; and it is probably true that some of the questions involved in the proper interpretation of section 2337 were not considered by the court at that time, and that the rule laid down might not come under the doctrine stare decisis. On the other hand, the immediate question was in issue. A purported copy of the act was printed on the petition. It omitted an important word, and it was urged that this made the petition void, because section 2337 required "a full and correct copy of the act proposed" to be printed upon the petition. We held that section 2335 governed, and that section 2337 was inapplicable to referendum petitions. In so holding we, in effect, held that "a correct copy" of the measure need not be attached to referendum petitions.

It is to be observed that to secure intelligent petitioning the need for an attached copy is not at all the same when referring legislation as when initiating it. In the one instance, the voter presumably knows the law and is informed, except in cases where only a portion of the law is being referred, and, if not, can get exact information. In the other, presumptions are to the contrary. This distinction is recognized in the constitutional amendment itself; the section providing for initiative requiring an attached copy of the proposed law, which requirement is omitted from the section providing for a referendum.

Bearing upon the question of the construction of the statute, we have to consider also the language of the initiative and referendum amendment to the Constitution as follows "This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation." Const., art. III, sec. 1D. Under this provision, legislation permissible must be such as frees the operation of the constitutional provisions from obstruction or hindrance. Any legislation which would hamper or render ineffective the power reserved to the people would be unconstitutional. It is urged that a law which requires a 461-page book to be attached to each of 1,472 sheets, circulated for 20 names, is obstructive; that the expense and inconvenience of it would sometimes render practically, if not quite, impossible the reference of measures; that it is an absurd and unnecessary hardship, especially so when it...