State ex rel. Coon v. Morrison

• Citation: 249 N.W. 318,61 S.D. 339
• Decision Date: 27 June 1933
• Docket Number: 7587.
• Parties: STATE ex rel. COON v. MORRISON, Secretary of State.
• Court: Supreme Court of South Dakota

249 N.W. 318

61 S.D. 339

STATE ex rel. COON v. MORRISON, Secretary of State.

No. 7587.

Supreme Court of South Dakota

June 27, 1933

Original proceeding by the State, on the relation of Claude B. Coon for mandamus to be directed to Myrtle Morrison, as Secretary of State.

Writ granted, with directions.

O'Keeffe & Stephens, of Pierre, for plaintiff.

Walter Conway, Atty. Gen., and T. E. Eastman, J. T. McCullen, Jr. and R. F. Drewry, Asst. Attys. Gen., for defendant.

POLLEY Judge.

The 1933 session of the Legislature enacted a certain law entitled: "An Act Abolishing the Railroad Commission as Now Constituted and Creating the Office of Utility Commissioner; Transferring the Powers and Duties of the Railroad Commission to the Utility Commissioner, and Repealing Sections 9492, 9493, 9494, 9495, 9496, 9497, 9498, 9499, 9500, 9501, 9502, and 9553, and All Acts Amendatory Thereto and All Other Acts or Parts of Acts in Conflict Herewith."

Said law was approved by the Governor on the 4th day of March, and is now chapter 166 of the Session Laws of 1933, and will go into effect on the 1st day of the coming July unless the same is suspended by the referendum petition that is the subject of this action.

On the 1st day of June there was tendered to the defendant, as secretary of state, a certain petition purporting to bear the signatures of 17,018 of the electors of this state asking that the said act of the Legislature "be referred and submitted to a vote of the electors of the State of South Dakota, at the next general election, to be held in the State of South Dakota"; that upon examination of said petition by defendant she refused to file the same in her office.

On the 3rd day of June, A. D. 1933, and after defendant had so refused to file the said petition, the relator above named applied to this court for a peremptory writ of mandamus requiring the said defendant as such secretary of state to accept the said petition and to file the same as a valid referendum petition and submit the said legislative act to a vote of the electors at the next general election.

Upon the filing of such application, an order was issued citing the defendant to show cause why such permanent writ of mandamus should not issue. On the return day named in said order, the defendant appeared and filed her answer, in which she alleges that of the 17,018 names attached to said petition some 5,463 of said signatures were not entitled to be counted or considered as petitioners on the said petition. This contention is based upon the fact, among others, that appearing upon said petition are the names of divers and sundry persons, amounting in all to several hundred, who had not added to their signatures, their places of residence, their business, their post office address, and the date of signing said petition, as required by the provisions of section 5067, Rev. Code 1919.

Whether the names questioned under this part of the answer should be rejected, it is not necessary to determine. The total number of names on the petition is 17,018. The number of signers required on said petition is 14,206. This leaves a surplus of 2,812, so that, if all the names questioned as above were rejected, there would still be many more than the required number of names on said petition.

For her defense the defendant relies principally upon the following facts and circumstances, which must be stated in order to understand the various allegations of the answer; keeping in mind that the "petition shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality." See section 5073, Rev Code 1919.

The petition is composed of many sections, circulated by different persons in different parts of the state. Each of such sections is headed by the petition required by section 5067, Rev. Code 1919, and has attached thereto the affidavit of the person who secured the signatures thereon as required by section 5074, Rev. Code 1919. These sections were then collected and assembled--each section was given a number, and all of them were fastened together into one completed petition containing 274 sections, each section being numbered consecutively from 1 to 274. The answer is too long to be set out in full, but the following paragraph is typical of the many paragraphs contained in the answer:

"6. That on Petition No. 17 bearing the purported signatures of one hundred thirty-eight (138) persons, one R. W. Gilmore, the alleged circulator thereof, made sworn affidavit thereon that each of said signers were residents and qualified electors of the County of Pennington in South Dakota, whereas one of said signers, M. J. McClellan, who signed said petition on line 6 thereof, was a resident of the town of Kennebec, as appears from said petition, and that the said town of Kennebec is not in Pennington County but is in the County of Lyman; that another of said signers, M. A. Sundown, who signed said petition on line 127 thereof was a resident of the town of Wood, as appears from said petition, and that said town of Wood is not in Pennington County, but is in the County of Mellette; that another of said signers, whose name is not legible but who signed said petition on line 126 thereof was a resident of the town of St. Francis, as appears from said petition, and that the said town of St. Francis is not in Pennington County but is in Todd County; that another of said signers, W. P. Haley, who signed said petition on line 139 thereof was a resident of the city of Huron, as appears from said petition, and that the city of Huron is not in Pennington County but is in the County of Beadle. That thereby said affidavit was false and untrue, and knowingly so,

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