State ex rel. Graham v. Board of Examiners, 9094

• Citation: 239 P.2d 283,125 Mont. 419
• Decision Date: 03 January 1952
• Docket Number: No. 9094,9094
• Parties: STATE ex rel. GRAHAM et al. v. BOARD OF EXAMINERS et al.
• Court: United States State Supreme Court of Montana

Page 283

239 P.2d 283

125 Mont. 419

STATE ex rel. GRAHAM et al. v. BOARD OF EXAMINERS et al.

No. 9094.

Supreme Court of Montana.

Submitted Nov. 15, 1951.

Decided Jan. 3, 1952.

Sam D. Goza, Helena, for appellants.

Arnold H. Olsen, Atty. Gen., Thomas F. Joyce, Louis E. Poppler, Asst. Attys. Gen., for respondents.

METCALF, Justice.

At the general election on November 7, 1950, the people of Montana voted for Initiative Measure No. 54, Laws 1951, p. 781, and after the canvass of the votes the Governor of Montana proclaimed it a law of the state.

As passed by the people under their reserved power of initiative, the Act provides that: 'In recognition and appreciation of the valor and devotion of the men and women who, by their military service, carried out and discharged the obligation of the State of Montana to contribute of its manpower to the defense of this republic in World War II, and in partial adjustment for the economic detriment suffered by them by reason of their service, the State of Montana hereby grants, and there shall be paid to, each resident of Montana who was in military service as a member of any branch of the military forces of the United States at sometime during World War II an honorarium, or adjusted compensation, of the sum of ten dollars ($10.00) for each month and major fraction of a month of such service within the continental limits of the United States, and the sum of fifteen dollars ($15.00) for each month and major fraction of a month of such service outside the continental limits of the United States'.

To carry out the administrative details of the distribution of the honorarium, the Act defines various terms used therein; provides the procedure for applying for the honorarium; and authorizes the state board of examiners to adopt necessary rules and regulations for handling applications for the payment of the honorarium.

To raise the funds necessary to pay the honorarium, the Act authorizes the state board of examiners to issue bonds in the sum of 22 million dollars. These bonds 'shall distinctly state that they are not and shall never be or become a general obligation of the State of Montana, but shall be payable only from the proceeds of a cigarette tax in the manner in this law provided; shall contain the pledge of the State of Montana to continue to levy and collect the cigarette tax in this law provided for and place the proceeds thereof in the war veterans' compensation bond retirement fund, until all bonds issued hereunder, and the interest accruing thereon, shall have been paid * * *.'

The revenue for the retirement of the bonds is to be raised by increasing the tax on cigarettes an additional two cents on each package of 20 cigarettes, which tax is to be collected at the same time and in the same manner as the tax originally levied and imposed by Chapter 289, Laws of 1947, Sec. 84-5606. The income from this additional tax is to be placed in a special fund known as the war veterans' compensation retirement fund, and shall be kept segregated from all other funds in the state treasury and shall be available solely for the payment of the bonds.

On January 4, 1951, the state board of examiners met and passed a resolution providing for the issuance of limited obligation bonds in the amount of $15,000,000 of the authorized $22,000,000. On February 10, 1951, the appellants, taxpayers and cigarette smokers, filed this action in the district court of Lewis and Clark county and obtained a temporary restraining order restraining the sale of the bonds proposed to be issued in accordance with the resolution of the state board of examiners of January 4, 1951.

The attorney general appeared on behalf of the state board of examiners in the district court and interposed a general demurrer to the appellants' complaint. On April 6, 1951, the district court of Lewis and Clark county dissolved the temporary restraining order and sustained the demurrer. This appeal is from the judgment issued dismissing the complaint with prejudice.

The complaint sets forth two causes of action. The objections in the first cause of action are all directed against alleged defects in the petitions and irregularities in placing the measure on the ballot and voting thereon. Inasmuch as the action is before us on demurrer the allegations charging irregularities and defects in the petition are admitted and the question is whether these preliminary defects are without force or effect because of the subsequent election or the Act is nullified by such irregularities.

The initiative petition was filed in sections in the office of the secretary of state between May 25, 1950, and July 5, 1950. On the 7th day of July 1950 the secretary of state notified the governor of Montana that a proposed petition for initiative had been filed in his office and certified that the petition contained a sufficient number of genuine signatures to entitle the measure to be placed upon the ballot and voted upon at the general election on November 7, 1950.

On July 27, 1950, in compliance with R.C.M.1947, Sec. 37-104, the governor issued a proclamation which announced that the petition had been filed and briefly stated its tenor and effect. This proclamation was published four times in newspapers throughout the state in accordance with the provisions of the statute.

On July 10, 1950, the attorney general submitted to the secretary of state a form of ballot to be used for the proposed initiative measure. On August 16, 1950, the secretary of state certified the general election ballot to the county clerks and recorders of the various counties including thereon the initiative measure which he had designated Initiative Measure No. 54.

At the election on November 7, 1950, 108,251 voters cast their ballots in favor of Initiative Measure No. 54, and 75,411 against it.

The appellants contend the petition was insufficient in the following respects:

1. Certificates of county clerks and recorders which fail substantially to comply with the requirements of R.C.M.1947, Sec. 37-103.

2. One hundred forty-nine signatures not certified in any manner which were counted by the secretary of state in arriving at the total number of valid signatures.

3. Signatures lacking identifying addresses or precinct numbers or some part of the required information.

4. Two hundred seventy-one signatures on sheets entitled 'Registered Voters in Favor of Veterans' Honorarium' not attached to a full and correct copy of the title and text of Initiative Measure No. 54.

5. Counting as genuine, signatures of persons giving as their places of residence locations outside the state of Montana.

The appellants also complain that the secretary of state counted forged signatures, illegible signatures, and signatures where the balance of the information required by section 37-103 was in different handwriting or typed in.

The latter defects could not be determined from the face of the petition. The secretary of state cannot determine whether a signature is forged or not. The same is true of the fifth objection above; there are registered voters in this state whose addresses are outside the state--for example, men in armed forces or in public service. The county clerk and recorder knows them and certifies their signatures and the secretary of state is bound thereby.

The statute, R.C.M. 1947, Sec. 37-103, sets out the form of certification. The county clerk by this form certifies: '* * * I believe that the signatures of (names of signers) numbering (mumber of genuine signatures), are genuine. As to the remainder of the signatures thereon, I believe that they are not genuine, for the reason that ........; and I further certify that ........ the following names (........) do not appear on the registration books and blanks in my office.'

Strict compliance with this form would require the county clerk to copy the name of every signer of the petition in the body of the certificate. Many county clerks have adopted the practice of marking the genuine signatures with an identifying symbol and the names of signers that do not appear on the registration books with a different symbol. Then in certifying the petition to the secretary of state, instead of putting all the names of the signers in the body of the certificate, the certificate reads: 'I certify that the signatures of [number] signers are genuine and are marked thus on the petition ....., and I further certify that [number] signers marked thus in the petition ..... do not appear on the registration books and blanks in my office.'

Most of the petitions were so certified to the secretary of state and he counted the signatures certified in this manner as genuine. This is sufficient compliance with the statute. The only purpose of listing the names is so that anyone wishing to challenge the sufficiency of the petition can identify the names of the registered voters whose signatures were accepted and certified by the county clerk and the names of those rejected. This can be done in the present petition by an examination of the identifying symbols.

The same is true of the insertion of identifying addresses or precinct numbers. It is only necessary that the identity of the signer be sufficiently clear so that the county clerk can locate his registration for the purpose of certification. If the identifying information is supplied by someone else or written in by the person circulating the petition, it serves the same purpose as if the signer had himself written it. The essential item is that the petition be signed by a registered elector and the county clerk be enabled to identify the person signing as the same person whose name appears on his registration books.

As for the 271 signatures not attached to a full and correct copy of the title and text of the measure, there is no allegation that the sheets on which the signatures appeared were not properly attached at the time they were signed. That is the crucial time. I...