State ex rel Jensen v. Wells, 8108
| Decision Date | 13 August 1938 |
| Docket Number | 8108 |
| Citation | 66 S.D. 236,281 N.W. 99 |
| Parties | STATE OF SOUTH DAKOTA ex rel LESLIE JENSEN, Plaintiff, v. GOLDIE WELLS, Defendant. |
| Court | South Dakota Supreme Court |
At the 1937 session of the legislature there was passed an act known as Senate Bill No. 176, which appears as Chapter 223 of the Session Laws of 1937. Thereafter a petition to refer this law to a vote of the people pursuant to the provisions of Sections 5o67 to 5074, inclusive, Rev. Code 1919, was circulated throughout the state. On June 3, 1937, there was delivered to the Secretary of State the petition which had been circulated and which purported to contain the names of 30,416 petitioners. It is stipulated that the number of petitioners necessary to invoke the referendum under the provisions of our Constitution and statutes is 14,696. Plaintiff commenced this original proceeding in this court and contends that more than 15,720 purported signatures appearing on the petition are invalid. Upon the application of the plaintiff this court appointed a referee to take the testimony of witnesses and to transcribe the same. Many month, were spent in the taking of testimony, and the record is one of the most, if not the most, voluminous ever presented to this court. The case is now before us for our determination upon the record made. This being an original proceeding in this court, and the referee having found no facts, it has become necessary for us to pass upon and determine all questions of fact. We will not attempt to state the facts as we have found them as a separate part of this opinion, but will give our determination of the facts in connection with the different questions involved. As will be hereinafter disclosed, very few of the 30,416 signatures appearing upon the fact of this petition have escaped attack by the plaintiff. A considerable portion of this attack has raised questions of fact, and the task of passing upon these facts has necessarily been arduous. Obviously, time and space will not permit a consideration of each individual signature attacked. We have attempted to group and classify the different objections to the petition as made by the plaintiff, and our discussions will of necessity relate itself to these different groups or classes.
The separate sections of the petition are in the form, as follows:
“Petition for Referendum
We, the undersigned, qualified electors of the State of South Dakota, hereby petition and require that the Act of the Legislature of the State of South Dakota, entitled, “An Act to Repeal Section 10 of Chapter III of the Special Session of the Legislature of the State of South Dakota for the Year 1936; to Amend Subsection (c) of Section 19 Thereof; to Amend Subsection (c) (d) (f) (h) and [i] of Section 6 Thereof, and Subsection (g) of Section [11] Thereof; to Repeal Subsection (e) of Section 6 Thereof; to Abolish the Unemployment Compensation Commission of South Dakota; to Create the Office of Unemployment Compensation Commissioner of South Dakota to Administer the ‘Unemployment Compensation Law,’ and Define His Duties; and to Transfer the Functions and Duties of the Director of State Employment Service to the Unemployment Compensation Commissioner,” and known as Senate Bill No. 176, which was passed by the Twenty-Fifth Session of the Legislature of the State of South Dakota on the 5th day of March, A.D., 1937, and approved by the Governor of the State of South Dakota on the 9th day of March, A.D., 1937, 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, before going into effect.
__________________________________________________________
Post Office Date of
Name Residence Business Address Signing
1— .”
Each section is composed of one page and has blank spaces for sixty-three signatures appearing on the front and back of the page. On the back and at the foot of the page appears the verification in the statutory form. See section 5074, RC 1919.
At the outset, we classify plaintiff’s attack upon the petition into two large or main groups: First, the attack upon the verification whereby plaintiff seeks to invalidate the verification appearing upon the different sections of the petition, and thereby nullify all of the names appearing upon such sections in which it is claimed the verifications are invalid; second, the attack upon the individual signatures because of the manner or form of signing.
We consider first the verification. The requirement for the verification of a referendum petition is found in Section 5074 RC 1919, which is as follows:
“Every person who shall circulate and secure signatures to a petition to initiate or submit to the electors any law under the provisions of section 1, article 3, of the constitution, shall, before filing said petition with the officer in whose office the same is by law required to be filed, make and attach to the petition an affidavit in the following form, which he shall subscribe and swear to before some officer qualified to administer oaths and having an official seal:
State of South Dakota, ss.
County of .........
I, ......................... , being first duly and solemnly sworn, on my oath state, that I am a qualified voter of the State of South Dakota. That I am acquainted with all the persons whose names are affixed to the above and foregoing paper and know that each one of said persons signed said paper personally and added thereto his place of residence, his business, his postoffice address and date of signing. That each and all of said persons are residents and qualified electors of the county of.................. . . state of South Dakota. That each of said persons signed said petition with full knowledge of its contents. That I have received no compensation whatever or promise of compensation for my services in circulating said petition.
.......................
“Subscribed and sworn to before me this ..... day of ........................ , 19...
.......................”
The above section of our code was construed in the case of Morford v. Pyle, wherein it was said:
“These various acts, viz., signing the petition, inserting the signer’s residence, his business, his post office address, the date of signing and the verification by the person who circulates the petition, are all placed on the same footing by the Legislature; so that the insertion of these data by the signer and the verification by the circulator are just as important and as much required by the law as the names of the signers themselves. ...
The affidavit required by section 5074 is for the purpose of establishing the genuineness of the signature on the petition. But, if the person who makes the affidavit is not a qualified voter of the state, or if he is not acquainted with all the persons whose names appear on the petition, or if each one of the persons whose names appear on the petition did not personally sign the same and add thereto his place of residence, his business, his post office address, and the date of signing, or if each person whose name appears on the petition is not a resident and qualified voter of the county named in the affidavit, and that each person who placed his name on the petition did so with knowledge of its contents, or if the person who signed the affidavit received any compensation or promise of compensation for his services in circulating the petition, then the affidavit is false—necessarily false—because the law requires him to have personal and actual knowledge of all the facts, and the petition is left without the required affidavit, for a false affidavit is no better than no affidavit at all.”
Plaintiff contends that, giving full effect to the language above quoted from the Morford Case, mere falsity of the affidavit renders it entirely ineffective within the meaning of the statute and destroys the section of the petition to which it is attached. While this court did in the Morford Case refer to the affidavits there involved as being false, we are convinced that it was not the intention to there hold that mere falsity of an affidavit is sufficient to render the affidavit invalid. The court in that case cited with approval the cases of Barkley et al. v. Pool, 103 Neb. 629, 173 N.W. 600; State ex rel. McNary v. Olcott, 62 Or. 277, 125 P. 303; and in each of these cases it was held that the verification must be made fraudulently before it will destroy the section of the petition to which it is attached. In the Oregon case, the court said:
The Nebraska case takes for its support the Oregon case and discloses a situation where several thousand names were fraudulently inserted in the petition. This court in the more recent case of State ex rel. Coon v. Morrison, clearly took the position that it was the holding in the Morford Case that the affidavit must be established as fraudulent before it could be held invalid. Speaking with reference to the Morford Case, it was said in the Coon Case: ...
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