State ex rel. McNary v. Olcott
Decision Date | 23 July 1912 |
Citation | 62 Or. 277,125 P. 303 |
Parties | STATE ex rel. McNARY, Dist. Atty., v. OLCOTT, Secretary of State. |
Court | Oregon Supreme Court |
Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.
Action by the State, on the relation of John H. McNary, District Attorney of the Third Judicial District, against Ben W Olcott, as Secretary of State. From the judgment, defendant appeals. Reversed, and suit dismissed.
W.S. U'Ren, of Oregon City, C.E.S. Wood, of Portland, and A.M. Crawford, of Salem, for appellant.
W.T Slater, of Salem, and M.L. Pipes, of Portland, for respondent.
This is a suit brought by the state of Oregon, on the relation of John H. McNary, against Ben W. Olcott, secretary of state, to enjoin the defendant from placing upon the ballot a referendum upon an appropriation for the benefit of the State University.
The facts set forth in the complaint are substantially the same as alleged in Friendly v. Olcott, 123 P. 53, and need not be restated here. In that case we held that a private citizen could not bring a suit of this character, and dismissed the suit; and thereafter this suit was instituted upon the relation of the district attorney of the Third Judicial district, having for its object the same relief that was sought in the former proceeding. We regard it as settled by our former opinion that the right to bring a suit to enjoin the secretary from certifying or printing upon the official ballot the title or number of any measure, when it is shown to be not legally sufficient, resides in the district attorney, and we will not further discuss that phase of the case.
Section 3474, L. O.L., provides that, "on a showing that any petition filed is not legally sufficient, the court may enjoin the secretary of state and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure." On behalf of defendant it is contended that, by the words "legally sufficient," as here used, it is meant that the petition shall be regular upon its face, and that if a petition, regular upon its face, shall be presented, the court cannot go behind its apparent regularity to inquire into its genuineness. We cannot assent to this view. It is conceded that there is no power granted to the secretary of state to call witnesses and examine into the facts to determine the validity of any petition. His powers are not judicial, but ministerial; and if this power does not reside in the courts a petition, consisting wholly of forged names, can be presented, and the public put to the expense of printing the measure and submitting it to a vote. This would be giving a forced and unnatural construction of the law in favor of fraud. The Legislature never contemplated such a vicious construction. We are of the opinion that by the term "legally sufficient" the Legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law.
It is also contended that the filing of the petition is a legislative act, and consequently beyond the jurisdiction of the courts to investigate; but this contention is also unsound. The signing and filing of a petition is a matter preliminary to the legislative act. It is that which calls the legislative power into action. It is more a legislative act than the placing of a candidate's name for the state Legislature upon the ballot is a legislative act. If the candidate for legislative honors presents a petition, signed by the required number of legal voters, and in other respects complying with the law, his name is entitled to go upon the ballot. If the partisan of a referendum measure presents a like petition, the measure is entitled to go upon the ballot. Any other construction would place it in the power of one dishonest person, or a number of such, to hold up and delay any measure, no matter how meritorious, by means of a fraudulent petition. By this means the whole machinery of the state government could be held up. The courts, the asylums, the penitentiaries, the various state institutions, could be deprived of the means necessary to sustain their existence by the fraudulent act of one or a few persons. Such is not the law.
The question of jurisdiction being settled, we now come to the principal questions that constitute the gist of this controversy:
(1) Are the petitions in such form as to substantially comply with sections 3471, 3472, and 3473, L. O.L.? Such sections, so far as they relate to the matter now under consideration, are as follows:
"The forms herein given are not mandatory and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors."
(2) Does the petition contain a sufficient number of genuine signatures of legal voters to entitle the petitioners to have the measure placed upon the ballot?
The sections above cited prescribe the form of petition and the method by which a copy of the measure, with its title, shall be attached; but it is especially provided that such forms "are not mandatory and if substantially followed in any petition it shall be sufficient."
Section 3470, L. O.L., prescribes the form of a referendum petition. Section...
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