State ex rel. Postlethwait v. Clark

• Decision Date: 31 May 1933
• Citation: 143 Or. 482,22 P.2d 900
• Parties: STATE ex rel. POSTLETHWAIT v. CLARK, City Clerk.
• Court: Oregon Supreme Court

22 P.2d 900

143 Or. 482

STATE ex rel. POSTLETHWAIT v. CLARK, City Clerk.

Supreme Court of Oregon

May 31, 1933

Department 2.

Appeal from Circuit Court, Baker County; C. H. McColloch, Judge.

Action by the State, on the relation of B. D. Postlethwait, against Walter A. Clark, Clerk of the City of Baker. From an adverse judgment, defendant appeals.

Reversed and remanded, with instructions.

Blaine Hallock and James T. Donald, both of Baker (Hallock, Donald & Banta, of Baker, on the brief), for appellant.

O. B Mount, of Baker (Manley Strayer, Dist. Atty., of Baker, on the brief), for respondent.

CAMPBELL Justice.

On September 2, 1932, there was presented to and accepted by the city clerk of the city of Baker a petition purported to be signed by 680 legal voters of said city, demanding the recall of Bert L. Harvey, the mayor.

The mayor was notified on September 2, 1932, that said recall petition was presented to, and in the hands of, the city clerk. The mayor refused to resign within 5 days thereafter or at all. The city clerk refused to call an election, and plaintiff filed the petition in the instant action asking for a writ of mandamus to compel the city clerk to call said election.

An alternative writ was issued commanding the city clerk to call a special election or show cause why he did not.

To the petition for the writ, defendant filed an answer in which he in effect, alleges that he received the recall petition on September 2, 1932, but that he refused to file it until he made, what he considered, the necessary investigation; that one of the signers of the petition filed an affidavit with him, informing him of false statements and false representations in connection with the circulating of the petition; that, upon receipt of the recall petition, he began checking and verifying it, and, while so working and before he finished checking and before taking any other action in the matter, he was requested in writing by 105 of said petitioners to remove their names from said recall petition.

Defendant further alleges, in substance, that he checked the names on the recall petition with the registration cards in the county clerk's office and that 95 of the signers thereon did not appear to be registered voters on September 2, 1932; that, on checking the names on the recall petition with the registration in the county clerk's office of Baker county, he was unable to identify 94 names as being the same as were registered; that upon checking the official registration cards with the poll books for the different elections held since November, 1928, he found that 171 persons who signed said recall petition had not voted at an election between the election of 1928 and November 30, 1930 in addition to the 95 who had not been registered; that he was informed, during the time he was checking the petition, that some of the verifications were improperly made, and that he proceeded to make a general investigation of all things connected with the circulation and signing of the recall petition, and that, when he completed this investigation, he was of the opinion that there was less than 498 legal voters, whose names were signed to said recall petition; that therefore the petition was and is insufficient to justify or require the calling of an election thereon.

All the new matter set up in the answer is denied in the reply.

The cause was tried to the court who made findings in favor of plaintiff and entered a judgment ordering a peremptory writ to issue. Defendant appeals.

The pleadings present mostly questions of law.

1. Defendant contends that, at the time the recall petition was presented to him, the preceding election for justice of the Supreme Court was the primary nominating election of May 1932, and the vote on which the required number of names on the recall petition should be based was the highest number of votes cast for the nomination of candidates for justice of the Supreme Court in said election, to wit, 2,177.

Within the boundary of said city of Baker, at the regular general biennial election of November, 1930, the highest number of votes cast for the office of justice of the Supreme Court was 1,991.

The recall amendment to the Constitution, as adopted at the regular general biennial election of November, 1926, is as follows: "Every public officer in Oregon is subject, as herein provided, to recall by the legal voters of the state or of the electoral district from which he is elected. There may be required 25 per cent, but not more, of the number of electors who voted in his district at the preceding election for justice of the supreme court to file their petition demanding his recall by the people. They shall set forth in said petition the reasons for said demand. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy shall be filled as may be provided by law. If he shall not resign within five days after the petition is filed, a special election shall be ordered to be held within twenty days in his said electoral district to determine whether the people will recall said officer. ***" Constitution of Oregon, Art. 2, § 18, Oregon Code 1930, p. 93.

This is verbatim with the original recall amendment adopted at the regular general biennial election held June 1, 1908. See Laws 1909, p. 9.

In voting upon this amendment, electors would have in mind the elections provided by law at the time the original recall amendment was adopted. Laws 1905, p. 9. At that time, the law provided for a "regular general biennial election" and for an election known as the "primary nominating election, for the purpose of choosing candidates by the political parties, subject to the provisions of this law." The law (Oregon Code 1930, § 36-401) under which a primary nominating election is held defines what constitutes a political party, and excludes from voting at such primary election all persons who are not registered as a member of a political party as therein defined. Oregon Code 1930, § 36-608. In practice, this excluded all voters from voting at a primary nominating election who were not registered either as Republican or Democrat; those being the only political parties within the legal definition in this state. In effect, it provided for a separate election for each of said parties, with the same election officers, but with separate ballots and separate returns. The people, when voting on the recall amendment, could not have intended to base the number of signers for a recall petition on the vote cast at such a primary election when none but the voters of political parties were voting only for candidates of such political ; parties for the several offices, including that of justice of the Supreme Court.

At present, justices of the Supreme Court are elected on what is known as a nonpartisan judiciary ballot, separate from the general ballot at both the primary nominating and regular general biennial elections. Oregon Laws 1931, p. 607. We are of the opinion that what was desired by the people, when the recall amendment was adopted, as a basis for the number of signatures necessary for a recall petition, was the vote cast for candidates for that office for which the largest number of voters usually expressed a choice. This, experience showed, was the vote cast for justice of the Supreme Court at the regular general biennial election. Experience teaches that not many voters, outside of those belonging to a political party, will vote at a primary nominating election merely for the nomination of candidates for the office of justice of the Supreme Court. At the regular general biennial election, all voters are interested in all the candidates for the several offices, regardless of their political affiliations, and therefore a much greater number of voters participate therein.

The "preceding election for justice of the supreme court" means an election at which a justice of the Supreme Court was elected; not one in which only candidates for that office were nominated. Thus, the required number of voters for the recall of the mayor of Baker would be 25 per cent. of 1,991, the number of votes cast for justice of the Supreme Court at the regular general election in November, 1930.

2. The defendant next contends that the court should have stricken from the recall petition the names of all persons who requested that their names be withdrawn.

An elector signs a recall petition with the full knowledge of its purpose, and, when he has placed his signature upon such a petition, he has performed an important duty of citizenship, and, when that petition passes into the hands of him whose duty it is to act thereon, it should no longer be subject to the whim or weak will of the signer. The presentation of the recall petition to the city clerk placed upon that official the duty to examine it and, if necessary, check with the registration the signatures thereon. The signers should not thereafter be permitted to withdraw their names therefrom. State ex rel. Dethlefs v. Fendall, 135 Or. 145, 295 P. 191.

3. It is argued that the city clerk has a reasonable time to investigate the petition before he is required to file the same.

The charter of the city of Baker makes no provision for the length of time in which the city clerk should complete the investigation of the petition. Neither is there any general statute applying specially to recall petitions. Initiative and referendum petitions presented to the county clerk for checking with the registration of the signers thereof are permitted to be held by the clerk "two days for the first two hundred signatures thereon and one additional day for each two hundred additional signatures or fraction thereof." Oregon Code 1930, §...