State ex rel. Winter v. Swanson

• Decision Date: 08 October 1940
• Docket Number: 31067.
• Citation: 294 N.W. 200,138 Neb. 597
• Parties: STATE EX REL. WINTER ET AL. v. SWANSON, SECRETARY OF STATE.
• Court: Nebraska Supreme Court

294 N.W. 200

138 Neb. 597

STATE EX REL. WINTER ET AL. v. SWANSON, SECRETARY OF STATE.

No. 31067.

Supreme Court of Nebraska.

October 8, 1940

Syllabus by the Court.

1. The provisions of section 4, art. III of the Constitution empowering the legislature to enact laws to facilitate the operation of the initiative power, authorizes it to enact laws to prevent fraud or to render intelligible the purpose of the proposed law or constitutional amendment.

2. Any legislative act which tends to insure a fair, intelligent and impartial result on the part of the electorate tends to facilitate the initiative power.

3. Requirements in a statute that a form of initiative petition must be filed with the secretary of state before petitions are circulated, together with a statement of the names of persons sponsoring the petitions or contributing or pledging contributions to defray the expense of preparation, printing and circulation, tend to prevent fraud and to render intelligible the purpose of the proposal to be submitted, and by so doing they facilitate the initiative power within the purview of the Constitution.

4. Requirements of a statute enacted to facilitate the initiative power reserved to the people by providing safeguards against fraud and deception will ordinarily be construed to be mandatory and not directory.

Appeal from District Court, Lancaster County; Chappell, Judge.

Proceeding by the State, on the relation of Everett T. Winter and another, for a writ of mandamus requiring Harry R. Swanson Secretary of State, to accept and file certain initiative petition. From a judgment denying the writ, relators appeal.

Affirmed.

Baylor, TouVelle & Healey and Carlisle P. Myers, all of Lincoln, for appellants.

Walter R. Johnson, Atty. Gen., and Edwin Vail, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is an appeal from a judgment of the district court for Lancaster county denying relators a peremptory writ of mandamus against respondent, the secretary of state, to require him to accept and file certain initiative petitions by which it was sought to submit to the voters of Nebraska at the general election a certain constitutional amendment limiting the tax levy on farm and city property.

It is conceded that the petitions and accompanying affidavits were in proper form and that the proceedings were in all respects regular, except a failure to comply with the following provisions of chapter 34, Laws 1939:

" Prior to obtaining any signatures to said petition, a copy of the form to be used shall be filed with the secretary of state together with a sworn statement containing the name or names of every person, corporation or association sponsoring said petition or contributing or pledging contribution of money or other things of value for the purpose of defraying the cost of the preparation, printing or circulation thereof." § 13.

Relators admit that the foregoing provisions of the statute were not complied with and allege that the cited statutory provisions are unconstitutional and void, and that, in any event, they are directory and not mandatory.

The power to enact laws and adopt constitutional amendments independently of the legislature was reserved by the people in the Constitution. Const., art. III, sec. 2. The Constitution also provides in part: " The provisions with respect to the initiative and referendum shall be self-executing, but legislation may be enacted to facilitate their operation." Const., art. III, sec. 4. Relators contend that the provisions in question do not " facilitate their operation" and that they, therefore are...