White v. Welling

• Decision Date: 05 May 1936
• Docket Number: 5808
• Citation: 89 Utah 335,57 P.2d 703
• Court: Utah Supreme Court
• Parties: WHITE et al. v. WELLING, Secretary of State

57 P.2d 703

89 Utah 335

WHITE et al. v. WELLING, Secretary of State

No. 5808

Supreme Court of Utah

May 5, 1936

Rehearing Denied October 14, 1936.

Original proceeding in mandamus by J. Parley White and others against Milton H. Welling, as Secretary of State.

Alternative writ of mandamus previously issued recalled, and application for permanent writ denied.

Rendell N. Mabey, of Salt Lake City, for plaintiffs.

Joseph Chez, Atty. Gen., and S.D. Huffaker, Deputy Atty. Gen., for defendant.

OPINION

PER CURIAM.

This is an application for an alternative writ of mandamus to compel the secretary of state to do certain acts provided for in title 25, chapter 10, R. S. Utah 1933, known as the Initiative and Referendum Law. An alternative writ was issued directing the secretary of state to perform said acts or show cause why he refused to do so.

Title 25, chapter 10, above referred to, dealing with the initiation of legislation on behalf of the people independent of the Legislature and for the referendum to the people of certain laws passed by the Legislature, provides for three stages respecting the initiation and submission of laws to the people directly. The first stage provides for an application for "petition copies" to be filed in the office of the secretary of state, which application shall be signed by not fewer than five persons designated as "sponsors." There are certain qualifications which these sponsors must possess. The second and third stages of procedure under the law do not concern us in this proceeding. The second deals with the circulation of the petition and the actual initiation of the law by the obtaining of the signatures of 10 per cent of the electors of the state and at least 10 per cent of the electors in every county of a majority of the counties. This constitutes the actual initiation. The third stage is the printing of a synopsis of the properly initiated law on the ballots and the voting of the people thereon.

Reverting again to the first stage of the procedure, upon the payment of the $ 10 fee for, and the filing of, the application for petition copies, the secretary of state shall determine from such application the number of petition sections desired and the number of circulation sheets required for each section the circulation sheet, as specified by the act, to be a sheet ruled with 25 lines to the page, three-eighths of an inch apart, with a specified space left at the top for the purpose of binding and for the printing of a warning as to the penalty for violation of the law under such space and before the beginning of the lines. Each line is for a signature of an elector with a space for his address. On the back of each circulation sheet is printed a form for the certificate of a notary public or other person permitted to administer oaths, to the effect that the names of the persons which appear on the front side of the sheet were signed by persons who professed to be the persons whose names appear thereon, and that he believes each signer is a voter of the state of Utah, and that each had signed his name and written his post office address correctly. Under the law, when the application for petition copies is filed, it is the duty of the secretary of state to ascertain from said application how many of these circulation sheets are to go in each petition section, and, if he cannot ascertain that from the application, he is then to call upon the sponsors as to how they desire to have the petition sections made up and the number of petition sections desired. The purpose of this is that those who circulate the petitions for signatures of electors may take various sections of the proposed petition into different parts of the state and obtain signatures simultaneously, but that each section will have a definite number of circulation sheets of a uniform size and type so that, when the different sections of the petition are assembled, they will form one uniform whole which may be evenly bound and repose in the office of the secretary of state. The law requires that the front of each section have a printed copy of the law which it is proposed to initiate, so that the electors who are requested to sign that particular section may have opportunity to read the proposed law. Provision is made in the law for the different sections signed by electors in the various counties to be sent to the county clerk of each such respective county for the purpose of determining whether the signers were qualified electors. The sections would remain unassembled until they were finally returned by the various county clerks to the secretary of state. The purpose of applying to the secretary of state for the printing of circulation sheets and petition copies is in order that the uniform sections containing the circulation sheets should start from a central office, and that, after the circulation sheets are filled with signatures, they may be reassembled in such central office, thus making for uniformity in the type of petition circulated and the parts thereof and order-liness, expedition, and accuracy in the performance of the various steps required to be taken within the certain specified periods before the election. There is a timetable provided in the law within which every step is required to be done, leading right up to the time of the printing of the ballot.

The act further provides that, after the secretary of state ascertains the number of sections and the number of circulation sheets for each section, which would apprise him of the total number of circulation sheets needed and the total number of copies of the law needed to append one to the front of each petition section, he shall, within three days, call for bids from three different printers and shall transmit the lowest and best bid to the sponsors, who shall thereupon, within a certain length of time after receiving such information, pay to the secretary of state the cost of said printing. The law also provides for a charge of 50 cents for each 100 circulation sheets, which also is to be paid by the sponsors. Thus the state is not put to any expense in the printing or making up of the petition sections which are to go before the electors for signatures in order to initiate the law.

It appears from the record in this case that four different applications for petition copies were presented to the secretary of state; each application signed by five sponsors. No point is made that the sponsors did not have the qualifications required for sponsors by the act. Appended to each application for petition copies was a copy of the proposed law to be initiated under that particular application. In other words, it was intended that four different purported proposed laws should be initiated; therefore an application for petition copies for the initiation of each proposed law was filed and the $ 10 fee paid for and five sponsors appeared as signers of each application. The secretary of state received the applications and received the fee in each case, but it is claimed by plaintiffs in this mandamus action that the secretary of state has refused to proceed to determine from the applications how many sections he should make up and the number of circulation sheets required for each section, or that if he was unable to do so from the content of the application for the said petition copies, he refused to make known his inability to the sponsors as provided by the law. The petition for the writ of mandamus was brought by four plaintiffs, each one of whom appeared as one of the sponsors on each of the four separate applications for petition copies. The petition for the writ of mandamus was to require the secretary of state to act on all four applications on the theory that his failure to act on all of them was a refusal to do a particular ministerial duty, to wit, act as required by the law pursuant to the applications for petition copies. The Attorney General, representing the secretary of state, has demurred generally and specially. The petition for such writ has attached to it copies of each of the applications for petition copies and each of the purported proposed laws to be initiated.

We believe the following principles are applicable in regard to the duty of the secretary of state under the first or preliminary stage of procedure dealing with the matter of the application for petition copies as provided by title 25, chapter 10, R. S. 1933: (1) The secretary of state cannot pass upon the constitutionality of any proposed law, at least at this stage of the proceedings under the Initiative and Referendum Act. Threadgill v. Cross, 26 Okla. 403; 109 P. 558, 138 Am. St. Rep. 964; In re Initiative Petition No. 2, 26 Okla. 548, 109 P. 823; In re Initiative State Question No. 10, 26 Okla. 554, 110 P. 647; State v. Osborn, 16 Ariz. 247, 143 P. 117; State v. Kozer, 126 Ore. 641, 270 P. 513. If the proposed law showed unquestionably and palpably on its face that it was unconstitutional--for instance, an attempt by the proposed law to abolish a constitutional office, board, or department--it is quite likely that this court would refuse to issue the mandamus on the theory that it would not compel the secretary of state to do something which would in the end be unavailing. State v. Roach, 230 Mo. 408 130 S.W. 689, 139 Am. St. Rep. 639; State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891, 81 A. L. R. 1066; State ex rel. Davies v. White, 36 Nev. 334, 136 P. 110, 50 L. R. A. (N. S.) 195. (2) The secretary of state cannot, nor can this court in a mandamus proceeding, pass upon a question of merit, worth, wisdom, validity, or policy of any proposed law intended to be initiated. State v. Kozer, supra. (3) The acts required to be done by the secretary of state, at least under...