State Ex Rel. Jensen v. Wells

281 N.W. 99, 66 S.D. 236, 1938 S.D. LEXIS 50

• Court: South Dakota Supreme Court
• Decided: August 13, 1938
• Docket: File No. 8108.
• Status: Published

Opinions

RUDOLPH, J.

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 5067 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 cir culated and which purported to contain the names of 30,416 petitioners. It is stipulated that the 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 months 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 no'w 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 N'o. 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.

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, R. C. 1919.

At the outset, we classifjr 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. Thé requirement for the verification of a referendum petition is found in Section 5074 R. C. 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:

“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 kno'w 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.

The above section of our code was construed in the case of Morford v. Pyle, 53 S. D. 356, 220 N. W. 907, 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 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: “As the circulator of a petition is the agent of the signer, and his oath is the only evidence of the genuineness of the signature, it follows as a matter of course that, where he is shown to- have acted fraudulently, the value of his verification is destroyed, and the petition must fall, unless the genuine signatures are affirmatively s-ho'wn. But, in the absence of evidence of intentional fraud or guilty knowledge on the part of the circulator, it would be an unjust rule to deprive the honest signer of his right to- have his signature counted * *

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, 61 S. D. 339, 249 N. W. 318, clearly took the position that it was the holding in the M'orford 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: “That case had been tried in the circuit court, and the fraudulent matters referred to in our opinion had been established by the evidence taken at the trial. * * * The mere fact that it appears on the face of the petition, following the signature of a signer, that his residence is in a county different than that shown in the affidavit, does not establish that the affidavit is fraudulent. It is possible that the signer of the petition did not state correctly the county in which he resides, or there might be other facts and circumstances which would establish that the affidavit was in fact not fraudulent.”

We think it clear therefore that since the case of State ex rel. Coon v. Morrison, if not before, the affidavit must not only be false, but it must also be made fraudulently, which fact must be established by evidence before it can be held that the affidavit is invalid and thereby destroy the whole section of the petition to which it is attached. The question then arises, what 'constitutes a fraudulent affidavit within the meaning of this statute. No precise definition can be given or should ibe attempted.

“Courts have never yet undertaken to lay down any specific and definite rules in regard to fraud, by- which, in all cases, they will be controlled in giving relief, as' said by Lord Hardwicke: ‘Fraud is infinite, and, were courts of equity once to lay down rules, how far they would go, and no further, in extending the relief against it, or to define strictly the species of evidence of it, the jurisdiction would be cramped7 and perpetually eluded by new schemes which the fertility of man’s invention would contrive.’ Parkes, Hist. Ch. 508.” Meldrum v. Meldrum, 15 Colo. 478, 24 P. 1083, 1086, 11 L. R. A. 65.

Clearly mere falsity of . the affidavit does not establish that it is fraudulent; there must be scienter or knowledge. If the affiant has some reasonable ground upon which to- believe in the truth of the statement -contained in the affidavit, bve do- not -believe the affidavit should be said to have been made fraudulently. It must also appear that there was an intent to deceive. The intent to deceive is the essential element of fraud. 26 -C. J. x 115, and many cases cited. A good statement is as follows: “Fraud cannot exist, as a matter of fact, where the intent to deceive does not exist, for it is emphatically the action of the mind, which gives it existence.” Tilghman v. West, 43 N. C. 183.

We have grouped plaintiff’s attack upon the verification into several classes, which we will consider separately.

Plaintiff makes no- attack upon the verification in the sections of the petition numbered, as follows: i, 2, 4, 6, 7, 8, 10, 11, 20, 25, 29, 34, 38, 58, 62, 66, 75, 80, 81, 82J4, 83, 84, 85, 89, 91, 92, 105, 106, 108, no, 113, ii'5, 116, 118, 120, 121, 124, 125, 126, 130, 132, x-37, 138, 139, 141, 142, 144, 145, 146, 147, 149, 151, 158, 159, 160, 166, 183, 187, 190, 192, 197, 198, 199, 202, 211, 214, 220, 221, 222, 223, 224, 227, 230, 233, 234, 235, 242, 243, 244, 245, 247, 248, 250, 255, 256, 260, 269, 277, 278, 280, 281, 282, 283, 287, 288, 290, 293, 297, 300, 307, 310, 312, 313, 317, 32X, 324, 325, 326, 327, 329> 33L 334, 337, 34°, 342, 343, 346, 347, 350, 351, 353, 354, 355, 357, 358, 359, 361, 362, 363, .364, 365, 367, 370, 372, 373, 375, 377, 378, 379, 381, 383, 385, 389, 395, 396, 402, 407, 416, 417, 421, 422, 423, 425, 426, 427, 428, 432, 433, 434, 435, 440, 443, 446, 448, 449, 45 L 453, 455, 45®, 459,' 461, 462, 466, 470, 473, 474, 4811, 482, 484, 485, 488, 492, 494, 496, 497, 499, 500, 501, 503, 504, 508, 510, 5*4, 518, 530, 531, 532, 541, 543, 545, 546, 548, 551, 554, 559, 560, 562, 563, 564, 568, 570, 572, 574, 575, 577, 580, 581, 582, 583, 584, 586, 588, 590, 591, 593, 596, 597, 609, 613, 614, 616, 620, 624, 625, 626, 627, 630, 631, 632, 635, 638, 642, 646, 648, 650, 653, 654, 655, 656, 664, 671, 674, 683, 685, 686, 689, 691, 693, 695, 699, 700, 701, 702, 703, 705, 706, 710, 711, 712, 715, 716, 724, 726, 728, 729, 730, 732, 733, 736, 737, 739, 740, 742, 744, 745, 748, 749, 755, 760, 763, 765, 774, 775, 78o, 781, 789, 791, 793, 794, 807, 811, 813, 814, 816, 819, 820, 821, S23, 828, 829, 837, 838, 839, 841, 842, 846, 847, 850, 852, 853, 854, 858, 859, 862, 868, 870, 874, 875, 876, 877, 878, 881, 887, 888, 891, 892, 894, 896, 900, 903, 904, 908, 912, 913, 917, 9x8, 922, 923, 925, 928, 929, 930, 931, 934, 935, 937, 941, 943, 947, 951, 961, 963, 968, 972, 974, 978, 979, 986, 989, 990, 992, 995, 998, 999, 1001; names involved in these sections of the petition.

Plaintiff objects to a large number of the sections of the petition upon the ground, among others, that the sections have been altered by the insertion of material matter. The alteration is not apparent from the face of the petition and in support of this contention plaintiff relies principally upon the testimony of a handwriting expert. We are convinced that in the sections of the petition listed below where this objection has been made, plaintiff has failed to produce evidence which will overcome the presumption of the validity of the sections. We are unable to- say from the evi dence produced, that any of the sections of the petition listed 'below have been altered as contended by plaintiff.

In a number of the sections of the petition it clearly appears upon the face of the petition that the person who signed did not complete the line by adding the information required by the statute. In most of these cases the person testified that he 'was incapable of writing anything but his signature which clearly appeared from the manner in which the signature was written, and that he authorized someone else, generally someone of his family, to fill in the remaining part of the line. The circulator in many instances said he believed this proper, and that it was done in good faith. Prom the manner of the writing, that is, the contrast between the almost illegible signature and the balance of the line, we are convinced that no one could be deceived.

Plaintiff objects to certain sections of the petition listed below on the ground that there has been inserted in the sections by some one not the signer, in the residence or post office columns, the abbreviation for South Dakota following the name of the town or city given as the residence or post office address. For reasons hereafter appearing we are convinced that it is not necessary that the name of the town or city in the residence or business column be designated as being in South Dakota, if the name of the town or city given is the name of a town or city within the territorial limits of this state. The additions therefore of the “S. D’s.” in the residence or post office column would not be material to the validity of the section of the petition, and would not render the affidavit fraudulent.

Plaintiff objects to certain sections of the petition listed below on the ground that they have been altered, thereby rendering the affidavit fraudulent. In these sections of the petition, the signer has written numerals in the date column, for example, “4-24-1937”. It appears that someone has written over the numeral “4” the abbreviation for the month of April as “Apr.” We are convinced that the numeral abbreviation in the date column is a compliance with the statute requiring that the date be inserted. Therefore, the addition of the “Apr.” over the “4” becomes immaterial, and cannot 'be considered as a basis for rendering the affidavit fraudulent.

Plaintiff objects to a large number of the sections of the petition on the ground that they are fraudulent because the manner of circulating was similar to the manner in which the petitions were circulated which were involved in the case of Morford v. Pyle, supra. Many of these sections of the petition must go out. In the sections of the petition listed, plaintiff has failed to produce facts sufficient to show that the affiant did not personally circulate the petition.

Plaintiff objects to certain sections of the petition listed below on the ground that the signer is not a resident of the county appearing in the verification. While the fact of nonresidence was established by evidence, nevertheless, we believe that the situation must be covered by the holding in the State ex rel. Coon v. Morrison Case. There is no showing that the affiant had any intent to deceive.

Theré was an attempt made by plaintiff to establish as to some of the sections of the petition that the circulator’s affidavit was false insofar as the circulator swore that the person who signed the petition knew of its contents. The evidence does not sustain this contention in the sections listed.

The above covers the objections of the plaintiff to the sections of the petition listed below. Other objections made by plaintiff to the verification are not involved in these sections. Obviously, time and space will not permit a discussion of the testimony and the facts involved in the different sections of the petition. We have carefully considered each section together with the testimony adduced, and have concluded that in the following instances the verification cannot be held to :be fraudulent.

Sections: 12, 15, 19, 27, 28, 31, 33, 37, 39, 40, 41, 42, 44, 45, 46, 5L 53, 54, 55, 57, 6o, 6l, 63, 67, 68, 76, 77, 88, 97, 99, 102, 103, 104, 112, 128, 129, 131, 134, 136, 153, 173, 175, 176, 184, 193/ 195, 204, 205, 206, 207, 237, 241, 251, 252, 257, 261, 265, 266, 267, 292, 303, 308, 3i4, 330, 332, 338, 345, 3^8, 369, 371, 384, 386, 388, 39°, 392, 397, 400, 408, 410, 412, 414, 420, 424, 429, 437, 438, 441, 450, 456, 4^4, 4®, 475, 48o, 487, 491, 498, 507, 511, 512, 517, 521, 524, 527, 533, 535, 536, 537, 538, 539, 547, 550; 552, 553, 556, '561, 565, 567, 57L 573, 576, 578, 585, 5§7, 594, 595, 59§, 599, 600, 603, 605, 606, 611, 612, 615, 618, 621, 629, 634, 640, 652, 659, 660, 662, 66$, 667, 668, 675, 679, 680, 687, 688, 690, 723, 754, 756, 758, 759, 766, 771, 772, 776, 778, 779, 808, 812, 815, 817, 833, 834, 835, 855, 864, 866, 873, 879, 886, 895, 897, 901, 906, 909, 914, 915, 919, 921, 927> 932, 939, 940, 945, 949, 952, 953, 954, 955, 958, 967, 985, 988> 991, 993, 994, 1000, 1002. signatures.

This brings us to the objection of the plaintiff relating to the individual signatures as distinguished from the objection relating to the verification. The statute, 'Section 5069, R. C. 1919, requires that “each elector shall add to his signature his place of residence, business, postoffice address and date of signing.” The requirements of this statute have heretofore been construed by this court as requirements of substance and not of form. Shields v. Wells, 65 S. D. 552, 276 N. W. 246, and cases cited.

Plaintiff first contends that, if the signer failed to write either South Dakota or the abbreviation therefor in the residence or business column, the signature should not be counted. We cannot agree. By signing the petition the signer represents that he is a “qualified elector of the State of South Dakota.” As disclosed by the body of the petition above set out, the first sentence therein states: “We, the undersigned, qualified electors of the State of South Dakota.” It would appear most technical to us after this representation to require that the signer after writing in either the post office or residence column such words as Aberdeen, Flandreau, Pierre, Deadwood, or Canton, be further required to follow such words with the word “South Dakota”, or the abbreviation therefor. Section 5073, C. 1919, provides: “The petition * * * shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.”

Plaintiff next contends that where a signer under the residence ■ column writes merely a street address without giving the town or city, but the town or city appears under the post office address, the signer has failed to give the information required by the statute. We believe the whole line must be read together, and when read together in the light of the designated column headings, it clearly appears, we ¡believe, that the signer in his own hand has given his residence and post office address as required by statute. We hold the same where the signer has written the ward and number under the residence column. In some of the sections of the petition under residence there appears such words as “St. Nicholas Hotel”, “Tiffany Apartments”, and other like designations. For t'he purpose of this opinion only we may concede this objection. In certain sections of the petition the signer has inserted the township or the name of a purported township. On such lines under the post office column appears the designation of the town or city, and when the line is read together, we believe the signer has given the necessary information. If the signer has incorrectly stated his residence, this fact must appear by evidence. This court cannot say, simply from looking- at the petition, that the residence as stated is not in fact the residence of the signer.

In many of the sections of the petition the signer has simply given t'he name of a county in the residence column. We do not believe this to be sufficient. The statute requiring the residence to be stated was enacted, we 'believe, for the purpose of allowing anyone who wished to investigate the sections óf the petition to locate the persons who 'had signed. While it might be that in some of the counties which are sparsely populated the designation of the county would be sufficient to enable anyone to locate the signer in a reasonable time; in other more thickly populated counties such designation of residence would be of little value. For example a person living in Sioux Falls giving his residence as Minnehaha County would not be of any great aid to anyone investigating the validity of the petition upon which a signer has thus designated his residence. For the same reason we believe that such designations as “farm” or “ranch” under the residence column is not a sufficient designation to comply ¡with the statute.

Plaintiff contends that a designation of “W. P. A.” under the business column is an insufficient statement of business. We think in this day .and age W. P. A. has a very definite meaning as an occupation or business, and that such designation is sufficient.

In a few instances the signer has failed to add the year in the date column. For the purposes of this opinion only, we may concede that it is necessary to insert the year in the date column. Under prior decisions of this court ditto marks in the date column do not constitute a compliance with t'he statute. Plaintiff contends that the opinions we have just above expressed with regard to the manner and form of signing are contrary to the holdings of this court in the case of Shields v. Wells, supra. We cannot agree. We simply held in that case that, where a signer followed his name with the name of the town only, there was no presumption that such town constituted 'both residence and post office address. The sections of the petition involved in that case were comprised of two different mimeographed sheets, and in regard to the signatures held invalid there was no attempt to conform the writing to the columns headed residence and post office. The signer had simply 'written his name and followed it with the name of the town. From the form of the petition it was impossible to determine whether that town had been designated as the residence or as the post office address. The sections of the petition in the present case which have been held valid, clearly present a different question. In these sections of the petition the signers have confined their writing to the different columns and under the different columns have set out certain information. We read the information furnished' by the signer as a whole and in the light of the different columns indicated on the section of the petition.

Applying the principles above announced, we have deducted from the above sections of the petition which we have held good insofar as the verification is concerned, individual signatures, as follows: First, where it appears that the signer has given only the county in the residence column; second, where such words as “farm”, “ranch”, “hotel”, or “apartment” or a named hotel or apartment, is given under the residence column; third, where the signer has left blank spaces under one or more of the columns; fourth, where the signer has inserted ditto marks in the date column; fifth, where no year has been written in the date column; sixth, where it appears that the signer was not a resident in the county named in the affidavit; and seventh, those signatures on the sections of the petition listed above where it is apparent that the signer did not complete the line. Such deductions amount to 848 signatures. Sections of the petition field good so far as verifications are concerned contain 15,779 signatures. ’Deducting the 848 invalid signatures from the 15,779 leaves a balance of 14,931 signatures which is more than the statute requires. We are convinced that there are other valid signatures upon the petition. However, it is unnecessary for us to consider the matter further be cause the sections listed herein, which we have held valid, contain more valid signatures than the statute requires.

The proceedings are dismissed without costs to either party.

ROBERTS, P. J., and WARREN and SMITH, JJ., concur.