State ex rel. Morris v. Marsh

162 N.W.2d 262, 183 Neb. 521, 1968 Neb. LEXIS 585

Opinions

McCown, J.

This is a mandamus action to require the Secretary of State to accept and file an initiative petition seeking a constitutional amendment prohibiting the State of Nebraska from levying an income tax for state purposes.

On February 7, 1968, a copy of the form of initiative petition to be used, together with a sworn statement as to the names of persons or corporations sponsoring the petition or contributing or pledging contributions, was filed with the Secretary of State. There is no contention that either of these documents were not in compliance with statutory requirements.

On July 3, 1968, petitions bearing the signatures of 57,521 electors were filed with the Secretary of State. On July 5, 1968, additional petition forms were filed. The number of valid signatures required was 48,640. No issue is raised as to the constitutionally required distribution among counties.

On July 3, 1968, a verified statement as to persons or corporations contributing or receiving money or other thing of value was filed with the petition forms. Supplemental itemized verified statements were filed on August 12 and August 28, 1968. On July 26, 1968, the Secretary of State issued his certification in which he found that less than 48,640 of the signatures were acceptable or valid, and that the person or persons presenting such petitions failed to file a satisfactory itemized verified statement as provided by section 32-704, R. R. S. 1943. He then found the initiative petition to be insufficient and refused to certify the proposed amendment to the ballot for the 1968 general election.

This action was filed in the district court for Lancaster County on August 5, 1968. Peremptory writ of mandamus was issued on September 16, 1968, requiring the respondent Secretary of State to accept and file the initiative petition and to take the necessary steps to place the issue on the ballot for the November 5, 1968, general election. On appeal to this court, the matter was advanced for hearing and on October 21, 1968, Per Curiam judgment was entered affirming the judgment of the district court, with written opinion to follow.

The evidence and stipulations at the hearings in the district court indicate that the respondent Secretary of State rejected some 14,000 signatures, approximately 25 percent of those filed. It is conceded by the respondent that 43,964 valid signatures were filed on July 3, 1968 before 5 p.m. It is also conceded that there were 2,494 signatures contained on petitions filed after 5 p.m. on July 3, 1968, and on July 5, 1968, which would have been valid except for the “late filing.”

The constitutional provisions dealing with the initiative are basic. Article III, section 1, of the Constitution of Nebraska, provides in part: “The people reserve for themselves, however, the power to propose laws, and amendments to the constitution, and to enact or reject the same at the polls, independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act, item, section, or part of any act passed by the Legislature.”

Article III, section 2, Constitution of Nebraska, provides in part: “The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature. * * * The constitutional limitations as to the scope and subject matter of statutes enacted by the Legislature shall apply to those enacted by the initiative.”

Article III, section 4, Constitution of Nebraska, provides in part: “The method of submitting and adopting amendments to the Constitution provided by this section shall be supplementary to the method prescribed in the article of this Constitution, entitled, ‘Amendments’ and the latter shall in no case be construed to conflict herewith. The provisions with respect to the initiative and referendum shall be self-executing, but legislation may be enacted to facilitate their operation.”

The inter-action and effect of these constitutional provisions upon statutes intended to “facilitate their operation” has been considered many times. In Klosterman v. Marsh, 180 Neb. 506, 143 N. W. 2d 744, we said: “Constitutional provisions with respect to the right of initiative and referendum reserved to the people should be construed to make effective the powers reserved. The case of State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N. W. 179, although later vacated on procedural grounds stated: ‘The amendment under consideration reserves to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their act. The law should be construed, if possible, so as to prevent absurdity and hardship and so as to favor public convenience.’ The court later said: ‘Any legislation which would hamper or render ineffective the power reserved to the people would be unconstitutional.’ ”

We also said in State ex rel. Ayres v. Amsberry, 104 Neb. 273, 177 N. W. 179: “Laws to facilitate the operation of the amendment must be reasonable, so as not to unnecessarily obstruct or impede the operation of the law.” It is clearly the duty of this court to give a statute an interpretation which meets constitutional requirements if it can be reasonably done. State ex rel. Winter v. Swanson, 138 Neb. 597, 294 N. W. 200.

Relator filed pages of the initiative petition on July 5, 1968, to support a submission at the general election scheduled for November 5. Respondent ruled that the filing was untimely under Article III, section 2, Constitution of Nebraska, which reads in part: “* * * when thus signed the petition shall be filed with the Secretary of State, who shall submit the measure * * * at the first general election held not less than four months after such petition shall have been filed.”

The district court concluded that the filing on July 5 was timely for submission on November 5. Discovering no authoritative precedent, he took the position of Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72, which construed the following provision: “* * * Initiative petitions * * * shall be filed * * * not less than four months before the election at which they are to be voted upon * * Ark. Const., amend. 7. Pafford applied the general rule followed in most United States jurisdictions, the court saying: “* * * This election is to be held on November 7, and it is argued that the filing of the petition on July 7 was one day too late. That result can be reached only by excluding both the first and the last day * * * we have consistently held that only one of the two days need be excluded.”

Nebraska analogies trend in opiposite directions. The minority method of computation was approved for determination of the effective date of legislation in McGinn v. State, 46 Neb. 427, 65 N. W. 46; and Summerville v. North Platte Valley Weather Control Dist., 170 Neb 46, 101 N. W. 2d 748. See, Dillon v. Gloss, 256 U. S. 368, 41 S. Ct. 510, 65 L. Ed. 994; In re Donaldson, 138 F. 2d 419; Mushel v. Board of County Commissioners of Benton County, 152 Minn. 266, 188 N. W. 555; generally 98 A. L. R. 2d 1331. Other Nebraska cases adopted the majority method. A requirement that certificates of nomination be filed at least 8 days before election was satisfied by a filing on October 31 for election on November 8. State v. Dewey, 73 Neb. 396, 102 N. W. 1015. A requirement for service of summons 3 days before trial was met by service on December 24 of summons returnable December 27, the trial date, in Messick v. Wigent, 37 Neb. 692, 56 N. W. 493. See, also, White v. German Ins. Co., 15 Neb. 660, 20 N. W. 30; Gurske v. Britt, 86 Neb. 312, 125 N. W. 539.

The fiction of an indivisible day is “a figurative recognition of the fact that people do not trouble themselves without reason about a nicer division of time.” Burnet v. Willingham L. & T. Co., 282 U. S. 437, 51 S. Ct. 185, 75 L. Ed. 448. Measurement based on the fiction is approximate whether we exclude both or only one of the terminal days. Apart from the fiction, the deviation in this case was probably several hours, surely less than 24, out of 4 months. There is little or no dispute that in terms of a full day and an exact date, November 5 is a date exactly 4 months after July 5. The respondent attempts to read the language of the Constitution as requiring the election to be held more than 4 months after the filing of the petition, instead of “not less than 4 months.” (Emphasis ours.) The district court’s computation was correct.

We hold that a requirement that an initiated measure be submitted at the first general election held not less than 4 months after filing of the petition is satisfied by a filing on July 5 for a general election to be held November 5.

The respondent objected to and disqualified the pages of the petition and every signature thereon where the circulator of the particular pages did not sign his full Christian name to the verification or, if a woman, signed the verification with her husband’s name preceded by her title. His theory was that a circulator is required to be an elector and there is no presumption to that effect unless he has signed his full Christian name as required for signers of a petition by a portion of section 32-713, R. S. Supp., 1967. That portion provides that an elector signing an initiative petition shall personally affix his surname and Christian name in full. W. C. Fitzwater and A. J. Treutler, as circulators, signed verification affidavits on the petitions circulated by them, using their initials rather than their full Christian names. There were 851 signatures disqualified by the respondent on this ground. Evidence in the district court established that the signatures of these circulators as signed were used and generally accepted in their home communities as their legal signatures.

A proviso of section 32-713, R. S. Supp., 1967, permits even the ordinary signer of a petition to use his generally accepted legal name in the community. It should be noted also that the verification affidavit signed by a circulator states under oath that he is a legal and qualified voter of the State of Nebraska. No such affidavit is required of an ordinary signer and the disqualification of a nonregistered elector is also specifically removed by a proviso of section 32-713, R. S. Supp., 1967, itself where the signing elector files with the petition an affidavit setting forth the fact that he is a qualified elector. Certainly the affidavit of the circulator meets that requirement.

The same statute, section 32-713, R. S. Supp., 1967, specifically provides: “Any person signing any name other than his own to any petition, or knowingly signing his name more than once for the same measure at one election, or who is not, at the time of signing or circulating the same, a legal voter and qualified to sign or circulate the same, or any person who shall falsely swear to any signature upon any such petition, or any officer or person willfully violating any provision of sections 32-702 to 32-713, shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the Nebraska Penal and Correctional Complex not exceeding two years, or by both such fine and imprisonment.” In the light of such criminal sanctions and the specific constitutional provisions preserving the right of initiative, presumptions must be in favor of legality rather than illegality.

We hold that where the circulator of an initiative petition has signed and sworn to a properly executed statutory form of affidavit that he or she is a legal and qualified voter of the State of Nebraska, there is a presumption that he or she is a.qualified elector in the absence of affirmative evidence to the contrary. This presumption does not disappear simply because he or she has not signed his or her full Christian name.

The district court validated the 851 signatures obtained by W. C. Fitzwater and A. J. Treutler and this action was clearly proper.

The district court limited its consideration to the signatures on the petitions circulated by Mr. Fitzwater and Mr. Treutler. There were 320 additional signatures on petitions which were rejected by respondent under the same objections, but as to which there was no specific testimony as to the legal name of the specific signing circulator. We, therefore, validate an additional 320 signatures which were not counted nor considered by the district court.

The respondent rejected all petitions circulated by one John Sims. These contained over 1,000 signatures, of which 755 were conceded by the respondent to be valid except for the fact that they were circulated and verified by John Sims. The basis for the challenge was that John Sims himself had signed two similar petition forms, one as a resident of Grand Island and the other as a resident of Omaha. These forms were circulated by others. The respondent contends that since Sims violated the law as a signer of other petitions, his sworn statement as a circulator of petitions should be regarded as false even though there is no evidence of fraud or irregularity on the part of Mr. Sims in his circulation of the petition. We cannot agree. Cases indicating that where there has been proven fraud in the obtaining of one or more petitions by a circulator, all petitions obtained by him should be disqualified are not applicable. As the district court found: “Whatever mistake he made as an individual signer should not taint the petitions circulated by him.”

In Cobb v. Burress, 213 Ark. 177, 209 S. W. 2d 694 (1948), the court specifically rejected an argument such as the respondent makes here. In that case, the court refused to disqualify parts of a petition where there was no proof that those parts contained nongenuine signatures even where the alleged misconduct of the individual was as a circulator.

If presumptions are to be indulged in, the presumption ought to be that acts performed in the circulation of petitions are legal rather than fraudulent. See, State ex rel. Ayres v. Amsberry, supra; In re Initiative Petition No. 281, State Question No. 441 (Okl.), 434 P. 2d 941 (1967).

The respondent conceded that 755 of the signatures obtained by Mr. Sims were otherwise valid, but contends that they should be invalidated on a vague presumption that the sworn affidavit of the circulator is false. We see no justifiable reason to disfranchise electors in the exercise of their constitutionally reserved right of the initiative on such grounds.

Where there is no evidence of fraud or irregularity on the part of the circulator in his circulation of the initiative petitions, evidence that he, as an individual, signed two other petition forms for the same measure does not destroy the presumption of validity of his affidavit as a circulator nor justify the disqualification of concededly valid signatures obtained by him as circulator.

We confirm the action of the district court in validating 755 signatures obtained by John Sims as circulator.

The respondent also challenged signatures in which the address of the signer was a city or village which was not located in the county stated in the preamble of the petition page. There were 191 signatures appearing in Sarpy County petitions where the signer indicated an Omaha address. The theory of the objection is that Omaha is in Douglas County and a Douglas County resident cannot sign a Sarpy County petition. As the lower court found, it is a well-known fact of which the court can probably take judicial notice, that there are many who have Omaha post office addresses who actually live in Sarpy County. In any event, there was ample evidence adduced by the relator to establish this fact and there was no attempt to controvert that evidence. Neither was there any evidence that any signer of these petitions was not a resident of Sarpy County. We confirm the action of the district court in validating 191 Sarpy County signatures rejected by the respondent.

Two categories of objections made by the respondent relate to an incomplete or missing date opposite a particular signature, or to the date having been written by someone other than the signer. In practically every instance of an incomplete or missing date, the deficiency occurred on a signature and date line situated between two correctly stated and identical dates, and for the most part, the same circumstances were involved in the cases of the date having been written by someone other than the signer. As the trial court found: “* * * the incomplete date followed, for example, June 3, 1968 and was itself followed by June 3, 1968, which would make it readily apparent that the missing or incomplete date was in fact June 3rd.” The date of signing an initiative petition is obviously important because a signer must be an elector on that date. The problem of what presumptions shall apply in the construction of statutory provisions which are constitutionally permitted to “facilitate” the exercise of the initiative power reserved to the people has often been considered by the courts. As this court said in State ex rel. Ayres v. Amsberry, supra; “The amendment under consideration reserves to the people the right to act in the* capacity of legislators. The presumption should be in favor of the validity and legality of their act. The law should be construed, if possible, so as to prevent absurdity and hardship and so as to favor public convenience.”

The decisions almost universally hold that the power of initiative must be liberally construed to promote the democratic process and that the right of initiative constitutionally provided should not be circumscribed by restrictive legislation or narrow and strict interpretation of the statutes pertaining to is exercise. Farley v. Healey, 62 Cal. Rptr. 26, 431 P. 2d 650 (1967); Cochran v. Black, 240 Ark. 393, 400 S. W. 2d 280 (1966); Potash v. Molik, 230 N. Y. Supp. 2d 544, 35 Misc. 2d 1 (1962).

Section 32-705, R. S. Supp., 1967, ends with the following language: “All signatures secured in a manner contrary to the provisions of sections 32-702 to 32-713 shall not be counted. Clerical and technical errors in a petition shall be disregarded if the forms herein prescribed are substantially followed.”

The respondent argues that the statutorily prescribed forms are mandatory and inferentially that the language was intended to apply only to clerical and technical errors in the form of a petition and not to the manner of execution. We think the language of the statute is definite and speaks for itself. The district court was correct in holding that the objection was a technical objection where the actual date of signing was readily apparent. It should be noted here also that in the verification of the circulator, required by section 32-705, R. S. Supp., 1967, the circulator must swear under oath to two specific facts. These are that each person whose name appears on the petition sheet personally signed the petition in the presence of the affiant, and that the date to the left of each signature is the correct date on which the signature was affixed to the petition. All other matters in the required verification are on belief.

On an^ otherwise validly executed initiative petition form, where the actual and exact date on which the signature of an elector was signed is readily apparent, the omission or faulty rendition of the date should be treated as a clerical or technical error and constitutes substantial compliance with the statute. See, State v. Several Parcels of Land, 78 Neb. 225, 110 N. W. 753; Potash v. Molik, supra; Haraway v. Armstrong, 95 Colo. 398, 36 P. 2d 456. The district court validated 804 signatures involving dates in this category. That action is affirmed.

The district court also validated 154 signatures involving addresses of signers where ditto marks were used for a part or all of the address, or where portions of the address were written by someone other than the signer. Ditto marks have a clear and definite meaning and their use on an initiative petition cannot be held objectionable. Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65; Halgren v. Welling, 91 Utah 16, 63 P. 2d 550; Dawson v. Meier (N. D.), 78 N. W. 2d 420. As to complete post office addresses see Bartling v. Wait, 96 Neb. 532, 148 N. W. 507. The action of the district court in validating these signatures is also affirmed.

At this point, the total number of signatures found to be valid is 49,533, which is in excess of the 48,640 required. Many categories of objections and challenges as to several thousand additional signatures remain. We find no necessity to consider these nor the issues raised in the relator’s cross-appeal.

One final issue remains to be considered. The respondent contends that the statutory requirement that an itemized verified statement of contributions and expenses be filed at the time the initiative petition is presented for filing is mandatory and essential to the sufficiency of the petition. The argument is that the statute should be strictly construed to require not only that a statement be filed at the exact time specified, but that it must be full and complete in every detail at that time.

Section 32-704, R. R. S'. 1943, provides in part: “Prior to obtaining any signatures to the 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 the 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. Upon the presentation of such petition for filing, the Secretary of State shall determine its sufficiency. The person presenting the petition shall, at the same time, file with the Secretary of State an itemized verified statement containing the names and addresses of all persons, associations of persons, and corporations contributing money or other thing of value toward, and receiving money or other thing of value for the preparation, circulation, or printing thereof, showing the total amount contributed, pledged, or received by each.”

We note first that no time limit nor any date for filing an initiative petition is. specified by either the Constitution nor any statute. The right of initiative is not restricted to any particular time. When an initiative petition bearing sufficient valid signatures is filed with the Secretary of State, the Constitution requires him to submit the measure proposed at the first general election held not less than 4 months after such petition shall have been filed. The statute, requires the Secretary of State to determine the sufficiency of the petition upon its presentation for filing. If a petition is sufficient, the only thing determined by the date of filing is the election at which it shall be submitted to the electors of the state.

Neither section 32-704, R. R. S. 1943, nor any other section of the statutes dealing with initiative petitions provide for any action to be taken by the Secretary of State in the event the itemized verified statement is not filed or is incomplete or unsatisfactory. It should also be noted that the, requirement for filing the second verified statement follows, rather than precedes, the requirement that the Secretary of State shall determine the sufficiency of the petition.

The respondent relies heavily upon the case of State ex rel. Winter v. Swanson, supra. In that case this court held that the filing of a copy of the form of petition to be used and of the first sworn statement was mandatory. That case, however, involved a complete failure to file both the copy of the form of petition to be used and the preliminary sworn statement. In that case, this court stated: “It is clearly the duty of this court to give a statute an interpretation which meets constitutional requirements if it can be, reasonably done.” This court then stated that it was the intent of the Legislature that only information known to the relators at the time the form of petition was filed was contemplated as being required in the sworn statement.

In the, case before us, there is no evidence whatever as to what information, in addition to that disclosed, was known to the affiant who made and filed the itemized verified statement on July 3, 1968. It is also tacitly conceded that the supplemental itemized verified statement filed on August 28, 1968, met every requirement of section 32-704, R. R ,S. 1943, except as to the time of filing.

It would seem apparent that the purpose of the statutory provision with respect to the second verified statement provided for in section 32-704, R. R. S'. 1943, was to make available, to the public, in advance of the election, information as to what individuals or corporations had financially supported or benefited by the petition campaign and the, amounts involved. August 28, 1968, was several weeks before the respondent was required to furnish election officials certified copies of ballot titles, and publish copies of titles and texts of the matters to be submitted.

The case of State v. Snell, 168 Or. 153, 121 P. 2d 930 (1942), we believe to be determinative of this issue. The Oregon Supreme Court held, under constitutional provisions almost identical with ours, that: “A substantial compliance with the statute in filing the statement of contributions and expenditures is all that is required.” The court cited with approval both Nebraska cases of State ex rel. Ayres v. Amsberry, supra, and State ex rel. Winter v. Swanson, supra, and said with respect to an Oregon statute similar to ours, requiring the filing of statements of contributions and expenditures in connection with initiative, or referendum petitions: “Accordingly, this court ought not to give it such construction as to make it a hindrance to and burden upon the exercise of the rights conferred by section 1 of Article 4 of the constitution.”

It should be noted also that the Oregon statute specifically provided: “If such verified statement is not filed, as herein required, the secretary of state shall not place the measure petitioned for on the official ballot.” Our statute has no provision of any kind as to the effect of failure to file.

The district court in the case at bar, while it found that the itemized financial statement submitted on July 3, 1968, at the time of filing of the petition, was not complete, nevertheless found that “with the supplemental statement filed on August 28, 1968, the Court finds these statements contain the information known to the petitioners at the time of filing and constitute substantial compliance with the, requirement.” That finding was correct.

We hold that a substantial compliance with section 32-704, R. R. S'. 1943, in filing the itemized verified statement of contributions and expenditures is all that is required.

The power to tax is essential to the continued existence of a state. A constitutional amendment which would destroy or completely emasculate that power might well be, itself unconstitutional. That issue is not presently here.

The judgment of the district court was correct and is affirmed.

Affirmed.