The decision invalidates three classes by enumeration and by an all *Page 48 inclusive omnibus finding creates a fourth class. Expressed in the language of the opinion they are:
(1) "Ninety-two persons who signed more than one petition."
(2) "There are 857 names on petitions which contain names which were not signed by the persons whose names appear on the petitions, but were put there by the circulators of said petitions."
(3) "The undisputed testimony shows the names of 1,191 persons whose names appear to have been written in the same handwriting by persons who had signed other names."
(4) "It further appears that upon the petitions containing these names a grand total of 7,378 names appear. All these names must be excluded because they appear upon petitions verified by the false affidavit of the circulator."
Total of all names on petitions filed with the secretary of state is 13,807. The number of valid signatures necessary to initiate the measure is 11,232. The first three classes contain 2,140 names, or 435 less than the 2,575 needed to invalidate the petition. Because petitions scattered throughout the record carry 2,140 invalid and "apparently" invalid signatures, 5,238 persons whose right to vote has not been challenged are eliminated because, as the majority opinion says, "petitions verified by an affidavit shown to be false are treated as petitions having no affidavit."
Finally, the opinion makes this concession: "There is intended no intimation that any of the affiants committed forgery. A number of the affidavits are not questioned and are no doubt true. But others aver facts which the testimony shows is not true. These affiants may and no doubt did believe that the signatures were lawfully obtained, but their misconception of the law does not change the law."
Neither those representing the liquor interests nor agents of the Anti-Saloon League are the interested parties in this litigation. When the petition was filed *Page 49 became a matter of public concern whether the electors would or would not have a right to vote upon the measure.
The petition was deposited with the Secretary of State July 6. Not until September 10 — a period of sixty-six days — was there suggestion that an attack would be made. Those who challenge sufficiency spent weeks preparing their case. Under Amendment No. 7 we try all I. R. questions when a proposed measure is challenged. In other words, this court has original jurisdiction. The instant controversy, on request of plaintiff, was advanced September 30. At that time counsel for defendants stated in open court that it would be difficult to meet the issues in the time allotted. It was also stated that if the nature of the evidence was not changed no testimony would be taken.
Because measures to be voted upon at the November election must be certified not later than October 18, it was contended that additional time for development of the instant controversy could not be allowed. Amendment No. 7 to the Constitution provides: "If the sufficiency of any petition is challenged such cause shall be a preferred cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any petition, shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people."
There is nothing in this language requiring a court decision prior to certification of the ballot. Regardless of such certification, a decision rendered before November 5th holding that the measure was improperly initiated would have the effect of nullifying it.
In view of the fact that it was not essential that the cause be heard on its merits and submitted October 7, I think those defending validity of the petition should have been accorded a reasonable time within which to meet the attacks.
Heretofore, in construing the initiative and referendum amendment, we have been influenced by decisions *Page 50 of the Supreme Court of Oregon. In State ex rel. McNary, District Attorney v. Olcott, Secretary of State,62 Or. 277, 125 P. 303, it was held that where referendum petitions contained evidence of forgeries, perpetrated either by the circulator or with their connivance, the prima facie case in favor of the genuineness of the petition was overcome, and the burden shifted to those upholding validity to establish the genuineness of each signature.
In Ohio the fraud must have been intentional.
The majority opinion in the instant case rejects these holdings and turns to South Dakota for support. I have not overlooked language in the opinion wherein the words "prima facie" appear. For instance, there is this paragraph:
"If, therefore, the circulator of a petition makes affidavit that the signatures are genuine which were not signed by the petitioner himself, he has made a false affidavit, and when it is shown that the affidavit attached to a particular petition is false, that petition loses the presumption of verity. As it appears that there are more than seven thousand signatures upon petitions which have false affidavits attached, those petitions may not be included in the count of signers."
On first impression it would seem that the holding is that the petition counterparts upon which duplicate handwritings appear are not conclusively presumed to be fraudulent, for use is made of the term "presumption of verity." In another paragraph it is said: "The circulator must make affidavit that each signature is genuine, and if this affidavit is shown to be false, the petition loses its prima facie verity."
But what is an affidavit?
The opinion answers the question when it says: "No one would contend that names should be counted which appear upon petitions containing no verifying affidavit. The cases which have considered the question, as will presently appear, are to the effect that petitions verified by an affidavit shown to be false are treated as petitions *Page 51 having no affidavit." Then there is this significant comment: "In other words, the false affidavit is no affidavit at all."
We must assume, therefore, that the opinion means what it says — that "a false affidavit is no affidavit at all."
Would it be contended that petition counterparts to which no affidavits were attached might be the subjects of artificial respiration for revivifying purposes and that, after time for filing the petition had expired, it was permissible for such circulator to show that he intended to make the required affidavit, but neglected to do so? But even if this contention should be sustained, we are dealing with a situation more aggravating in that the court holds "at least" a prima facie showing of a fraud has been made when there is evidence a name was signed by some one other than the elector. Neither the Oregon nor the Ohio court holds that a mere inadvertence upon the part of the circulator creates a presumption of fraud. The Olcott case from Oregon speaks of forgeries "perpetrated either by the circulators or with their connivance." In Ohio there must have been a purpose to falsify.
It seems that what has been held in the majority opinion amounts to a declaration that a false affidavit is no affidavit at all; than ascertainment of the fact that a name on a petition was not placed there by the elector in question shows fraudulent conduct, and "at least prima facie" deprives the petition of its verity. An express declaration that evidence would be admissible to overcome the presumption of fraud upon the part of the circulator is withheld.
If it be said that defendants did not undertake to establish verity of the names excluded, the answer is that within the time allowed by this court it would have been impossible to do so. Hence, we have adopted a harsh rule in submitting the cause in the face of a showing of facts which render an intelligible determination impossible. Reasonable time should have been allowed in which to establish authenticity of the names included *Page 52 in the fourth classification when the burden shifted to the defendant.
In a number of instances it is indicated by chirography that the husband signed for his wife, or that the wife signed for her husband — as "John W. Brown," followed by "Mrs. John W. Brown." In the Hargis case it was held that one person could not sign for another. I do not wish in any degree to impair that determination or to recede from it. In the instant case the excluded names are not confined to cases covered by the illustration. The rule of exclusion is applied to all other names on the petition counterpart, including those who personally signed and who were in all respects qualified. The gravamen is that the party who secured the names (not knowing a man could not sign for his wife, or a wife for a husband) certified the signatures as genuine. I do not insist here that as to the Browns either name is valid. What I do object to is the holding that a false affidavit (though innocently made) is no affidavit at all, and that seven thousand electors are to be denied the right to vote on the issue — this through invocation of a rule new in this jurisdiction which has the effect of making the presumption of fraud conclusive. By this construction the circulator of a petition who innocently commits an error is placed in the category with election officers who deliberately prostitute the ballot.
Much might be said concerning poll tax lists filed as exhibits to the depositions of plaintiff's witnesses. In certain instances the printed lists are not certified by the collector or the county clerk. In other instances the clerk alone certified, while in still other instances certificate of the collector shows that time for paying poll taxes had expired when the list was verified. Therefore, it could not have contained late payers. There are certificates which do not show whether payments were made within the time prescribed by law, or for what year assessments were made.
It is my view that the certificates should include a recitation of facts essential to qualification. Some of the certificates are perfect examples of accuracy. But, since the majority opinion is not predicated upon illegal *Page 53 poll tax payments, it is unnecessary to extend a discussion of these alleged irregularities. If given time it is probable plaintiff would have been able to authenticate many of the exhibits, thus passing the burden to defendants.
My dissent goes to action of the court in holding that an irregular affidavit was no affidavit and in following this statement with the declaration that a fraudulent affidavit loses its presumption of verity. I readily agree with the last conclusion, but not with the former as applied to the circumstances of the instant case.
My dissent also goes to the action of the court in not directing that the cause be fully developed.
Mr. Justice HUMPHREYS concurs in this dissenting opinion.