The I. R. Amendment was designed as a prod when the General Assembly is inert, and as a restraint when it is thought the General Assembly has been improvident; but its great and useful powers may be abused unless the persons seeking to invoke its powers are required to comply with its provisions regulating the conditions under which these powers may be employed.
It was pointed out in the opinion in the case of Sturdy v. Hall, Secretary of State, 201 Ark. 38, 143 S.W.2d 547, that slightly more than one-half of one per cent. of the State's population may initiate an Act, and that slightly less than one-half of one per cent. may arrest legislation passed by the General Assembly through the referendum power, and that less than one per cent. may propose constitutional amendments. It was there pointed out that there was no limitation upon the number of Acts which might be initiated, nor upon the number of legislative Acts which might be referred, nor upon the number of constitutional amendments which might be proposed, and that it was, therefore, possible for this small per cent. of our population to assemble the electorate of the State at each election into a legislative assembly, and at the same time as a constitutional convention.
At the 1936 general election, three constitutional amendments were submitted. This number was increased to nine at the 1938 general election, and there were seven at the 1940 election. At these three elections, nineteen amendments to the constitution were proposed, to say nothing of numerous legislative acts initiated and referred. The practice of disregarding the General Assembly *Page 793 is growing. The General Assembly meets every two years, and has the power to propose as many as three constitutional amendments, and may pass an indefinite number of acts after bills therefor have been considered and debated in each house and have been subject to amendment in both houses. The elector has five minutes in the election booth in which to vote upon all the questions there submitted and the various candidates for office. Section 4770, Pope's Digest. It was, therefore, said in the Sturdy case, supra, that "The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the constitution conferring these powers should be required."
These powers may be exercised only by the qualified electors of the state. The I. R. Amendment expressly so provides, and each elector must act for himself, and not for or through another, and he acts by signing a petition for the submission of a constitutional amendment or the initiation of a legislative act or for the reference of a legislative act.
We said in the case of Hargis v. Hall, Secretary of State, 196 Ark. 878, 120 S.W.2d 335, that "The amendment contemplates that signatures must be genuine. That purpose is so expressed. By the amendment's terms, laws may be enacted `prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices in the securing of signatures or filing of petitions. The amendment repealed such parts of the act of 1911 as were in conflict with its purposes; but, as Judge Hart has so clearly stated, the use of language in Amendment No. 7 entirely repealing the former amendment, but limiting repeal of the statute of 1911 to such portions as were in conflict with Amendment No. 7, is conclusive of the proposition that those who wrote the new amendment recognized certain values in the act of 1911, and that it was their purpose to utilize these values in administering the amendment. We hold, therefore, that the statutory inhibition against a person signing any name other than his or her own to an initiative petition is not in conflict with or repugnant to Amendment No. 7, *Page 794 and it was not repealed. But even without such statute, we think the amendment, by its own terms, contemplated that the genuine signature of electors be procured."
This holding was expressly reaffirmed in the Sturdy case, supra, where we said: "The circulator of a petition is of the nature of an election official. The elector directs, by signing the petition, that the proposed act shall be submitted to the people, and he must sign his own name, as held in Hargis v. Hall, supra, and he must do so in the presence of the circulator of the petition, in order that the circulator may truthfully make the affidavit required by both the constitution and the statute. In many instances no one is present except the circulator of the petition and the signer, and when the circulator makes the required affidavit, the prima facie showing has been made that the elector signed the petition."
No one has any more right to sign the name of another to one of these petitions that he would have to vote for that other person at any election, and if he does so he commits an illegal act, however fully authorized his action may have been by the person for whom he signed or for whom he voted.
It is conceded that there are several thousand names on these petitions in the instant case which, under the undisputed testimony in the case, may not be counted. The largest number of this group consists in the signatures of persons who are not qualified electors, through failure to pay poll tax, and there are 3,680 names in this group alone. But if all these are stricken from the petitions, there remains the requisite number of signers, provided all the remaining names are counted.
But it further appears from the testimony without dispute that there are 210 names on the various petitions written by some one who had signed some other name.
In a majority, but not in all of these cases, a husband had apparently signed his wife's name, or a wife had signed her husband's name. These signatures are unauthorized, because each person must sign his or her own name. NOW, merely striking these names would still leave the requisite number of signers; but it is insisted that *Page 795 all names on all petitions in which these wrongful signatures appear must be stricken for reasons later to be discussed. It is conceded that if this be done, the petitions do not contain the requisite number of signers. The controlling question in the case is, therefore, whether all these names shall be stricken.
In the Sturdy case, supra, we stated the rule announced by textwriters, and approved by the decisions of this court, there cited, applicable to election contests. It is to the following effect. If one casts an illegal or fraudulent ballot, his fraud vitiates his own ballot only, unless it be shown that the election officials connived at and were parties to such fraudulent voting, in which latter event the certificate of the election officials as to the result of the election is without verity and will be disregarded, "even though the fraud discovered is not, of itself, sufficient to affect the result." The reason for this rule, as stated by Judge McCrary, in his great work on Election, (4th Ed.) 574, which this court has approved in the cases cited in the Sturdy case, supra, being ". . . that an officer who betrays his trust in one instance is shown to be capable of the infamy of defrauding the electors, and his certificate is, therefore, good for nothing."
We said in the Sturdy case, supra, that where the circulator of a petition, who is the sole election officer, is shown to have made a false affidavit, the petition to which that affidavit is attached has lost its prima facie verity, and in such case no names could be counted appearing on this petition to which a false affidavit was attached, unless it were otherwise shown that there were valid signatures on the petition.
This must necessarily be true if the mandatory provisions of the constitution and its enabling act designed to prevent fraud are to be given effect.
Now, it must be remembered, as was said in the Sturdy case, supra, that "The I. R. Amendment provides that `No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions.' That compensation would be a *Page 796 matter of agreement between the contracting parties, and might, in some instances, although not in the present case, be based upon the number of signers obtained, and the law must be declared as it should be applied in any case. There would, therefore, be a constant temptation for the circulator of petitions to increase his compensation by loose practices in obtaining signatures. The constitution contemplated this possibility, and attempted to guard against its consequences."
It is insisted in the brief for defendant, and was strongly urged in the oral argument before the court, that the parties here are among the state's best citizens, and are endeavoring to promote public morality. This is conceded; but the same rule must be applied here that would be applied to an act initiated by a group less disinterested.
Section 13289, Pope's Digest, reads as follows: "Each and every sheet of every such petition containing the signatures shall be verified on the back thereof in substantially the following form, by the person who circulated said sheet of said petition by his or her affidavit thereon as a part thereof:
"State of Arkansas,
"County of ____________
"I, _____________, being first duly, sworn, state that (here shall be legibly written or printed the names of the signers of the sheet) signed this sheet of the foregoing petition, and each of them signed his name thereunto in my presence. I believe that each has stated his name, residence, postoffice address and voting precinct correctly, and that each signer is a legal voter of the State of Arkansas, _________________ county, or city or incorporated town of ________________.
"Signature ________________ P.O. _____________________
"Subscribed and sworn to before me this the ________ day of _______________________, 19__.
"Signature ____________________________ P.O. _______
"Clerk, Notary Public, or J. P. *Page 797
"Forms herein given are not mandatory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors."
It thus appears that the law requires the circulator to make affidavit that each petitioner signed his own name, and did so in the presence of the circulator. If, therefore, the circulator makes this affidavit after permitting one person to sign the name of another, he has made a false affidavit, however innocent his intention, and as was said in the Sturdy case, supra, such a petition loses the presumption of verity, and all the names appearing on such a petition would be stricken unless it were otherwise shown that certain signatures on the petition were valid and should be counted; but there is no such proof in this case. We cited in the Sturdy case, supra, opinions from the courts of other jurisdictions so holding.
Defendant's brief assails that opinion, especially with reference to our quotation from the case of Morford v. Pyle, Secretary of State, 53 S.D. 356, 220 N.W. 907.
It is insisted by defendant that the South Dakota opinion was based upon a statute unlike 13289, Pope's Digest, above quoted, in that the South Dakota statute requires a fuller certificate to be verified by the circulator of the petition than does our own statute, and requires the circulator to swear that the facts contained in his certificate are true, and not merely that he believes them to be true.
An analysis of our statute will show, however, that upon the vital point here at issue, our statute is not unlike that of South Dakota. Our statute requires the circulator to state only that "I believe that each has stated his name, residence, postoffice address and voting precinct correctly, and that each sigher is a legal voter of the State of Arkansas, . . ."
Concerning these facts just mentioned the circulator may state his belief that the signer gave his name, residence, postoffice address and voting precinct correctly, as he would have to depend upon the sigher for this information. But whether each signer had personally *Page 798 signed, and had done so in his presence, is a fact which he personally knows and does not depend upon information derived from the signer. The circulator is required to swear as a fact that the petitioner signed in his presence. He knows whether this is true or not, and however good his intentions may have been he committed a fraud in law when he swore to a fact not true. An affidavit conforming to 13289, Pope's Digest, appears as a part of each and all of the petitions filed in this cause. It will be observed that the affidavit is divided into two parts, and that a period separates the parts. In the first part the circulator is required to swear that the signer signed in his presence. A period completes that sentence, following which the circulator is permitted to swear that he believes that the signer stated his name, residence, postoffice address and voting precinct correctly. There is, therefore, no difference in essential respects between our statute and that of South Dakota, and the opinion of that court as to the effect of a false affidavit is applicable here, that effect being that all the names appearing upon a petition supported by a false affidavit must be stricken, and may not be counted.
The effect of these views is that the petitions do not contain enough names which may be counted to require the submission of the proposed act, and the writ of prohibition prayed should be granted.
I am authorized to say that Justices MEHAFFY and McHANEY concur in the views here expressed.