The statute in question says: "Each copy of any such petition before being filed must have attached thereto an affidavit to the effect that each signature to the paper appended is the genuine signature of the person whose name it purports to be, and that each such person is a qualified elector." I agree with the construction which the majority places upon the last clause of the above paragraph; that is, if it would save the constitutionality of the statute to hold that the affidavit that a signer is a qualified elector may be upon information and belief, it should be so held, because the facts upon which that conclusion would rest are necessarily facts of which the affiant could not well have personal knowledge or direct information. However, this does not apply to the requirement that the petition shall have attached an affidavit to the effect that each signature appended to the paper is the genuine signature of the person whose name it purports to be. Obviously, anyone circulating a petition and witnessing the signatures to it would have the necessary information to state positively that each signature attached to the paper is the genuine signature of the person whose name it purports to be. Hence, as I read the statute, there is here a legislative requirement that each person signing a petition must sign in such circumstances as to enable some other person to make a positive affidavit that his signature is genuine and further that he must rely upon such person to make such an affidavit in order that his signature or petition may become effective; *Page 10 either this, or the signer must himself make an affidavit as to the genuineness of his signature, in addition to stating his residence, his postoffice address, and date of signing, which affidavit must be attached to the petition. In my opinion, such a legislative requirement cannot be said to facilitate the operation of the constitutional provision securing the right to initiate measures, but on the contrary it would seem necsarily to hamper and restrict the exercise of the right. I agree that an elector when he becomes a petitioner may well be required to furnish reasonable prima facie proof of the lawful exercise of his right, but to require him to exercise it only in the presence of a notary public, or to make its exercise dependent upon the willingness of another to make an affidavit, does not seem to me to be a reasonable, facilitating regulation.
While differing in the respect indicated from the views of the majority, I nevertheless concur in the order denying the writ. The record here shows that there are barely enough names on the petition if all are counted. It also shows that the petitions are in such form that the secretary of state might well question their sufficiency upon other than the statutory grounds stated in his letter to the committee. He might reasonably require proof before accepting some of the names as those of petitioning electors. The constitution vests in the secretary of state the primary duty of passing upon the sufficiency of such a petition, and his action is rendered subject to judicial review in the supreme court. State Const. § 25. In my opinion, in view of the character of the petitions, a writ of mandamus should not be awarded at the instance of the committee for the petitioners without a clear showing that the petition is sufficient or that the secretary of state has adjudged it to be sufficient. The court should not in the first instance exercise the discretion which the constitution vests in the secretary of state.
I concur in the order denying the writ. *Page 11