State ex rel. Case v. Superior Court

Gose, J.

(dissenting) — The majority opinion is predicated upon what I conceive to be two fundamental errors. First, that the certificate of the certifying officer, if it substantially conforms to the requirements of the statute, has absolute verity and finality; and second, that neither the secretary of state nor the courts have the power to purge the petitions of fraudulent signatures.

Both the secretary of state and two trial judges, after an exhaustive and painstaking examination of the petitions (the latter aided by an expert in handwriting), have found that the petitions are honeycombed with fraudulent signatures. With these signatures eliminated, most of the petitions are short of the number required by the constitution to place them before the people, and yet the majority say, in effect, that a fraudulent petition is cleansed of its sins if properly certified, and that the people are without recourse other than to enforce the penal provisions of the statute. I cannot acquiesce in so monstrous a doctrine. In its last analysis, it means that one man can collude with a certifying officer, if he can find one sufficiently corrupt, write sufficient names upon the petition to satisfy the mandate of the constitution, have it certified, and that neither the secretary of state, who is charged with expending the public money in placing the measure before the people, nor the courts, may go behind the return and proclaim and condemn the fraud. It is a rule of universal application that an interpretation of a statute which leads to absurdities should be avoided. As was aptly said by Judge Claypool in an opinion filed in the court below, “People who propose to make new laws are not wronged by being required to observe the laws already in existence.” Fraud in the initiation of a law to be submitted to the people is as ugly and unclean as fraud in a contract, and all courts hold that a contract conceived in fraud may be avoided by the party who has been defrauded. The parties who have been defrauded in the case at bar are the taxpayers from whom the money has been taken to place before the people an initia*655tive measure which is short of the constitutional number to authorize it to be submitted, except by counting the fraudulent signatures.

Recurring to the constitutional amendment which authorizes the initiative and referendum (Laws 1911, p. 136, § 1, subd. a) we find that “ten per centum, and in no case more than fifty thousand, of the legal voters shall be required to propose any measure by such petition.” Subdivision d provides that “this section is self-executing, but legislation may be enacted especially to facilitate its operation.” To facilitate its operation how? Obviously by requiring all petitions to be signed by the constitutional number of legal voters. The number of legal voters fixed by the constitution for placing an initiative measure before the people for adoption or rejection is an express limitation upon the power to legislate by the initiative.

The legislative branch of the government has appropriated $300,000, or as much thereof as may be necessary, to be used by the secretary of state in paying the expenses of “clerk hire, postage, transportation and printing necessarily incurred in carrying out the provisions of the statutes with reference to the initiative and referendum and the recall of elective public officers of the state.” Laws 1913, p. 417.

Laws 1913, p. 418, prescribes the method of initiating and submitting proposed measures to the people. Section 8 provides, among other things, that petitions for circulation in nonregistration districts may be certified by “justice of the peace, road supervisor, member of a school board or a postmaster, to the effect that he resides in the precinct, naming it, and is acquainted with the legal voters thereof and that he believes the signatures opposite which he has written his initials are the signatures of legal voters of such precinct.” Section 11 provides that when the “signatures of legal voters” equal to the minimum number fixed by the constitution have been obtained, the petition may be submitted to the secretary of state for filing in his office. Section 12 provides that the secretary *656of state, upon any such petition being submitted to him for filing, shall “examine the same, and if upon examination said petition appear to be in proper form and to bear the requisite number of signatures of legal voters,” shall “accept and file” the same if presented within the time limited by the statute. Section 13 provides for a review by the court if the secretary of state shall refuse to “file any such initiative or referendum petition when submitted to him for filing.” It further provides that, upon final hearing, if the court shall determine that the petitions are “legal in form and apparently contain the requisite number of signatures, and were submitted for filing within the time prescribed in the constitution,” it shall require the same to be filed by the secretary of state as of the date of its submission. It further provides that the decision of the superior court may be reviewed by this court upon a writ of certiorari, and that if the supreme court shall decide the petitions are “legal in form and apparently contain the requisite number of signatures of legal voters, and were filed within the time prescribed in the constitution” it shall require the secretary of state to file the petition. Section 15 provides that, after the petitions have been filed, the secretary of state shall forthwith, in the presence of at least one person representing the advocates and one person representing the opponents of the proposed measure, should either desire to be present, proceed to “canvass and count the names of certified legal voters” on such petition; that if he finds the same name signed to more than one petition he shall reject both names from the count, and that if, at the conclusion of the “canvass and count,” it shall appear that such petition bears the requisite number of names of “certified legal voters,” the secretary shall cause the same to be submitted to the people in the method provided by the statute. Section 17 provides that any citizen who shall be dissatisfied with' the determination of the secretary of state that the petition “contains or does not contain the requisite number of signatures of legal voters” may apply to the superior *657court of Thurston county for a citation requiring the secretary to submit the petitions to the court for examination. It further provides that the decision of the superior court may be reviewed by this court upon a writ of certiorari. We have italicized portions of the statute for the purpose of emphasizing the legislative intent.

When these several sections are read in the light of the constitutional mandate fixing the minimum number of signatures which shall authorize an initiative measure to go before the people, the view is compelling that the legislature intended to devolve upon the secretary of state the duty of expunging fraudulent signatures. Recurring to the provisions of § 8, it will be remembered that, in nonregistration districts, the officer named is only required to certify that he is acquainted with the legal voters of his precinct, “and that he believes the signatures” to be the signatures of legal voters of the precinct. It was apparent to the legislature that, in most instances, the certifying officer in such precincts could not know the signatures of one per cent of the electors residing in his precinct. In view of this fact, it seems preposterous to assume that the legislature intended to give finality to such a certificate. It may be said in passing, that most, if not all, the fraudulent signing occurred in non-registration precincts. If the majority view is correct, §§15 and 17 of the law, to which I have adverted, accomplish no practical purpose. If the legislature had intended what the majority say it intended, it would have provided that the secretary of state should, upon the presentation of the petitions, examine them, first, to see that they had the requisite number of signatures, second, to see that they were certified in substantial conformity with the statute, and third, for duplications, and if, after eliminating the duplicate signatures, there remained enough names properly certified to meet the mandate of the constitution, he would have been required to file the petitions and take the requisite steps to submit the measures to the people. With the ma*658jority view, it was useless for the legislature to require two counts and to provide for two reviews by the court. It seems to the writer that the purpose of the legislature is apparent. In the first instance, before the filing, the secretary of state was merely required to make a cursory examination to ascertain if the petition appeared to be in proper form and appeared to bear the requisite number of signatures of legal voters. If it did, it was his duty to file the petitions. In such case, if he refused to file the petitions, the court, upon proper application, ' simply determined whether the petitions were legal in form and apparently contained the requisite number of signatures. I adopt the view of the majority as to the meaning of the word “canvass;” that is, that it means to “scrutinize, examine, determine” whether the petition contains the requisite number of legal voters regularly authenticated; not as the majority assume, the number of “certified legal voters,” so authenticated. If this interpretation is not sound, why did the legislature change from the words “appear to be in proper form and bear the requisite number of signatures” in § 8 to the words “canvass and count” in § 15 ? I think the legislature intended, in the light of the constitution and the statute as a whole, to require the secretary of state to determine whether the petitions were signed by the requisite number of legal voters, which carried with it the power, not only to expunge duplicate signatures, but fraudulent signatures as well.

This view is in harmony with the decisions of this court as I read them. I think the majority have misconstrued our decisions in county seat and other like cases. In Mann v. Wright, ante p. 358, 142 Pac. 697, a county seat case, we said:

“It will appear from a reference to these cases that we have held the submission of a proposition to change a county seat to be a political or a public question; that, in the absence of a statute giving the courts jurisdiction of such matters, the courts will not interfere with the determination of *659(the board of county commissioners where the order of submission is fair upon its face, except in cases of fraud or arbitrary action such as was present in the Rickey and Krieschel cases.”

In State ex rel. King v. Trimbell, 12 Wash. 440, 41 Pac. 183, relied upon in the majority opinion, this court said, in reference to the duty of canvassing boards:

“That the duty of canvassing boards is purely ministerial and confined to tabulating and ascertaining the result of an election as shown by the face of the returns properly made out by the "election officers is well established upon both reason and authority.”

These petitions were not fair upon their face. A most casual inspection will show that in many instances one person signed two or more names. This is not only apparent from an inspection, but the fact that names were so signed was shown by the expert witness in the court below, and not met by the adverse party.

In State ex rel. Chealander v. Carroll, 57 Wash. 202, 106 Pac. 748, the relator filed in the office of the city comptroller a written declaration of his candidacy for a public office, in harmony with the direct primary law. The comptroller refused to recognize him as a candidate, or to cause his name to be placed on the ballot. The relator sought to compel the comptroller by mandamus to place his name on the ballot. There was no statute or charter provisions authorizing the comptroller to inquire into the eligibility of a candidate for public office who had filed his declaration of candidacy. The primary law limited the right to file a declaration of candidacy to those persons “who shall be eligible,” to the office sought. After adverting to the fact that the comptroller was charged with the expenditure of public money, we held that he had a right to inquire into the eligibility of a candidate, and that where the act to be performed involved, as it did there, the expenditure of public money, his duty to inquire had “almost the form of a mandate.”

*660The findings of the secretary of state, an administrative officer, upon questions of fact are final except for fraud, and no fraud or arbitrary action is claimed. Indeed, it is admitted that the secretary acted in the utmost good faith. Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5; Doty Lumber & Shingle Co. v. Lewis County, 60 Wash. 428, 111 Pac. 562, Ann. Cas. 1912 B. 870; Blumauer v. Mann, 72 Wash. 429, 130 Pac. 491.

We have uniformly held that a public officer will not be compelled to do an illegal act. State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462; State ex rel. Gorman v. Nichols, 40 Wash. 437, 82 Pac. 741; State ex rel. Baker River & S. R. Co. v. Nichols, 51 Wash. 619, 99 Pac. 876; State ex rel. Socialist Labor Party v. Nichols, 51 Wash. 79, 97 Pac. 1087.

In State ex rel. Hill v. Olcott, 67 Ore. 214, 135 Pac. 95, 902, a referendum case, the court emphasized the fact that no attack was made upon the genuineness of any signatures. In holding that the statute put the duty upon the secretary of state to determine whether the signatures were genuine and regularly authenticated, the court said that, in view of the fact that the genuineness of the signatures was not questioned, the secretary of state was justified in fifing the petition, and that it was “much influenced in this conclusion by the fact that it is the duty of the defendant (the secretary of state) in his official capacity, to determine in the first instance by an inspection of the petition whether the signatures are genuine and are regularly authenticated.” A like principle was announced in State ex rel Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689. In In re Initiative Petition No. 23, 35 Okl. 49, 127 Pac. 862, it was held that such petitions are presumptively valid, and that this presumption can only be overthrown by proof of fraudulent, arbitrary, or other unlawful conduct in securing signatures. We are in hearty accord with this view. The petitions came before the secretary of state presumptively valid, but the law put the *661duty upon him to ascertain, in so far as he could, whether the signatures were genuine, and whether they were certified in substantial conformity with the statute.

I cannot agree with the majority in its view that § IT of the act limits the trial court and this court to a review of the errors committed by the secretary of state. It seems to me that this view entirely overlooks the language of tbiis section. At the expense of repetition, I again quote its provisions :

“Any citizen who shall be dissatisfied with the determination of the secretary of state that the petition contains or does not contain the requisite number of signatures of legal voters may . . . apply to the superior court of Thurs-ton county . . . for a writ of mandate compelling the certification of the measure and petitions . . . which application . . . and all proceedings had thereunder, shall take precedence over other cases, and shall be speedily heard and determined.”

The inquiry is, What shall be speedily heard and determined? The answer is found in the statute itself; that is, whether the petition “contains or does not contain the requisite number of signatures of legal voters.” My view is that the superior court is bound by the decision of the secretary of state on questions of fact, in the absence of fraud, to the same extent that it is bound by the findings of the public service commission, by the board of equalization, or by any other quasi judicial or administrative officer. If this view is not correct, then the superior court proceeds de novo, as was held in the Oklahoma case, and may determine the facts as in any other case. The superior court is a court of general jurisdiction, and when it takes cognizance of a case it takes it for disposition conformably to the statutes of the state and the general law. If it be a sound interpretation of the statute that the words “certified legal voters” mean all names certified to be legal, then it follows that the legislature had a purpose in omitting the word “certified” in § IT, and that purpose was to put the duty upon the superior court to determine whether *662a given petition in fact contained the requisite number of signatures of “legal voters.”

I find no evidence in the statute of an intention to give finality to the certificate of the certifying officers. If the statute is reasonably susceptible of that interpretation, then, in my opinion, it would clearly be unconstitutional, because a dissatisfied citizen, at some time and some place, has the constitutional right to have it determined whether the petition contains the requisite number of names of legal voters as fixed by the constitution before the initiative measure may be submitted to the people.

In conclusion, I think, first, that the certificate of the certifying officer only presumptively gives validity to the signatures; second, that it was the duty of the secretary to purge the petitions of all fraudulent signatures; third, that his findings upon questions of fact, in the absence of fraud or arbitrary action, are conclusive; fourth, that if this interpretation be unsound, the statute in terms confers this power upon the superior court of Thurston county; and fifth, that, if it did not, the superior court of Thurston county, being a court of general jurisdiction, when it took cognizance of the case, had the power to take evidence upon the question of fraudulent signatures, and expunge from the petitions all signatures which it found to be fraudulent.

For these reasons, with great respect to the opinion of the majority, I dissent.