dissenting:
A petition to submit tbe question contemplated by the local option act is a jurisdictional prerequisite.- Without such petition, sufficient on its face as to form and signatures, the cleric has no- authority to order the question submitted of whether or not a designated political subdivision shall become “anti-saloon territory”; and where the statute on the subject prescribes the form of the petition and what it shall contain, it must be exactly followed in all particulars. — Blade on Intoxicating Liquors, § 93; 23 Cyc. 96.
No. presumption can be indulged in favor of such petition. It must exhibit on its face what the statute requires shall thereby be made to affirmatively appear.-r — Talley v. Grider, 66 Ala. 119. Our statute prescribes the form of the petition, and requires that, opposite the name of each one signing it, his or her residence address shall be written, and also the date the signature was appended. The statute further provides that “no signature shall be valid or be counted in considering such petition unless these requirements are complied with, and unless the date of signing is not more than ninety (90) days preceding the date of filing the same. ’ ’ The statute also provides that the number of signers shall not be less than a fixed per cent, of the total vote in the political subdivision named cast at the last preceding general election therein.
There is a reason for these requirements. None but qualified electors of the territory in which the question is to be submitted can sign it. The statute prescribes the heading to the petition, which must recite, in substance, that the undersigned qualified electors of a designated political subdivision petition that the question of “Shall the subdivision named *359become ‘anti-saloon territory’1?” be submitted to the electors of such territory. It was not regarded as sufficient that the beading be to the effect that the signers were qualified electors of the subdivision named, but, in addition, there must be written opposite each signature the residence address of the person so. signing. This had a double purpose: (1) To show affirmatively, for the information of the clerk, that each person so signing is an actual and bona fide resident of the subdivision named in the heading to the petition; and (2), by giving the residence address in the manner' prescribed, an opportunity is afforded all interested to ascertain whether or not there is such person, or whether or not he is a qualified elector of the subdivision involved, and thus determine whether the petition was signed by the requisite number entitled to sign it. It will not do to say, in the face of the express provisions of the statute on the subject, that by writing opposite a signature a street number, or the number of a section, and nothing more, that thereby it appears by intendment, because of the heading, that the person opposite whose name such an address is written is a resident of the subdivision designated in the heading. The plain provisions of the statute inhibit inT dulging in any such presumption. No. .530 Gay Street, or Section 33, may be in some other city, or in some other totally different territory, than that mentioned in the heading. Of course, it may be in the territory described in the heading to the petition, but that is not enough. It must affirmatively appear, in the manner the statute prescribes, that it is. Suppose the statute had been complied with on' the subject under consideration by writing the residence address as it requires, and it appeared that any street number given in the petition was the num*360her of a street in the city of Boulder — it would certainly not he contended that the person opposite whose name such a residence address was written was qualified to sign the petition. To prevent the necessity of resorting to conjecture, to prevent fraud, and make it prima facie appear on the face of the petition that it is signed by the requisite number entitled to sign it, the statute intended that it should affirmatively appear, in the manner prescribed, that each signer was a qualified elector of the territory designated in the heading of the petition, to the extent of the number required.
The petition in the case at bar fails to show this, and so was wholly insufficient for the clerk to act upon, further than to refuse to receive it.
In the face of the statute requiring the residence address and dates of signing to be written, ditto marks are not a compliance with this requirement. If the statute had said such addresses and dates should be designated, there might be some force in saying that ditto marks could be employed in the way they were. Ditto marks mean the same as that immediately preceding them. But where the statute says residence addresses or dates shall be written, it means that they shall be designated by such letters and characters as will indicate them of themselves, and not by reference to something preceding.
There is also a reason why the date any signature is appended should be written, because no signature can be counted which was appended more than ninety days preceding the daté the same was filed with the county clerk; hence, it becomes important that the date should be designated in a manner which speaks for itself, and not by reference to- something else.
The affidavit referred to in the main opinion does not cure the defects of the petition. The stat*361ute requires that the affidavit shall' state that the signatures on the sheet to which it is appended are genuine; that, to the best knowledge and belief of the affiant, the persons so signing it were, at the time of so doing, qualified electors of the subdivision involved ; that their respective residences are correctly stated therein; and that each signer signed the same on the date set opposite his name. It is only when an affidavit containing these statements is made and attached to a petition which conforms to the law that the petition becomes prima facie evidence that the signatures, statements of residence, dates, and so on, are genuine and true, and that the persons signing are qualified electors of the political subdivision named; but when the petition to which such an affidavit is appended is wholly insufficient by reason of its failure to properly designate the residence addresses and dates when signed, the affidavit adds nothing to what the petition itself must show, because the affidavit can only make the petition prima facie evidence of what the statute says it shall exhibit.
The law, as written, should be observed, otherwise it is of no benefit.' Its mandate should not be avoided by a construction which is clearly contrary to its provisions. The judicial has no authority to say to the legislative department that the laws which it- has enacted mean something different from that which, in clear and unmistakable terms, they express.
Inasmuch as the petition is wholly insufficient for the reasons stated, it is unnecessary to express an opinion on the question of whether or not the limitation imposed by section 9 of the local option act has any application.
The judgment of the district court should be reversed.