Specially Concurring. — The statement of Mr. Chief Justice Burnett covers all of the material issues.in this case, and with the final conclusion there reached I fully concur, but upon other grounds than those stated in his opinion.
I do not believe that the certificates of the notaries public or county clerks are the only evidence which entitles a measure to go upon the ballot, but only such evidence as in the absence of a showing to the contrary authorizes the Secretary of State to file the petition and cause the measure to be printed upon the ballot. This is the clear meaning of Section 4098, Or. L.
By requiring (1) the affidavit of the circulator and (2) the certificate of the clerk or of a notary public as to the qualifications of a signer, it is clear that in the absence of those there can be no presumption that a signer of a petition is a legal voter. As the law has required proof of this point for the information of the Secretary of State, and prescribed that these affidavits and certificates shall be necessary to authorize the Secretary of State to determine whether or not a signer is a legal voter, it follows logically that in the absence of these, that officer has no right to assume or presume that merely because a person has signed his name to a petition he is legally qualified to vote. On the contrary, it is his duty to assume that an uncertified petitioner is not *516a voter, and to refuse to count Ms name as a petitioner.
I therefore have no hesitation in saying that when a petition complying substantially in form and certification with the requirements of the statute and not having any indication of fraud or falsity on its face, is presented to the Secretary of State, that officer is not required or even permitted to inquire dehors the petition as to its genuineness or as to the truth or falsity of the certificate. He must file the petition and act upon it, unless objection as to its genuine character is presented as required by Section 4098, Or. L. (Olson’s Comp.). That portion of the section here applicable reads as follows:
“On a showing that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure.”
As shown by the opinion of the Chief Justice, the complaint here is predicated principally upon the fact that 8,398 names upon said petitions were not certified to be upon the registration lists, but bore only the certificate of certain notaries public to the effect that they respectively were personally acquainted with each of the electors whose signature was affixed to the petition and that such notary knew of his own knowledge that each was a legal voter, etc. Thereupon follows the allegation that:
“None of the notaries public, at the time of making his or her aforesaid certificates, was personally acquainted with any of the alleged electors whose names were signed and so certified by him or her on any single sheet of signatures of said initiative petition to be legal voters, and to whose names, residence, postoffice address, and qualifications as legal voters he or she so certified; that none of said notaries *517public knew at the aforesaid time of certifying his or her own personal knowledge, or at all, that any of said alleged legal voters and electors whose names were pretended to be signed on any single sheet and certified to by any of said notaries public was a legal voter of the State of Oregon and of the county of Multnomah, and that no one of said notaries public had any actual acquaintance with or knew, or had any personal knowledge, at the time of making any one of said certificates that any of the persons whose legal qualifications as a voter he or she certified as a notary public on any one of said sheets had actually resided in the State of Oregon for six months immediately preceding said signing or certifying, nor had he or she_ any actual or personal knowledge of the actual residence or postoffiee address of any of the persons whose names purported to be signed on said petition, and were so officially certified by him or her to be legal voters of the State of Oregon; that no one of the said notaries public before or at the time of making his or her notarial certificate as above alleged had any other personal acquaintance or actual knowledge of the residence or postoffiee address and citizenship, or qualifications for citizenship, of any of the signers on any one of his or her said notarial certificate sheets than was gained by said notary public in the process of soliciting the signatures of said signers on the public streets of the City of Portland, often during the rush of business hours, and that such knowledge as said notary public had on which to base his or her certificate was no more than the usual answer of said alleged signer to the circulator’s question: ‘Are you a citizen and will you sign this petition?’ That in all such cases the circulator and the notary public making said certificate was one and the same person; and that said notaries public as circulators obtained signatures of the alleged legal voters on the aforesaid petition at the rate of from 100 to 300 per day.
“That defendant did not know at the time of receiving said petition, and had no means of knowing whether the aforesaid certificates of said notaries public, or any of them, were true or false, but that *518in the performance of defendant’s legal duties as Secretary of State defendant was and will be obliged to accept said certificates as true and to file said initiative petition, unless otherwise ordered by this honorable court, although in truth and in fact the said certificates of said notaries public and each and every one of them was false and fraudulent, and defendant was thereby deceived; that, in fact, said initiative petition is not signed or subscribed to by more than five thousand and fifty (5,050) of the legal voters of the State of Oregon, after eliminating therefrom the alleged signatures of the alleged legal voters certified to by the said notaries public, and that for the reasons in this amended complaint set forth, said petition is not legally sufficient for an initiative petition nor for official certification by defendant to the county clerks of the several counties of the State of Oregon, nor for printing on the official ballot of said counties for submission to the legal voters of the State of Oregon at the regular general election to be held on the first Tuesday after the first Monday in November, 1922, or at any other election; that defendant was deceived by said false certificates of said notaries public as to the qualifications as legal voters of eight thousand and three hundred and ninety-eight (8,398) of the alleged signatures written on said initiative petition, and defendant believed said signatures to be written and certified to by said notaries public, and because of his belief in the truth of said official certificates defendant considered and counted as genuine signatures of legal voters of the State of Oregon the whole number of eight thousand and three hundred and ninety-eight (8,398) signatures so certified by said notaries public, in addition to the said five thousand and fifty (5,050) signatures so certified by said county clerk of Multnomah County; and that unless restrained by order of this court said defendant will officially _ certify the title and numbers of said initiative petition to the county clerks of the State of Oregon, and they will cause the same to be printed upon the official ballot, to be voted on and improved or rejected by the legal voters of the State of Oregon at said general election.”
*519The defendant answered by a general denial and npon the trial the allegations of the complaint were fully established. The court entered a decree enjoining the defendant from certifying the measure so as to enable it to go upon the ballot, from which decree the defendant appeals.
The object of the law is to enable legal voters to initiate a measure, and the provisions respecting the proof necessary to show the right of such voters to take part in placing a measure upon the ballot are for the •protection of the public, to the end that no measure not initiated by five per cent of the legal voters shall be foisted upon the ballot. In substance, it prescribes what shall in the first instance be prima facie evidence to the Secretary of State of those facts which require him to place the measure upon the ballot, but in its solicitude for fairness in elections the law goes further and provides for a hearing before the court, in which the truth of the prima facie showing made to the Secretary of State may be inquired into, and the ultimate fact, the voting capacity of the signers, determined.
In a proceeding of the character last mentioned, the actual qualifications of the signers are to be determined. It is not, in such a proceeding, a question as to what the formal showing before the Secretary of State amounted to in fact, if it was sufficient in form. The Constitution permits any legal voter, whether registered or unregistered, to sign an initiative petition and neither the state nor any citizen of the state is injured by the fact that a voter possessing all the necessary qualifications has not been-shown to have possessed them by the technical proof required by the statute. Somewhere along the line it should appear either by direct allegation or necessary implication that the signers were not in fact *520legal voters, and in this respect the complaint is at least indefinite. The only allegation that may be construed as referring to the qualifications of the signers is contained in these words:
“Although in truth and in fact the said certificates of said notaries public and each and every one of them is false and fraudulent and defendant was thereby deceived.”
I am inclined to believe that in the absence of a demurrer or motion to make more definite and certain, this allegation will be sufficient after trial to sustain a decree.
The ultimate fact to be proved by the certificate was that the signers were legal voters. This was required to be proved by the personal knowledge of the notary. This personal knowledge is the reason given for the conclusion reached by the notary; and an allegation that the certificates were “false and fraudulent” and that the Secretary of State was deceived thereby might after trial without objection to the sufficiency of the complaint be taken to include not only an allegation that the notaries were ignorant as to the qualifications of the voters, but that they falsified in the substantial representation that the signers were legal voters. The parties went into court and tried the case upon the theory that the complaint was sufficient in this respect, and the court should go a long way and invoke every reasonable intendment to uphold the sufficiency of a complaint which was not objected to before decree. Taking this view, the case stands in this position: The defendant came into court armed with the presumption created solely by the notarial certificates, that the signers were legal voters. It was the duty of plaintiff at the outset to rebut this presumption by showing that the certificates were in fact false, and this was done *521by showing as rotten a fraud as ever was attempted upon the electorate. It was shown that the notaries practically knew nothing of the qualifications of the .voters and that in some instances the certificates were appended before the petitions were circulated. In fine, the integrity of the certificates and their value as evidence were destroyed and the presumption of qualification of the signers swept away, leaving the persons who presented the petitions without any proof or presumption that they were legal voters. In the absence of such proof and in view of the statute requiring the same before the measure is entitled to go upon the ballot, the presumption is that the signers are not legal voters.
The relator, having impeached the certificates and destroyed their vitality as evidence, is not required to go further and produce specific proof as to the lack of qualifications. This was substantially the holding in State ex rel. v. Olcott, 62 Or. 27, 285 (125 Pac. 303), in which we said:
“In addition to these, we find that the petitions circulated by Thurber, Mathews, Dirk, Wolwein, and Rahles, alias Wallace, contain such evidence of forgeries, perpetrated either by the circulators, or with their connivance, that the prima facie ease made by the affidavits of these circulators in favor of the genuineness of these petitions is overcome, putting the burden of proof upon the defendant to establish the genuineness of each signature; and, as this has not been done, we reject all the signatures on these petitions, amounting in the aggregate to 1,183 names, although it is probable that many names on such petitions are genuine.”
There is another ground upon which the decree of the Circuit Court should be affirmed, and that is that whenever it appears to the court at any stage of the proceedings that the real object of a party who *522is invoking its aid in the perpetration of a fraud, and that the court’s assistance is desired to enable him to do an illegal act, the court will sua sponte deny him relief.
There is presented here a case in which the agents of the petitioners are seeking by means of false certificates to deceive the Secretary of State into putting a measure upon the ballot. It was not a mere mistake on their part, for in State ex rel. v. Olcott, supra, we had defined fully the requisites of a valid petition, and in State ex rel. v. Port of Bayocean, 65 Or. 506 (133 Pac. 85), we had expressly condemned the practice of certifying the residence of a voter on the strength of a mere introduction supplemented by the representations of the signer, so that the circulators and certifiers of these petitions are apparently “sinners against light and knowledge,” and the highest considerations of public policy indicate that when they come here with an appeal, of which the favorable result would be to enable them to get a proposed measure upon the ballot by fraudulent means and false certificates, we should promptly and summarily dismiss their appeal.
This case differs from the other case of State ex rel. v. Kozer, presented with it, in many respects. Although the allegations in the complaint in that case in regard to the qualifications of voters were equally indefinite, there the defendant raised a proper and timely objection by a motion to make the complaint more definite and certain, and upon plaintiff’s refusal to comply with the order of the court, the complaint was. dismissed, and properly. Here there was no objection to the sufficiency or definiteness of the complaint, and in addition, in the other case the petitioners had no control over the county clerks who, it was alleged, had certified to the genu*523ineness of the names on the petitions involved there, and eonld not in any way be held accountable for their negligence.
The appeal should be dismissed and the decree affirmed.
Brown, J., concurs in this opinion.