Dissenting. — I am unable to concur in the opinion holding that the petition for an initiative measure regularly signed by th¿ requisite number of legal voters of the state and certified to in the form provided for by the statute, is insufficient for the reason that the notaries public who certified to a portion of such signatures did not personally know that the persons whose signatures they so certified to, had resided in the State of Oregon for six months, and were electors.
A petition with 13,448 names, stating that such signers are “citizens and. legal voters of the State of Oregon” in the form and certified as provided by statute was filed with the Secretary of State. . Five thousand and fifty of the signatures were duly certified by the county clerk of Multnomah County, and 8,398 of the signatures were certified in the form provided by statute, by certain notaries public.
In an attempt to challenge the sufficiency of the petition the plaintiff alleges in the complaint, that each of the respective notaries public who certified to the signatures was not personally acquainted with the persons to whose signatures he certified, and did not know of his own personal knowledge that any of the persons making such signatures “was a legal voter of the State of Oregon and county of Multnomah or that any of the addresses stated in said petition opposite any of such signatures was cor*524rect”; and that therefore snch notarial certificates were false.
There is an entire want of any allegation in the complaint that any of the petitioners were not qualified electors of the state and entitled to sign such petition. The main fact certified to by the notaries is that the electors whose signatures are affixed to the petition are legal voters. In order for a certificate to be shown to be false in substance, it must be asserted that the signers are not legal voters.
The Constitution of Oregon, Article IY, Section 1, provides that “not more than eight per cent of the legal voters shall be required to propose any measure by such petition.” The Constitution confers the right upon every legal voter of the state to sign an initiative petition. This constitutional right should not be abridged or abrogated by mere matter of form provided by the statute: Woodward v. Barbur, 59 Or. 70 (116 Pac. 101); State ex rel. v. Dalles City, 72 Or. 337 (143 Pac. 1127); State ex rel. v. Stewart, 57 Mont. 397 (188 Pac. 904). The Montana court holds that the legislature of Montana transcended its power in attempting to limit the right of the legal voters to sign an initiative petition. The qualification of signers to such a petition is, that the persons whose signatures are attached are legal voters of the State of Oregon. In order that only qualified electors should sign such petition, and as a means of proving such qualification, the legislature has provided a form of petition with a “Warning — It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or to knowingly sign his name more than once for the measure, or to sign such petition when he is not a legal voter”: Section 4096, Or. L.
*525Section 4096, Or. L., provides that each sheet of the petition shall be verified by the circulator to the effect every person who signs the sheet signed his or her name in “my presence; I believe * * that each signer is a legal voter of the State of Oregon and county of -.” This section directs that, in addition to the affidavit, the county clerk shall compare the signatures of the electors signing the same with the signatures of the “registration cards, books and blanks on file in his office; shall carefully examine said petition,” and certify the result to the Secretary of State. This section further directs:
“Every such certificate shall be prima facie evidence of the facts stated therein and of the qualifications of the electors whose signatures are thus certified to be genuine, and the Secretary of State shall consider and count only such signatures on such petitions as shall be so certified by said county clerk to be genuine; provided, that the Secretary of State shall consider and count such of the remaining signatures as shall be proved to be the genuine signatures of legal voters. To establish such facts, the official certificate of a notary public of the county in which the signer resides shall be required as to the facts for each of such last-named signatures. * *
“I,-, a duly qualified and acting notary public in and for the above named county and state, do hereby certify: That I am personally acquainted with each of the following named electors whose signatures are affixed to the annexed petition and I know of my own knowledge that they are legal voters of the State of Oregon and of the county written after their several names in the annexed petition, and that their residence and postoffice address is correctly stated therein, to wit: (names of such electors).
“ * * The forms herein given are not mandatory and if substantially followed in any petition, it shall be sufficient, disregarding clerical and merely technical error.”
*526It will be seen that the statute provides three forms in safeguarding the signing of such a petition by legal voters. These forms are not mandatory and clerical and technical errors should be disregarded The main question is: Are the petitioners legal voters? The forms given are to assist in ascertaining that fact. In a similar ease, State ex rel. v. Olcott, 67 Or. 214, 220 (135 Pac. 95, 135 Pac. 902), it was alleged that 4,861 signers on the petition were not registered voters and not valid petitioners. Mr. Justice Burnett there said:
“The Constitution does not require that petitioners for the referendum of a bill shall be registered voters. It has been settled by this court in Woodward v. Barbur, 59 Or. 70 (116 Pac. 101), that it is not essential that a petitioner for the referendum or initiative of a measure shall be a registered voter. If it be true that the petitioner is a legal voter, he is competent to sign such petitions(Italics by writer.)
We also find in that opinion referring to the signing of the petition twice, the following language:
“No testimony is given on this point and we are left wholly to inspection of the petition to determine the question. It is made a crime by the statute for a person to intentionally sign a referendum petition twice. It is presumed that a person is innocent of a crime or wrong, and likewise identity of person, is presumed from identity of name: Section 799, subds. 1, 25, L. O. L. These presumptions are of equal weight under the statute and in this instance would balance each other, so that, if the plaintiff upon whom the burden of proof rests would prevail, some other testimony must be produced to show that in fact the same person in the instances mentioned signed the petition more than once.”
In addition to the procedure referred to, when such a petition regular upon its face, contains a sufficient *527number of signatures of those who declare themselves to be leg-al voters, certified to according to the statute, the petition may be attacked in court under Section 4099, Or. L., by alleging facts showing that the petition is not signed by the requisite number of legal voters. Such an allegation is absolutely essential before anyone has a standing in court in opposition to a petition regular and. sufficient upon its face, regardless of the regularity or accuracy of the certificates attached to the petition.
The statute does not make the certificate of a notary the exclusive or conclusive evidence of the qualification of the signers of the petition, but only prima facie evidence thereof, in addition to the certificate of the county clerk. Otherwise young legal voters and others not registered could not sign an initiative petition except by the grace and knowledge of some notary public, which is not a constitutional requirement of the qualifications of such petitioners.
Section 4099, Or. L., provides in part thus:
“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.”
A petition is “legally sufficient” if it contains the names of the requisite number of legal voters, and is in the form provided by the statute. That is the only real question in this case: State ex rel. v. Olcott, 62 Or. 277 (125 Pac. 303); State ex rel. v. Olcott, 67 Or. 214, 220 (135 Pac. 95, 902).
In State ex rel. v. Stewart, 57 Mont. 397 (188 Pac. 904), considering a referendum petition which appeared on its face sufficient, with the requisite number of signatures of legal voters certified to by county clerks, when it was impossible for examination and *528comparison of the signatures on the petition so as to ascertain whether they were genuine, and where a prima facie case was made out by the petition, the constitution and statute of that state being apparently like ours.
Mr. Chief Justice Brantly, speaking for the court, said (see page 907) :
“This prima facie case could not bé overcome and the suspension of the amendment to the primary law be made nugatory only by allegation and proof that a sufficient number of signatures to the petition from Wheatland, Treasure, and Glacier counties, or at least to the petitions from two of them, were not genuine' to require their exclusion from the count. Assuming that the allegations in the affidavit were sufficiently specific to justify the admission of evidence on this point, that introduced by counsel for the relator did not tend to impeach the genuineness of the signatures attached to any one of the petitions in question. It tended merely to show that the clerks had not technically pursued the directions of the statute in ascertaining the number of legal voters who were entitled to sign the petition. This is not the complaint made by the relator. Even so, we should be slow to reach a conclusion by which any legal voter would be prevented from exercising a clear constitutional right by a mere irregularity in the performance of his duty by a public officer.”
As the writer understood the argument of counsel for plaintiff, they do not claim that it is alleged or shown that any of the signatures on the petition are not the genuine signatures of legal voters of the state. It is contended that all that is necessary to defeat the petition is to show that the notaries public were careless and failed to observe the statute in certifying to the signatures. It is not even alleged that the certifying notaries did not believe that the sig*529natures embraced in their certificates were not those of legal voters or that any wrong was intended. The constitutional right of electors to sign such a petition and have their signatures counted should not be thwarted by any careless, ignorant or even willful act of a ministerial officer. To hold the petition insufficient on account of the certificates, is to sacrifice right and substance for form. It is not presumed that in the face of the warning on the petition any person is guilty of the crime of signing the petition when he is not a legal voter.
This case stands upon the principle announced by a majority of this court in the case of State ex rel. v. Kozer, known as the county clerk case, and heard about the same time.
The petition is legally sufficient upon its face, and has not been assailed by any allegation in the complaint charging that any number of the persons who signed the same are not legal voters. The complaint is insufficient to support the decree. Until a material issue is raised by the pleading we need not be concerned with the question of the burden of proof.
The judgment of the Circuit Court should be reversed.
Me Court, J., concurs in this dissent.