(concurring specially)-
Although I concur with the finding of the majority that there are insufficient valid signatures to refer SL 1978, Ch. 240 to a vote of the citizens, I would hold many more of the signatures invalid than the majority opinion has.
The proponents of this referendum admit to a course of conduct as to some 2,000 signatures, which was a clear violation of statutory requirements. Those signatures were obtained on petitions circulated by persons unknown or unnamed in various cities and towns throughout the state. The petitions, without the circulator’s verification, were then mailed to the Huron office of the National Farmers Union Insurance Company. There, one employee of the'insurance company, admittedly without knowledge of the authenticity of the signatures, executed the verification as the circu-lator and another employee acted as notary. Other petition verifications were received unnotarized and the employee at the Huron office would notarize the verification even though it was neither signed nor acknowledged in her presence. In one instance, the signature of the notary who had attested the verification but failed to apply his seal was crossed out and the employees at the Huron office signed and sealed the petition as notary. These acts were intentional violations of the election laws and the notaries oath.
Although the proponents concede the signatures invalidity where these illegal acts are readily apparent, they ask this court to invalidate those signatures but impose the burden of proof upon the opponents to establish that there was actual deceit involved in the other irregularities. These other irregularities involve petitions where the signatures were not obtained in the presence of the circulator and some where the person executing the verification as cir-culator had turned the petition over to another person or persons to circulate. With full knowledge of these circumstances, they signed an affidavit to the effect: “7 being first duly sworn, on oath depose and say that I circulated the above petition and I attest the legality of the signatures’’ In spite of the obvious falsity of these verifications, the proponents assert that the people’s right to a referendum should not be thwarted by “mere technicalities” and that the referendum petitions should be “liberally construed” to carry out the wishes of the voters. SDCL 2-1-11. I wholeheartedly agree with those principles, but I cannot agree that they should apply to these circumstances.
Do not the proponents by admitted illegal activities forfeit their right to a liberal construction of the remaining petitions where the same practice may or may not have prevailed, but where the statute was not followed in obtaining valid signatures? I find that to be the intent of the language of this court in State v. Riiff, 73 S.D. 467, 474, 44 N.W.2d 126, 129:
It [is] recognize[d] that intent to deceive is not ordinarily susceptible of direct proof and in the absence of evidence to *573the contrary may be presumed where the falsity was necessarily known to the affi-ant. The effect of such presumption is to cast upon the party seeking to sustain the validity of a petition the burden of producing evidence to show that affiant acted in good faith.
It is clear that the circulators of the petitions in question knew of the falsity of the verification when the petitions were not signed in their presence or were circulated by third persons. The burden was then upon the proponents to prove good faith of the circulator; absent such proof the entire petition should be invalidated.
Since my position does not change the result of the majority opinion, but would merely decrease the already insufficient number of valid signatures, I will not make analysis of each petition. However, under the admitted circumstances here, I would impose a strict enforcement of the statutes and rules on the petitions in question.
I am authorized to state that Justice DUNN joins in this special concurrence.