State Ex Rel Jensen v. Wells , 66 S.D. 236 ( 1938 )

I am not able to agree with the majority of the court in the disposition of this case.

The petition was circulated in sections, in different parts of the state, and it is claimed by plaintiff that many of the sections of said petition are not signed or verified in the manner provided by law, and therefore should not be counted.

The statute (§ 5069) provides that: "Such petition shall be signed by not less than five per cent of the qualified electors of the state, and each elector shall add to his signature his place of residence, business, postoffice address, and date of signing," all of which must be done by the petitioner, "in person," which means that he must do it himself, with his own hand. (§ 5071). The law further provides (§ 5073) that such petitions "shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality." Provided, of course, that the petitioner must express his intention in the manner required by law. Dunn v. Gamble, 47 S.D. 303, 198 N.W. 821.

At the end of each section of the petition the party who secured the signatures thereto must attach his affidavit in which he must state under oath "* * * that I am a qualified voter of the state of South Dakota. That I am acquainted with all the persons whose names are affixed to the above and foregoing paper and know that each one of said persons signed said paper personally and added thereto his place of residence, his business, his postoffice address and date of signing. That each and all of said persons are residents and qualified electors of the county of _____________, state of South Dakota. That each of said persons signed said petition with full knowledge of its contents. That I have received no compensation whatever or promise of compensation for my services in circulating said petition." Such an affidavit is attached to each section of the petition. These affidavits are important essentials of the petition. Upon examination of the affidavit it will be found that in order that it can be true, the person who circulates the petition must be a qualified elector of the state; he must be personally acquainted with each person who signs the petition; he must know that each person who signed the petition personally added to his signature his place of residence, his business, his post office address and the date of signing, and to know all these facts he must be personally present and see all these acts performed. He must know that each and all of the persons who signed the petition are residents of the county named in the body of the affidavit. He must also know, and he so states on his oath, that each person who signed the petition had full knowledge of the contents of the petition; and lastly, he must state under oath that he has received no compensation, nor promise of compensation for his services rendered in circulating the petition. If the circulator does not have actual knowledge of all these facts, or if he has received compensation, or the promise of compensation, for circulating the petition, then the affidavit is false, and the affidavit and the petition to which it is attached are nullities and should not be counted. This question was considered at length in both O'Brien v. Pyle, 51 S.D. 385, 214 N.W. 623, and Morford v. Pyle, 53 S.D. 356, 220 N.W. 907, where it was established as the rule of this court that a false affidavit was to be regarded as no affidavit at all and the petition to which it is attached can not be counted. Practically every question in dispute in this case had been decided by this court and published in the O'Brien and Morford Cases prior to the circulation of the petition involved in this case, and other questions involved herein were decided in Shields v. Wells,65 S.D. 552, 276 N.W. 246, since the petition was circulated.

The affidavits attached to the different sections of the petition are, of course, all just exactly alike. The result is, that the petitions when signed must conform to all the requirements of the affidavit, and in all cases where the petition does not comply with all the material requirements of the affidavit, then the affidavit is false, and as we held in the Morford Case, is to be disregarded as a verification of the petition. This leaves the section of the petition to which such affidavit is attached without verification and the names thereon cannot be counted for any purpose.

In the Morford Case we said: "The affidavit required by section 5074 is for the purpose of establishing the genuineness of the signature on the petition. But, if the person who makes the affidavit is not a qualified voter of the state, or if he is not acquainted with all the persons whose names appear on the petition, or if each one of the persons whose names appear on the petition did not personally sign the same and add thereto his place of residence, his business, his post office address, and the date of signing, or if each person whose name appears on the petition is not a resident and qualified voter of the county named in the affidavit, and that each person who placed his name on the petition did so with knowledge of its contents, or if the person who signed the affidavit received any compensation or promise of compensation for his services in circulating the petition, then the affidavit is false — necessarily false — because the law requires him to have personal and actual knowledge of all the facts, and the petition is left without the required affidavit, for a false affidavit is no better than no affidavit at all."

In the Shields Case, supra, written by Rudolph, Judge, the question of residence and post office address was in controversy, and upon that subject we said: "For this court to hold the named town to be post office address and residence of the signer, it must so hold by inference or assumption; that is, it must infer or assume that the residence and the post office of the signer is one and the same. We are convinced that no such inference or assumption should be indulged. The requirements of the statute are explicit; that such requirements were reasonably subject to fulfillment is evidenced by the fact that more than 14,000 signers of this petition met these requirements. To permit the signatures here involved to be counted would be to recede from the standard set by this court in the O'Brien and Morford Cases. In each of those cases it was pointed out that the data required by the statute to be given by the signer is just as important as the signature itself. Where the signature is simply followed by the name of a town without designating whether that town is the post office address or the residence of the signer, such town might be either the post office address or the residence. If intended for the post office address, the signer has failed to give his residence; if intended for the residence, the signer has failed to give his post office address. In either of these events the signer has failed to furnish the data which the statute requires. True, the designated town might be both post office address and residence, but, for this court to so hold, it must do so either by inference or assumption. An assumption is simply supposing something to be true without proof. Obviously, this petition should not be validated by assumption. An inference is the process of reasoning from something known to something else which naturally follows from it. All we know in this instance is that the signature is followed by the name of a town. It does not, in our opinion, naturally follow from this known fact that such town is both post office address and residence of the signer. It might be either. The statute requires both."

In his complaint herein plaintiff alleges:

"That there was a total of 293,914 votes cast for the office of governor at the 1936 general election in the State of South Dakota (that being the last preceding general election), and in order to be valid a Referendum Petition must contain the valid signatures of not less than 14,696 qualified electors of the state duly affixed, completed and authenticated in compliance with the requirements of the Statutes.

"That said Petition does not contain the valid signatures of 14,696 qualified electors of the state who signed said Petition and who completed their signatures by adding their place of residence, their business, and their post office address, and the date of signing, and who signed the same in the presence of the persons verifying the said Petition as the circulator thereof, and who were known by the persons so verifying said Petition to be qualified electors of the counties referred to in the verifying affidavits, and with whom the purported circulators were acquainted, and who signed the same with knowledge of the contents of the Petition, or whose names were procured by circulators who received no compensation therefor.

"That said Petition contains purported signatures that are incomplete, as follows:

"(a) That 22,377 of the persons whose names appear upon said Petition did not add to their signatures, their place of residence.

"(b) That 237 of the persons whose names appear upon said Petition did not add to their signatures, their business.

"(c) That 7,244 of the persons whose names appear upon said Petition did not add to their signatures, their post office addresses.

"(d) That 444 of the persons whose names appear on said Petition did not add to their signatures, the date of signing.

"That affiant is informed and believes and therefore alleges that more than 20,000 of the purported signatures upon said Petition are invalid upon the following grounds:

"(a) That 19,178 of the names appearing on said Petition are contained in sections of said Petition that have been materially altered and forged after the signing thereof by the purported petitioners.

"(b) That 2,305 of the names appearing on said Petition are upon sections of said Petition containing the names of persons not residents of the counties in which they were circulated, and in which they are alleged in the verifying affidavits to be residents, and that said sections are invalid.

"(c) That 10 of the names in said Petition are upon a sheet or section that has been changed or altered by pasting the same to a heading.

"(d) That more than 4,000 names upon said Petition are upon sections thereof that were circulated by persons who received compensation for circulating the same.

"(e) That 10 names upon said Petition are duplications.

"(f) That certain sections of said Petition contain the names of persons who did not sign the same in the presence of the persons making the affidavits as circulators, and who were not known by the persons making such affidavits to have signed the same; that certain sections of said Petition contain the names of persons with whom the circulators were not acquainted and who were not known to them to be electors of the state and of the counties designated in the affidavits; that certain sections contain the names of persons not residents of the counties designated in the affidavits; that certain sections of said Petition contain the names of persons who did not know the contents of said Petition; that certain sections of said Petition have verifying affidavits appended thereto that were not signed and sworn to in the presence of the Notaries or other officers before whom the same purport to have been signed and sworn to; that the verifying affidavits attached to all of said sections of said Petition are false and are unlawfully appended thereto, and that all of the names embraced in all of said sections of said Petition are invalid and wrongfully embraced therein. That the sections of said Petition so falsely verified contain more than 16,000 names.

"That by reason of the foregoing facts, more than 20,000 of the purported signatures upon said Petition are invalid and unlawfully embraced therein, and said Petition is void as to such purported signatures. That said Petition does not contain the requisite number of valid signatures, and is wholly insufficient as a petition to refer said law to the vote of the people."

In the petition involved in this case thousands of the signers failed to give their residence or their post office address, by the omission of the name of the state or the initial letters of the name of the state. The term "post office address" means the name of the person addressed, the name of the city or town in which the person is to receive such letter, and the state in which said city or town is located. The statute specifically says that each signer shall insert his residence and post office address. In the body of the petition involved in this case is this clause: "We, the undersigned, qualified electors of the State of South Dakota," and the majority of the court holds that this declaration made by the author of the petition is of itself sufficient to establish the residence and post office address of every signer on the petition. With this proposition I am not able to agree. The statute says that the signer must insert his residence and post office address, and we have repeatedly held that the signer must do this with his own hand. The above holding by the court in this case amounts to a judicial repeal of this provision of the statute. But this is not the worst result of this "about face" by the court. The law was well established when this suit was commenced. We know that before the commencement of this case, counsel for plaintiff examined these petitions name by name, and, applying the law as it was then established by this court, and was then in force, found that said petition came far short of containing the number of legal signers required to constitute a legal petition. Had the rule of law now declared by the majority of this court been known or in existence at that time, it is not at all likely that this action would ever have been commenced. Counsel have expended something like a year. of hard work in the preparation and trial of these cases; it has probably cost the litigants in these actions not less than Twenty-five Thousand Dollars. All this now goes for naught simply because the majority of the court has seen fit to change the law after the suit was started.

The petition involved in this case is far from sufficient to invoke the referendum, and the writ of prohibition ought to be granted as prayed for in the complaint.