M. E. LUNDBERG, FRED DRESSLER, R. L. KNISLEY, E. THAYER BIGELOW, EUGENE V. FRANCY, FOREST B. LOVELOCK AND ANDREW ULRICH, JR., PETITIONERS, v. JOHN KOONTZ, SECRETARY OF STATE OF THE STATE OF NEVADA, RESPONDENT.
No. 5190
Supreme Court of Nevada
October 7, 1966
418 P.2d 808
THOMPSON and COLLINS, JJ., concur.
Gray, Horton and Hill, of Reno, for Petitioners.
Harvey Dickerson, Attorney General, of Carson City, for Respondent.
By the Court, THOMPSON, J.:
The
By an original proceeding in mandamus, seven citizens, voters and taxpayers of Nevada challenge the legal
The respondent Secretary of State filed an answer to the petition for mandamus, admitting the factual averments concerning the authentication of signatures. Silver State Sweepstakes, Ltd., and certain individuals who were citizens, registered voters and taxpayers of Nevada, moved to intervene. Oral arguments on the motions and the merits were heard September 26, 1966. The motions to intervene were denied that day, with Collins, J., dissenting. However, we invited Silver State to present argument upon the merits as an aid to the court. Cf. Stephens v. Bank, 64 Nev. 292, 182 P.2d 146 (1947). As the need for an early decision on the merits was pressing, we announced our decision from the bench on September 28, 1966, directing that the alternative writ of mandamus, heretofore issued, be made permanent (Zenoff, D. J., dissenting). The Secretary of State was ordered to refrain from taking any steps toward publishing the proposed initiative measure, causing it to be printed on the ballots and submitting it to the voters of Nevada at the general election to be held November 8, 1966. This opinion is in explanation of that decision.
1. We first express our view about the motions to intervene. The movants claimed a right to intervene under
2. Mandamus is appropriate to prevent improper action by the Secretary of State, as well as to compel him to perform an act which is his duty under the law. McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787 (1948); French v. Jordan, 28 Cal.2d 765, 172 P.2d 46 (1946); Gage v. Jordan, 23 Cal.2d 794, 147 P.2d 387 (1944); Yorty v. Anderson, 60 Cal.2d 312, 384 P.2d 417 (1963). Therefore, we turn to resolve the question of law presented by this proceeding.
3. The validity of the initiative petition before us depends upon the meaning of the third sentence of
The content of the 580 affidavits affixed to the 580 documents comprising the initiative petition suits the Constitution. Each affidavit states: “----, being first duly sworn, deposes and says: That (s)he is one of the registered voters of the State of Nevada who has signed the above document entitled ‘An Initiative Petition Proposing an Amendment to the Constitution of the State of Nevada Relating to a State Lottery‘; that all of the signatures to such document are genuine and that each individual who signed such document was at the time of signing a registered voter in the county of his or her residence.” However, an examination of the 580 documents establishes that many of them were not, in fact, signed by the person who executed the affixed affidavit. Each affidavit, in those instances, is false. Because of this failure, the petitioners argue that the signatures of 27,567 persons signing the infirm documents may not be counted, thereby destroying the validity of the petition for lack of the required number of signatures.
In presenting oral argument at our invitation, Silver State Sweepstakes noted that the affiant, in most instances, did sign one of the documents which he had circulated, though not every document to which his affidavit was attached. It was suggested that we deem this to be substantial compliance with the Constitution.2 If we were to accept this suggestion, the initiative petition would contain the requisite number of signatures.
The Constitutional history of Art. 19, § 3 and relevant case authority destroy any possibility of merit in the suggestion of Silver State. In 1960 the Legislature, by joint resolution, proposed an amendment to that article
Before the amendment, one affidavit by a signer of a petition consisting of more than one document could satisfy the Constitution (if other requisites, not relevant here, were also met). This is no longer true. Now, each separate document shall have affixed thereto an affidavit made by a signer of that document. An affidavit must, of course, state the truth. In the present matter, many of the affidavits were untrue because the affiant did not sign the document to which the affidavit was attached. In such case none of the signatures on those documents may be counted. Fiannaca v. Gill, 78 Nev. 337, 372 P.2d 683 (1962); Caton v. Frank, 56 Nev. 56, 44 P.2d 521 (1935); In re Opinion of the Justices, 114 Me. 557, 95 A. 869 (1915).
Fiannaca v. Gill, supra, involved a recall petition. The relevant statute provided: “The petition shall consist of any number of copies thereof, identical in form with the original, except for the signatures and residence addresses of the signers. Every copy shall be verified by at least one of the signers thereof, who shall swear or affirm, before an officer authorized by law to administer oaths, that the statements and signatures contained in the petition are true.” The court there held that the statute was not satisfied when a number of copies were attached together, and one signer of one copy verified that copy. Such verification could not meet the statutory mandate as to all joined copies. The court took note of Caton v. Frank, supra, where the verification did not show that the person making the affidavit was himself a signer of the petition and was, for that reason, defective.
The alternative writ of mandamus, heretofore issued, is made permanent.
COLLINS, J., concurring on merits, dissenting on motion to intervene:
On the motion to intervene:
I do not agree with the majority opinion of the court on the motion to intervene. I am of the opinion that Silver State Sweepstakes, Ltd., and the individuals who were citizens, registered voters, and taxpayers of Nevada, were entitled to intervene as a matter of right. It is apparent to me that the respondent Secretary of State could not, and did not, adequately represent the interest of those seeking to intervene. The motive of the Secretary of State is above reproach so far as the position he took in his answer, admitting factual averments concerning authentication of signatures to the documents supporting the petition. However, his honestly-taken position was clearly adverse to that of those
On the merits:
I concur in the opinion of Mr. Justice Thompson.
ZENOFF, D. J., dissenting:
As properly recited in the majority opinion Article 19, Section 3 of the Constitution, permits a petition to consist of more than one document. There is no expressed definition of what constitutes a document. The design of that provision, at least, is to facilitate the circulation of a proposed amendment to the people. In effect, each document is a petition within itself. There is nothing specific that requires a document to be comprised of any certain number of pages, only that each document be verified by “one of the signers of the document * * *”
The majority opinion requires each verifier of a document to also sign the document as a signer, or petitioner. Assuming such person to have circulated more than one document he is thereby required to sign the petition as many times as he has signed a document. Yet, his name as a petitioner can only be counted once.
On the other hand, it was conceded at oral argument that in this situation where the verifier has failed to sign some of the documents as a petitioner, the defect is cured simply by stapling a “good” document to those that he circulated and signed as a verifier but did not sign as a petitioner. It leads me to query what the answer would be if instead of a staple the documents were held together by a rubber band or a paper clip.
Efforts of the people to petition their government should be given liberal construction. The initiative and referendum are two forms of legislative power reserved to the people. Since they deal with the reserved powers of the people they should be liberally construed to uphold the power whenever that can reasonably be done. Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 247 P.2d 362, 368-369 (1952); Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775, 777 (1938).
There is no contention that those who signed as voters were not in truth registered voters, nor is it claimed that
The vitality of an initiated petition is supplied by the number of valid signatures. Brownlow, supra. Here, the number of signatures required by law were those of people who, as registered voters, wanted a measure submitted to popular vote. In Fiannaca, this court said the copies remaining after the defective copies were discarded, would not contain enough signatures. That is not true in this case. If the liberal interpretation which I urge were to be adopted, more than twice the required number of signatures, duly authenticated, appear on the initiative petition.
I dissent.