PALMER et al. v. BROADBENT, Mayor et al.
No. 7997
Supreme Court of Utah
Decided Aug. 12, 1953
Concurring Opinion Aug. 19, 1953
260 P. 2d 581
Orville Isom, Cedar City, for plaintiffs.
Patrick H. Fenton, Cedar City, for defendants.
WADE, Justice.
Plaintiffs, who with others are sometimes referred to as sponsors and petitioners, are residents and voters of Cedar City, Utah, and they petition this court for an extraordinary writ,1 requiring the defendants, who are the members of the City Council and the City Recorder, to submit to the voters at the next regular city election, for approval
On March 7th, sixteen days after enactment and fourteen days before the effective date, the sponsors filed a petition with the City Recorder for a referendum to the voters on that ordinance, together with an application for petition copies and circulation sheets to be bound in 15 sections to be printed in legal form. Whereupon the Recorder certified to a true and correct copy of such petition, and that she had received such petition on that day. On March 10th, after waiting the three days allowed by law therefor, the Recorder solicited three printers for bids on that printing job.3 On that day without waiting for such bids, the sponsors presented to the Recorder the re-
On March 17, 1953, again taking the full ten days allowed therefor, the Recorder notified the sponsors that she had received a bid for the proposed printing, and that upon the payment of the amount of such bid plus 50c for the circulation sheets she would have the forms prepared for circulation. The statute allowed her 10 more days to accomplish this after receiving the required fee,5 which would be at least 7 days after the time for filing the Petition for
On March 20th, the day before the effective date of such ordinance, the sponsors took the fifteen sections of the petition copies which they had circulated with 449 names signed and acknowledged thereon, to the County Clerk of Iron County, Utah, who checked the names against the official registration books of his county. He attached thereto a certificate
“that at the last general election 3122 persons of all parties voted for governor in Cedar City, and that the Petition for Referendum * * * contained 430 names of duly qualified and registered voters.”
He also attached thereto another certificate
“that on the 20th day of March, 1953, I received * * * a Petition for Referendum * * *; that I have checked all names appearing on the sections and on each circulation sheet thereof; * * * that I have indicated such names appearing thereon as are registered voters in Cedar City, Utah, by placing before each of such names a check in the column where the name of such registered voter appears; * * * that all the names on said sheets not markd with a check either are not registered voters in Cedar City or are the names concerning which I have some question * * *.” (Italics ours.)7
The checkmarks were actually placed after the names instead of before as stated in the certificate. These petitions and circulation lists with the attached certificates were on that day taken to the City Recorder who received the same and acknowledged receipt thereof.
“* * * that upon said circulation sheets, duly verified by the County Clerk were the names of 0 registered voters of Cedar City * * *”
This she justified by the fact that the checkmarks were after instead of before the signatures. Upon this being called to the attention of the County Clerk he made an amended certificate dated March 27, 1953, showing that the checkmarks were placed after the signatures. This was received by the Recorder who acknowledged receipt thereof on March 30, 1953. Thereafter a recount was had but the Recorder refused to change her endorsement from “Insufficient” to “Sufficient.”
Plaintiffs contend the facts here shown require the submission of this ordinance to the voters for approval or rejection because, (1) it was the Recorder‘s duty to accept, record, certify, number and return to the sponsors for circulation, the printed petition copies presented to them on March 10, 1953; (2) that having failed to do her duty, where as here no one could be mislead or injured thereby, the law will presume that what should have been done was done, and thus make effective the Petition for Referendum the same as though these required acts had been done; and (3) that if so treated there were sufficient signers and the County Clerk‘s certificate was sufficient to require the submission of this ordinance to the voters.
The Recorder should have accepted these printed petition copies which sponsors furnished on March 10th. All of the detailed procedure provided for in the statute for obtaining these printed forms are mere formalities, for as long as the prescribed forms are supplied, who arranged for and the procedure followed in having them printed have no substantial effect on the result. The only
The State Constitution vests in the people the right to legislate directly.10 The legislature has supplemented this provision by this statute and it is the duty of the courts to so construe the statute so as to make it operative where possible. We have held that the formal requirements of this statute are directory and not mandatory, and that substantial compliance with such provisions is sufficient.11
The failure of the Recorder to accept these printed forms as she should have done does not render the sponsor‘s Petition for Referendum ineffective. The forms of the petition copies, certificates, and circulation sheets and their binding in fifteen separate sections complied with the statute in every substantial detail. The Recorder‘s certificate was printed in those forms with her name printed in the place she should have signed them. She had refused to affix to them the corporate seal, to sign her name to the certificates, and to record the petitions as the law required her to do.12 By her failure to do her duty, even though acting in good faith, she caused the sponsors to be faced with a serious problem. If they waited for her to obtain these printed petition copies, there was no reason to believe that they would be furnished in time to accomplish their purpose, so they had them printed themselves, but now she refused to sign the certificate which was attached to the copies to be circulated, although she had made such a certificate which she kept in her office. They could bring
Here there was no fraud or misrepresentation by the sponsors and nothing was done by them which was calculated to deceive or mislead any one. The sections of the printed forms which were circulated were in correct form except they lacked the signature of the Recorder and the corporate seal of the City and the certificate as to the title and number of the ordinance. These they did not purport to have but they were true copies of the petition on file with the Recorder and the certificate which she had attached to a copy thereof which was on file in her office. Under these circumstances, since no one has been adversely affected in reliance on her failure to act,13 the petition was not invalidated by her failure to do her duty for the sponsors had done all they could do to make the petition effective and are not defeated by her failure to act.
“all the names on said sheets not marked with a check either are not registered voters * * * or are the names concerning which I have some question * * *.”
This statement is not limited to names with a check placed before them but covers all names not marked with a check. So the meaning of this certificate is not in doubt even without the amended certificate. But if it were, we have no doubt that the certificate could properly be amended to conform with the facts and correct an obvious mistake at any time before the final decision of the Recorder on the recount of the names.
The extraordinary writ previously issued out of this court is made permanent.
Costs to the plaintiffs.
MCDONOUGH, CROCKETT and HENRIOD, J.J., concur.
WOLFE, Chief Justice (concurring in the result).
I concur on the ground that in this case no one was prejudiced by the absence of the City Recorder‘s certificate
“that the law contained thereon [on the petition copy] is the true and correct number and title of the law as proposed for referendum“,
As Mr. Justice WADE suggests the matter of paramount importance is to give the voters in the town opportunity to vote on the ordinance. While I consider it also important to maintain the integrity of the various parts of the act so that each part may serve the purpose for which it was designed, in this case we may rest assured that no harm can be done by dispensing with the safeguard which the certificate was intended to provide, especially in view of the importance of the right to vote on the ordinance, the knowledge that no one was misled, and that the title of the ordinance which the petitioners were seeking to refer was correctly printed on each petition copy, along with the date of its enactment.
I also agree that the refusal of the City Recorder to certify as required by Section 20-11-12 that the petition copies presented to her by the sponsors, which they had had printed at their own expense, were true and correct copies of the original petition (not to be confused with the certificate required by Section 20-11-13) was not justified and hence it should not defeat the sponsors’ attempt for referendum.