| N.D. | Dec 30, 1921
Lead Opinion
Petitioners apply for an original writ to restrain tbe state canvassing board from canvassing tbe returns of tbe recall election beld on October 28tb, 1921. As taxpayers and citizens, tbe petitioners allege tbat on September I7tb, 1921, certain recall petitions were filed with tbe secretary of state seeking to recall tbe governor, tbe attorney-general, and the commissioner of agriculture and labor. Tbat tbe secretary of state, thereupon, designated October 28th, 1921, as tbe recall election day; tbat at tbe election so beld on October 28th, 1921, tbe governor, the attorney general, and tbe commissioner of agriculture and labor, sought to be recalled, received less than a majority of the votes cast and tbat tbe state canvassing board, unless restrained, will declare other persons to have been elected to such offices at such election. It is further alleged tbat there were cast at the general election beld in November, 1920, 229,606 votes for tbe office of governor; tbat tbe petitions filed were not signed by at least 30 per cent of tbe
It will be noted that this recall amendment does not provide any machinery, except in a very limited way, concerning the circulation of petitions, the determination of their sufficiency, or concerning the special election to be held thereunder. Necessarily, if such amendment be self-executing and its provisions mandatory, it must call to its aid, in order to facilitate or even to permit its operation, statutory or cognate laws existing. Necessarily, some duty is imposed upon the officer with whom such petition must be filed. The mandatory nature of the amendment under its very terms, specifying by whom the petitions must be signed, the percentage of electors required, and, the duty thereupon imposed upon the officer to call a special election, requires an exercise of a discretion by such officer. The duties of the secretary of state are generally prescribed by statute. The nature of his duties has been often considered by this court. See State ex rel. Linde v. Hall, 35 N. D. 62, 66, 159 N.W. 281" court="N.D." date_filed="1916-09-11" href="https://app.midpage.ai/document/state-ex-rel-linde-v-hall-6737757?utm_source=webapp" opinion_id="6737757">159 N. W. 281; State ex rel. Twichell v. Hall, 44 N.D. 459" court="N.D." date_filed="1918-10-05" href="https://app.midpage.ai/document/state-ex-rel-twichel-v-hall-6739096?utm_source=webapp" opinion_id="6739096">44 N. D. 459, 171 N. W. 213. Although he possesses no judicial functions, it is manifest that the self-executing and mandatory features of the amendment require the exercise of a discretion by the secretary of state in passing upon the petitions. Assuredly, in calling such special election, he must call to his aid statutory election laws, so far as ap-
The cognate law points out a method for the secretary of state exorcising a discretion upon initiative and referendum petitions that are foundational for an election thereupon. Necessarily, pursuant to the constitutional recall amendment, he must exercise a discretion in passing upon the sufficiency of recall petitions unless the mandatory features of the amendment be disregarded and legal safeguards concerning elections be unobserved. The secretary of state, by constitutional amendment, is made the officer with-whom the petitions are filed. Tie is designated as the officer who shall call the special election. Further, pursuant to the recall amendment and statutory election laws, he has been assigned specific duties concerning the nomination and submission of candidates at such recall election, and concerning the election 'itself. Necessarily, a duty was imposed upon the secretary of state to exercise a discretion concerning, and to pass upon, the sufficiency of the recall petitions, if any force at all be given to the self-executing and mandatory features of the recall amendment. See State ex rel. Little v. Langlie, 5 N.D. 594" court="N.D." date_filed="1896-06-10" href="https://app.midpage.ai/document/state-ex-rel-little-v-langlie-6734657?utm_source=webapp" opinion_id="6734657">5 N. D. 594, 600, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Gongwer v. Graves, 90 Ohio St. 311, 107 N. E. 1018.
No objection of any kind, nor any appeal, was made to the secretary of state concerning the sufficiency of the recall petitions. No action or proceeding of any kind was taken prior to the election, in any court, to question the sufficiency of such petitions. Without’ objection or the taking of any proceedings, the secretary of state was permitted to exercise his .discretion, to call and to hold the election. It may be conceded, for purposes of this application, that the petition alleges a cause of action to enjoin the calling of a recall election and for a review of the discretion exercised by the secretary of state, if such cause of action had been presented prior to the time of such election, and, further, that the recall petitions must be signed by 30 per cent of the qualified electors who voted at the preceding election for the office of governor. The recall petitions, on their face, purport to be so signed. It may be further conceded that the recall constitutional amendment itself prescribes its mandatory character and the rule of strict compliance to be applied; that, further, it was not intended, through this constitutional amendment, to east aside all safeguards in election proceedings.
However, the pertinent inquiry, now, is whether, at this time, after the secretary of state has exercised his discretion, without any objection or any appeal to the courts, and after a recall election has been held, this court should invalidate the election and restrain the state canvassing board in the performance of its duties enjoined by law. The petitioners assert that a valid election cannot exist based upon invalid petitions; that the existence of sufficient petitions for a recall are conditions precedent to the calling or holding of a. valid special election and any election not so called and held is necessarily void. It remains to be seen whether this premise, asserted by the petitioners, is correct,
For purposes of illustration it may be supposed that the sufficiency of the recall petitions, as to the number of qualifications of the signers thereon, had been questioned before the holding of the election, either before the secretary of state or in an appropriate proceeding, and it had been found that by reason of duplications of signatures, lack of legal signatures, and illegalities in procedure such recall petitions contained 1,000, 5,000, or even 10,000 signers less than the number required by the constitutional amendment: Would it be asserted or contended that no recall election could be later held if sufficient and qualified signers additional were submitted and the petitions refiled? Neither the constitutional amendment nor any supplementary legislation provides when such petitions must be signed or filed. Furthermore, for purposes of illustration, it may be supposed that at the recent recall election the officers sought to be recalled were retained by a majority vote of the electors similar’ to that by which they were defeated. The constitutional amendment provides that, after one such petition and special election, no further recall petition shall be filed against the same officer during the term for which he was elected. Would it be asserted or contended that, subsequently, recall petitions could be filed against the same officer upon the ground that the recall petitions previously filed were invalid and the election held thereupon void? If petitioner’s position be correct the election in either event must be set aside; further, additional and qualified signers might be secured, the petitions again refiled, another election called and held, and then, again, tb^ sufficiency of the petitions might again become subject to attack for further insufficiency and, if so found, such election must be set aside and so, ad infinitum. The petitioners do not now question the legality of the election itself or specify any irregularities in the conduct of such election. They question only the sufficiency of the petitions. As hereinbefore stated, it must be apparent that, pursuant to the recall constitutional amendment, the electors of the state have the right to propose and file recall petitions; the electors of the state also have the right to object to the sufficiency of such recall petitions either before the secretary of state or by resort to the courts. These are apparent and concurrent rights. Agencies for the exercise and deter
Bor the reasons stated, the application must be denied.
Concurrence Opinion
(concurring). The only question for consideration here is whether or not the petition alleges grounds for interference with the contemplated action of the canvassing board. I am clearly of the opinion that it does not. It is unnecessary to go further into the consideration of article 33 of the amendments to the Constitution, than to determine whether or not a duty is imposed upon the secretary of state, in the first instance, to ascertain the sufficiency of petitions filed in his office and to act upon them in accordance with his determination. Clearly, the sufficiency of the recall petition must be determined in the first instance by the officer with whom it is filed, and, when so determined, a mandatory duty is imposed to call an election. State ex rel. Little v. Langlie, 5 N.D. 594" court="N.D." date_filed="1896-06-10" href="https://app.midpage.ai/document/state-ex-rel-little-v-langlie-6734657?utm_source=webapp" opinion_id="6734657">5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958. If the determination is adverse he should refuse to call it. In this instance, the determination was made and the resulting duty performed
Concurrence Opinion
(concurring). I concur in the principles stated in the syllabus, and in the conclusion reached in the opinion prepared by Mr. Justice Bronson.
The petitioners ask for the issuance of a prerogatory -writ restraining the state canvassing board from canvassing the returns and announcing the result of the recall election held Oct. 28th, 1921. The solo ground alleged by the petitioners as a basis for the proceeding sought to be instituted by them is that the petitions, filed with the secretary of state asking for the recall of the three state officers in question, were insufficient. There is no charge, however, that the winning candidates were in any manner responsible for the acts complained of. It is not denied that the petitions were prima facie sufficient; but it is contended that, as a matter of fact, the petitions were not signed by a sufficient number of qualified petitioners.
In my opinion, there are at least two good reasons why the writ should be denied.
(1) It is undisputed that the recall election was called and held; ihat the election officers of the different election precincts in the state certified their returns to the respective county auditors; that in the different comities of the state the various boards created by law for that purpose met and canvassed the returns from the different election precincts; that the returns from the different counties were duly cer-
(2) There is another reason why the writ should not issue. The petition in this case alleges that certain recall petitions were filed with the secretary of state; that pursuant thereto the secretary of state called a recall election; that such election was held with the result that the candidates opposing the officers sought to be recalled received a majority of the votes cast at the election. It is made the duty of the secretary of state, when recall petitions signed by a prescribed number of qualified electors are filed, to call an election. No specific provision is made as to how the sufficiency of the petition shall be ascertained. There can be no question, however, but the duty is imposed upon the secretary of state to determine, at least in the first instance whether the petitions are signed by the number of electors prescribed. In this case the secretary of state must have reached the conclusion that the petitions were signed by the required number of qualified electors for he called the election. State ex rel. Little v. Langlie, 5 N.D. 594" court="N.D." date_filed="1896-06-10" href="https://app.midpage.ai/document/state-ex-rel-little-v-langlie-6734657?utm_source=webapp" opinion_id="6734657">5 N. D. 594-600, 32 L.R.A. 723, 67 N.W. 958. There is no contention that any objection was made before the secretary of state, or that his determination that the petitions were sufficient was in any manner assailed. There can, I think, be no question but that the determination of the secretary of state was at least prima faci6 correct, and some courts have ruled, under somewhat similar provisions, that the decision of the secretary of state has even greater effect.
It is well settled that a wholly different rule applies in considering the effect of noncompliance with the provisions of election laws where it is sought to set aside the result of an election from that which applies where the question of non-compliance is raised before the election is held. Ruling Case Law (9 R. C. L. p. 1173) says: “It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and from the current of authority the following may be stated as the approved rule: All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election,.or that its omission shall render it void. Voters finding a ticket or the names of candidates on the official ballot are not required to determine whether they are entitled to a place thereon, but may safely rely on the action of the officers of the law, and on the presumption that they have performed their duty. And so an election in which the voters have fully, fairly, and honestly expressed their will is not invalid because the certificate of nomination of the successful candidate is defective through
Concurrence Opinion
(concurring). Now, at this late day, twenty-four days after the recall election, held on October 28, 1921, five persons claiming to be citizens and taxpayers, file a petition asking tbe court to enjoin respondents, tbe state canvassing board, from canvassing tbe
For the recall of Governor Franzier,73,893; for the recall of William Lemke, 73,237; for the recall of Mr. Hagan, 73,187.
Of course the recall petitions are on file in the office of the secretary of state and are there subject to inspection. It is quite possible that the petitions contain some duplicates and signatures of persons not legal voters, but from an examination of each petition no one can say that it does not contain signatures of at least 68,882 legal voters. The petitions were filed in the office of the secretary of state on September 16, 1921 and the officers against whom the recall was filed promptly caused petitions to be examined and copied and then caused $10,000 of the state emergency fund to be transferred to Secretary Hall for the purpose of the recall election by publishing and distributing the state-publicity pamphlets. Accordingly the election was called and held and the votes have been duly certified to the secretary of state and it is generally conceded that the officers recalled have lost by a margin of votes exceeding four thousand. The recall amendment is to this effect:
“The qualified electors of the state or of any county, or of any congressional, judicial or legislative district may petition for the recall of any elective, congressional, state, county, judicial or legislative officer by filing a petition with the officer with whom the petition for nomination to such office in the primary election is filed demanding the recall of such officer. Such petition shall be signed by at least thirty per cent of the qualified electors who voted at the preceding election for*24 the office of governor in the state, county or district from which such officer is to be recalled. The officer with whom such petition is filed shall call a special election to be held not less than forty or more than forty-five days from the filing of such petition.”
It is claimed that under this recall amendment no elector may sign a recall petition unless he has voted at the preceding election for the office of governor and that numerous persons who signed the recall petition had not so voted; but that is not a fair construction of the amendment. Its plain meaning is “The qualified electors may file the petition” and it must be signed by a number of .electors equal to thirty per cent of the votes given for the office of governor. The officer who orders a special election must do so on inspection of the petition and neither he nor the canvassing board have any means of determining-how a person voted at a prior election. Statutes must be given a construction that is workable and practical. A petition for the recall of state officers must be filed with the secretary of state and he must call an election to bo held not less than forty nor more than forty-five days after the filing of the petition. Clearly the sufficiency of the petition must be determined from an inspection of the same, and not from affidavits, and hence, to avoid mistakes quite certain to occur in a lengthy petition, it is common to obtain an extra number of signatures, and that is doubtless a reason why the petitions in this case contain about five thousand additional signatures.
When a referendum or initiative petition is filed with the secretary of state he is required to pass upon the sufficiency of the petition, and if it be found insufficient to notify the committee for the petitioners and to allow twenty days for an amendment. ITis decisions are subject to review by the supreme court, but if a measure is approved by a majority of the voters, no subsequent decision shall invalidate the votes cast. The decision by the voters becomes final. There is no good reason why the same principle should not govern a recall election. The purpose of a petition is to show a general or widespread demand for a recall, and after such demand has been shown by the votes at the polls, the petition becomes of little consequence. It is then functus officio. Thus it is held: “After a county seat election has been ordered and held, and a sufficient vote is cast in favor of some one place to work a relocation of the county seat, the questions whether
Now tbe statute does provide for tbe manner of conducting elections and of certifying tbe votes to the secretary of state and for tbe canvass of tbe votes by tbe state board of canvassers. Tbe board is required to certify and determine what persons have been, by tbe greatest number of votes, duly elected to office and to make and subscribe a statement or certificate of such determination and deliver tbe same to the secretary of state. Code, § 1019. Then tbe secretary of state shall record in bis office such certified statement and determination so made by said board and shall forthwith make and transmit to each of tbe persons thereby declared to be elected a certificate of election as hereinafter provided, and be shall also forthwith cause a copy of sucb certified statement and determination to be published in a newspaper printed at tbe seat of government. Code, § 1020.
Now, by tbe petition in this case, tbe court is asked to enjoin the' canvassing board from tbe performance of their plain duty as prescribed by statute. Tbe petition is without equity and without any warrant of law.
Concurrence Opinion
(specially concurring). This proceeding was brought, by tbe petitioners for tbe purpose of procuring a prerogatory injunc-tional writ, to restrain tbe state canvassing board from canvassing tbe returns and announcing tbe result of tbe recall election of October 28th, 1921.
As a preliminary step in tbe bringing of tbe recall election, certain: petitions for tbe recall of the governor, attorney general and commissioner of agriculture were circulated. Each of tbe petitions apparently contained more than tbe requisite number of signers, that is, they were signed by presumptively legal voters in numbers greater than required by article 33 of the constitutional amendments. In this condition the petitions were presented to tbe secretary of state for filing. If tbe petitions were in proper form and contained tbe requisite number of signatures, it was bis ministerial duty to file them. He could
The recalled officers have in no way contested the election. They thus impliedly conceded the validity of the election. No one legally disputed the validity of the election except plaintiffs, who bring this proceeding in the relation of taxpayers, and this after state wide election has been held, as a result of the filing of the petitions. The petitioners had all of forty-five days which elapsed, between the filing of the petition and the day of election, to have brought a proceeding similar to the one they now bring. They did not do so. They slept upon their rights during all of that time, and now since the election, conducted at large expense, and since every elector has had an opportunity to vote upon the issues of the election, we think the plaintiffs are es-topped at this late time to maintain the proceeding which should have been maintained if at all during the period of time between the filing of the petitions and the date of the election.