Woodward v. Barbur
116 P. 101
Or.
1911
Check Treatment
Mr. Justice Moore

delivered the opinion of the court.

This court, upon consideration of the cause after it was argued and submitted, reversed the decree without giving a written opinion, in order that the mandate might go down in time to be obeyed prior to the election, and the reasons which induced the conclusions will now be stated.

The question to be examined is, who are qualified to sign petitions initiating measures to be voted upon at municipal elections? The.parts of the organic act deemed to be involved herein and which relate to an employment of the initiative and referendum powers reserved to the people are as follows:

*73“The legal voters of every city and town are hereby granted power to enact and amend their municipal charter.” Section 2, Article XI, of. the Constitution of Oregon.
“The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure, by the initiative, in any city or town.” Section 7a, Article IV of the Constitution of Oregon.

Pursuant to the authority thus granted, Ordinance No. 16,311 was duly enacted by the city of Portland, prescribing the forms of initiative and referendum petitions, wherein each petitioner is required to subscribe to the following statement:

“I have personally signed this petition. I am a legal voter of the city of Portland. My residence and street number are correctly written after my name.”

The municipal enactment referred to demands that a petition must consist of sheets to which not more than 20 names can be signed, and the person who circulated the petition is required to make and subscribe to an oath on the back of each sheet to the effect that every one of the petitioners signed his name in the presence of the affiant who believes that the several clauses of the statement last quoted apply, and are true with respect to each petitioner.

“The auditor of the city of Portland shall accept for filing any petition for the initiative or for the referendum subject to the verification of the number and genuineness of the signatures and voting qualifications of the persons signing the same by reference to the registration books in the office of the county clerk of Multnomah County, and if a sufficient number of qualified voters be found to have signed said petition, he shall file the same within ten days after presentation thereof to him.” Section 5, Article IV of the Constitution of Oregon.
*74“Legal voters of the city of Portland are qualified to sign a petition for the referendum or for the initiative for any measure which he is entitled to vote upon. Any person signing any name other than his own to a petition or knowingly signing his name more than once for the same measure at one election, or who is not at the time of signing the same a legal voter of the city, or any officer or other person (un) lawfully violating any of the provisions of this ordinance, shall, upon conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment in the city jail not exceeding six months, or by both such fine and imprisonment in the discretion of the municipal court.” Section 11, Article IV, of the Constitution of Oregon.

In order to vote at an election held under the Portland charter, a person must have been a resident of that city for six months and of the ward or precinct in which he offers to vote for thirty days next preceding such election, and must also possess the qualifications of a legal voter of this State. Section 27, p. 13, Sp. Laws of Oregon, 1903. The qualifications thus added are that he must be a male citizen 21 or more years old and native bom, or, if of foreign birth, that he has declared his intention to become a citizen of the United States, conformable to the naturalization laws thereof, one year preceding such election, is not idiotic or insane, has not been convicted of a felony, and is not a soldier in the army or a seaman in the navy of the United States. Sections 2, 3, 5, Article II of the Constitution of Oregon. It will be remembered that the organic act declares that not more than 15 per cent of the “legal voters” shall be required to propose an initiative measure, while the ordinance of Portland directs the auditor of that city upon receiving an initiative petition to verify the number and genuineness of the signatures thereon, and to ascertain the qualifications of the petitioners- as electors, by referring to the registration books, and, if a sufficient number of “qualified voters” have signed the petition, it shall *75be filed. Registered electors are thus recognized as qualified voters, and only such as are competent petitioners to initiate municipal measures. The comparison of the handwriting of a petitioner with his signature on the registration books, which the ordinance demands of the auditor, was evidently designed to prevent forgery of names by persons who pretended to circulate initiative and referendum petitions for interested parties.

1. Such regulation necessarily tends to prevent fraud in securing petitioners, but in our opinion the qualification of registration is an unwarranted restriction of the right to exercise the initiative power, guaranteed by the constitution to legal voters.

2. Participation in the initiative of measures to be submitted to voters for their approval or repudiation is not an election wherein any choice is required to be made, but an initiative petition affords evidence of a desire on the part of a few persons that the expediency of a proposed law may be determined at the polls pursuant to notice thereof. No great prerogative of the people is violated by the organic act in prescribing a small percentage of legal voters as sufficient to inaugurate a proposed law. The inception of enactments having been delegated by the fundamental law to legal voters, the authority thus conferred is so closely allied to an election, however, that the privilege of signing an initiative petition cannot be abridged by any legislation that would amount to a deprivation of the right: White v. Commissioners, 13 Or. 317 (10 Pac. 484: 57 Am. Rep. 20).

In Roesch v. Henry, 54 Or. 230 (103 Pac. 439), it was held that the phrases “legal voters” and “registered voters” were synonomous, and that no qualified elector was a competent petitioner for a local option election, unless his signature appeared on the registration books of the county of which he was a resident. In that case the local option law had been enacted in the entire state *76pursuant to initiative petitions of “legal voters” (Section 1, Article IV, of the Constitution of Oregon), but the statute could be enforced in a county or a subdivision thereof or a precinct therein by petitions signed by “registered voters.” Section 4920, L. O. L. The local option law thus put into operation was an entire statute previously adopted. No measure was proposed by the petitioners as an act formulated by them. They undertook to secure the application of the law to a particular territory. They were powerless, to propose any change of the provisions of the statute which as an entire enactment could have been adopted or rejected in a designated district, and, such being the case, it was ruled, in effect, that limitation of the petitioners to “registered voters” was not violative of Section 1 of Article IV of the Constitution. In the case at bar, however, the measure proposed was not the application of an existing law to a particular district in which no change could be made in the enactment, but it was the presenting of an amendment to the charter as independent legislation in which the “legal voters” were granted the right to offer the proposed change in the municipal law.

3. It will be kept in mind that the ordinance prescribes maximum punishments for any violation of its provisions, and also demands that the person who circulated the petition shall make and subscribe his name to an oath as to the genuineness of the signatures of the petitioners. The law presumes that a person is innocent of a crime. Section 799, subd. 1, L. O. L. Based on such deduction, it follows that, when an initiative petition is presented having thereon the requisite number of names, subscribed to the statement that each has personally signed the petition, that he is a legal voter of the city of Portland, and that his residence and street number are correctly written after his name, and verified as required by the ordinance, a prima facie case is made, entitling the initiative *77measure proposed to be entered by a proper title upon the official ballots, and imposing upon the auditor the burden of showing any fraud attempted to be perpetrated.

A vigorous prosecution of any violation of the provisions of the ordinance will inculcate a decent respect for its observance, and though the punishment inflicted may not prevent, in the first instance, the initiation or reference of measures which should not be submitted to a popular vote, thereby entailing expenses and causing delays that are unnecessary, the remedy must be found in an amendment of the organic law changing the phrase “legal voters” to “registered voters” or some term of equivalent import.

4. Believing that the 800 or more petitioners who had not registered were prima facie legal voters, and as such could have exercised the right on the day of the election by producing the requisite proof, which is tantamount to registration (Section 3463, L. O. L.), they are “legal voters” as defined by the constitution, and hence the conclusion was reached that an error had been committed in overruling the demurrer. Reversed.