State ex rel. Laird v. Hall , 49 N.D. 11 ( 1921 )

Bronson, J.

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 qualified voters wbo voted at the general election for the office of governor. It is further alleged, and affidavits attached to show, that the recall petitions on an extensive scale were signed by the same individuals twice, or more times; that persons who were not electors or citizens had signed such petitions; that names had been copied ujjpn such petitions in the handwriting of the same person and that these conditions exist to such an extent as to show, from partial investigation made, among other things, that more than 5,000 persons signed their names twice upon such petitions; that more than 1,000 persons signed the same whom were not citizens of the state and more than 10,000 signed such recall petitions who did not vote for the office of governor at the general election, all of which would bring the requisite number of signers upon the petitions below the 30 per cent required by tho constitutional amendment. It is the contention of the petitioners that the election held on October 28th, 1921, was void by reason of the insufficiency of the petitions and that, therefore, a writ should be issued to prevent further illegal or void proceedings.

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; State ex rel. Twichell v. Hall, 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-plieable, and other cognate law in order that such discretion may be exorcised pursuant to the constitutional amendment. It is certain that if the recall petitions filed, appeared on their face not to have been signed by the requisite percentage required'by the constitutional amendment, nor to signed at all by qualified electors, the discretion of the secretary of state would forbid either the filing of the petitions or the calling of a special election. In the cognate law existing prior to and at the time of, the adoption of the recall constitutional amendment, the duty is imposed upon the secretary of state concerning initiative and referendum petitions to pass upon each petition, and if he finds it insufficient to notify the committee for the petitioners and allow twenty days for correction or amendment. His decision in regard to any such petition is made subject to review by this court. Article 26, Const. Amendment. It is further provided in such article that if the sufficiency of such petition is being reviewed at the time the ballot is being prepared, the secretary of state shall at the time the ballot is being prepared, place the measure on a ballot and no subsequent decision shall invalidate such measure if at such election it is approved by a majority of the votes cast thereof.

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, 600, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Gongwer v. Graves, 90 Ohio St. 311, 107 N. E. 1018. The fact that the secretary of state possessed this duty ánd the right' to exercise this discretion and to pass upon the sufficiency of the petitions did not forbid a resort to the courts to review an abuse of discretion by such secretary of state or any fraudulent acts in connection therewith. Accordingly, prior to the election, there existed two methods for questioning the sufficiency of the recall petitions. One, by acts of objection, before the secretary of state, to the sufficiency of such petitions; the other, by proceedings in court to. review or control the acts of the secretary of state thereto.

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, based upon the present application and the constitutional amendment concerned.

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 determination of these rights anterior to the time of holding a recall election, have been provided. Necessarily, those agencies which have the authority to pass upon the sufficiency of recall petitions prior to a recall election, must be a determining and final authority? Otherwise, it follows that the respective concurrent right of the electors to propose, or, of the electors to object, to recall petitions, may be rendered, in either event, nugatory or useless by the individual action of either after an election, in fact, has been held. Manifestly, where no objection has been made before the secretary of state nor any proceedings taken in court anterior to the holding of a recall election, and where the electors proposing recall petitions are not given any opportunity to exercise their concurrent right, it must be presumed that the secretary of state, in passing upon the recall petitions, has performed his duty. In State ex rel. Little v. Langlie, supra, an action of mandamus was instituted to compel the removal of county offices from Hillsboro to Caledonia upon the ground that the latter was still the lawful county seat. The action was brought after an election had been held and a statutory vote cast for the removal of the county seat to Hillsboro. The validity of the election was attacked upon the ground that the petition presented to the county commissioners was signed by an insufficient number of voters. This court held that, after an election had been held and a sufficient vote had been cast in favor of a place, to work a change of the county seat to such place, the question whether the petition had upon it the requisite number of names was not open to judicial investigation; that, while a sufficient petition was undoubtedly necessary, yet the question lay deeper than that; that the pregnant inquiry was what body was to settle the matter finally; that after an election had been held this court was impelled to the conclusion that the decision of the board was final. See 50 L.R.A.(N.S.) 231, note; L.R.A.1916D, 1107, note; Good v. San Diego, 5 Cal. App. 265, 90 Pac. 44; Conn v. Richmond, 17 Cal. App. 705, 121 Pac. 714, 719; Dunham v. Ardery, 43 Okla. 619, L.R.A.1915B, 232, 143 Pac. 331, Ann. Cas. 1916A, 1148; Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985. Further, after the holding of such election, it must be presumed that electors objecting to such recall petitions have acquiesced in the presumption that the secretary of state has so performed his duty. To otherwise hold would, in effect, simply make the expressed will of tbe electorate at an election a sporative play to be resolved thereafter into a reality by a determination of validity or invalidity dependent upon proceedings that might be had concerning the sufficiency of recall petitions. This could serve no other purpose than to introduce into governmental affairs hopeless confusion and uncertainty in governmental operations. Assuredly, the recall constitutional amendment contemplates no such construction nor may any such construction be gleaned from the statutory or cognate law. It is well recognized in this state that canvassing boards do not possess judicial functions. They are not concerned with the validity or invalidity of an election. Their duty simply comprehends the reception of the returns and the declaration of the results shown thereby. See State ex rel. Sunderall v. McKenzie, 10 N. D. 139, 86 N. W. 231. The state canvassing board does not even issue the certificate of election. This is issued by the secretary of state. Comp. Laws, 1913, § 1020. It is .manifest that the action of the state board of canvassers can neither validate or invalidate the special election held. It would be highly improper for this court, by equitable interposition, to determine the validity of the election concerned, in any event, by injunctive process against such state canvassing board, see State ex rel. Byerley v. State Canvassers, 44 N. D. 126, 172 N. W. 85.

Bor the reasons stated, the application must be denied.