Othus v. Kozer , 119 Or. 101 ( 1926 )

This is an original proceeding in mandamus to compel the Secretary of State to accept and file an initiative petition for the purpose of submitting a certain measure to be voted upon by the people of Oregon at the next general election in November. The sole question involved is the number of signatures required in order to have placed upon the ballot an initiative measure. If the petition was not legally sufficient as to the number of signatures thereto, the Secretary of State was right in refusing to accept and file the same; but if it had the requisite number of names, then the writ must issue.

It appears from the alternative writ, to which a demurrer has been interposed, that the petition was signed by 13,773 registered voters of the state. The defendant, upon advice of the Attorney General, rejected the petition for the reason that it is not legally sufficient as to number of signatures.

The decision hinges upon the construction of that part of Article IV, Section 1, of the Constitution of Oregon which provides:

"The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters shall be required to propose any measure by such petition, * * The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted."

In the regular election in November, 1924, there were two justices of the Supreme Court to elect and the names of three candidates appeared upon the ballot. Each voter had the right to vote for two of the three candidates, but an analysis of the vote cast discloses that not every voter exercised such right. Some voted for only one candidate. A received 159,490 votes; B, 107,734; and C, 96,513. The total vote cast for all the candidates was 363,737.

Plaintiff contends that 12,760 signatures of legal voters of the state upon a petition — which is 8 per cent of the votes cast for A — is sufficient in order to submit an initiative measure to a vote of the people. Defendant asserts that this is not the proper basis for computation. Shall we take as a basis for determining the number of signatures necessary for an initiative petition 8 per cent of the greatest number of votes any candidate received? Shall we take 8 per cent of the total vote cast for all of the candidates? Is the proper basis, as suggested by the Attorney General, 8 per cent of the total vote cast for all of the candidates, divided by the number to be elected? These are the questions which are of concern to the court. We are not impressed with the suggestion made by Mr. U'Ren in oral argument that the vote for Attorney General be taken as a basis, as such is wholly at variance with the plain mandate of the Constitution. We must look to the vote for justice of the Supreme Court.

In considering the above act it is important to bear in mind that the construction given must be such as will not violate the plain and explicit provision that "not more than 8 per cent of the legal voters of the state shall be required to propose any measure by such petition." Eight per cent of the total vote for all candidates is 29,100. Assume that there were six candidates and that 8 per cent of their total vote exceeded 8 per cent of the legal voters of the state. In such event there would be a direct conflict between these two provisions of the Constitution. Under this construction the method provided to determine the proper basis would lead to an absurdity. In 1914, the total vote for justices of the Supreme Court was 701,846; in 1918, 225,828; and in 1920, 694,468. Judging from the records of past elections, it is thus apparent that 8 per cent of the total vote for all candidates for justice of the Supreme Court generally exceeded 8 per cent of the legal voters of the state. It is not reasonable to assume that the framers of this act intended that the number of signatures required on an initiative petition should depend upon the number of justices of the Supreme Court to be elected. In other words, under this proposed construction, where, at the regular election next preceding, there are four to elect, it would require approximately four times as many signatures to submit a measure to a vote of the people as it does when there is only one officer to elect. We think that the primary object is to determine the number of voters who thus voted, rather than the number of votes cast.

Let us consider the method of computation as proposed by the Attorney General, i.e., to take 8 per cent of the total vote and divide that by the number of positions to be filled. In 1920, 694,468 votes were cast for justices of the Supreme Court. Eight per cent of this number divided by five, or the number of positions to be filled, is 11,112, or the number of signatures required on an initiative petition. In 1914, 701,846 votes were cast for justices of the Supreme Court. Divide this number by three, or the number of officers to be elected, and the result is 105,374 more votes than any candidate received. In 1924, 363,741 votes were likewise cast. Eight per cent of this number divided by two, or the number of positions to be filled, is 14,550, or the number of signatures necessary to initiate a measure according to the contention of defendant. While this method of computation impresses us as fair, it is, in our opinion, not warranted by any possible construction of the language of the act, and is entirely an arbitrary standard. The fallacy of this argument, as applied to the instant case, is that not every voter exercised the right to vote for two justices of the Supreme Court. Many voted for only one candidate, as an analysis of the vote discloses.

The latter part of the act, which provides the method of ascertaining the number of signatures necessary on an initiative petition, is ambiguous and uncertain. It tends toward confusion rather than clarity. It is evident that there is no way of ascertaining with any degree of certainty the number of voters who voted for justice of the Supreme Court without opening the ballot-boxes and actually examining each ballot. This, of course, is highly impracticable, and not to be considered.

When an act has a doubtful or ambiguous meaning, it is the duty of the court to adopt that construction which will make it operative and to carry out, so far as possible, the intention of the people who enacted it: Rathfon v. Payette-Oregon SlopeIrr. Dist., 76 Or. 606 (149 P. 1044). As stated by Mr. Justice HARRIS, speaking for the court, in Union Fishermen's Co. v.Shoemaker, 98 Or. 659 (193 P. 476, 194 P. 854):

"In construing a statute, ascertainment of the intention of the legislature is the ``consummation devoutly to be wished'; and, if the words of the statute are not of themselves sufficiently explicit to manifest the intention of the lawmakers, the intention is then to be ascertained by considering the context, the subject matter, the necessity for the law, and the circumstances under which it was enacted, the mischief sought to be remedied, and the object to be attained; 25 R.C.L. 1012, 36 Cyc. 110. If, however, the intention of the legislature cannot be discovered, the court should give the statute a reasonable construction consistent with the general principles of law; 36 Cyc. 1108."

Furthermore, if the language of an act admits of two constructions, one absurd and mischievous, and the other reasonable and wholesome, courts will adopt the latter construction: State v. Gates, 104 Or. 112 (206 P. 863).

Under the circumstances, we think it proper to consider contemporaneous construction given this act by administrative officers. This principle was recognized in Kelly v. MultnomahCo., 18 Or. 356 (22 P. 1110), wherein the court said:

"In all cases where those persons whose duty it is to execute a law have uniformly given it a particular construction, and that construction has been acquiesced in and acted upon for a long time, it is a contemporary exposition of the statute, which always commands the attention of the courts, and will be followed unless it clearly and manifestly appears to be wrong."

In Brown v. United States, 113 U.S. 568 (28 L.Ed. 1079,5 Sup.Ct.Rep. 648, see, also, Rose's U.S. Notes), a question arose as to the construction of an act of Congress providing for the retirement of "officers of the navy," and the court said:

"It must be conceded that, were the question a new one, the true construction of the section would be open to doubt. But the findings of the Court of Claims show that soon after the enactment of the act the President and the Navy Department construed the section to include warrant as well as commissioned officers, and that they have since that time uniformly adhered to that construction, and that under its provisions large numbers of warrant officers have been retired. This contemporaneous and uniform interpretation is entitled to weight in the construction of the law, and, in a case of doubt, ought to turn the scale."

In 1920, there were four candidates in one class on the ballot and four to elect. In a separate class on the same ballot there were three candidates and one to elect. Henry J. Bean received 165,752 or the greatest number of votes of any of the candidates. The Secretary of State used this vote as the basis for determining the necessary number of signatures on an initiative petition. While the precise question at bar was not involved, this construction was tacitly approved in State ex rel. Carson v. Kozer, 105 Or. 486 (210 P. 179), as the court stated:

"An initiative petition, to be sufficient, must bear the signatures of 13,261 legal voters."

It is significant that this number is 8 per cent of the Henry J. Bean vote. The administrative officer in the instance last mentioned did not take 8 per cent of the total vote cast nor did he divide 8 per cent of the total vote by the number of positions to be filled.

In 1922, there were three candidates for justice of the Supreme Court and three to elect. The same method of computation was followed by the Secretary of State and Geo. H. Burnett's vote of 168,724 was taken as a basis. The total vote cast for all of the candidates was 487,885. Again this court adopted such construction inKellaher v. Kozer, 112 Or. 149 (228 P. 1086). It was there said:

"To initiate this measure it was necessary, under the statute, that the petition should be filed not later than four months before the date of the election and that it should be signed by not less than 13,498 legal voters."

Eight per cent of the Burnett vote is 13,498.

Election laws should be liberally construed: State exrel. Davis v. Wolf et al., 17 Or. 119 (20 P. 316); State exrel. Erickson v. Sanborn et al., 101 Or. 686 (201 P. 430). The great constitutional privilege of a citizen should not be taken away by a narrow or technical construction of a law regulating the exercise of such right. We have before us an act which is of doubtful construction. It would seem that the doubt should be resolved in favor of the exercise of the right of the people to initiate a law if they see fit so to do. We see no good reason to depart from the construction heretofore given this act by officers whose duty it is to administer it.

Eight per cent of the greatest number of votes any candidate receives for justice of the Supreme Court at the regular election last preceding is held to be a proper basis for ascertaining the necessary number of signatures of legal voters of the state upon an initiative petition. It is conceded that this construction is not free from criticism, as it is certain in 1924 A did not receive all of the votes cast for justice of the Supreme Court, but the basis selected will at least tend toward clarity and give operative effect to the law under consideration.

The demurrer to the alternative writ is overruled and a peremptory writ will issue.

DEMURRER OVERRULED.

BROWN and COSHOW, JJ., were absent.

RAND, J., did not participate in this decision.