Coghlan v. Cuskelly

Article 33 of the amendments of the constitution of North Dakota, provides:

"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 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.

"The officer against whom such petition has been filed shall continue to perform the duties of his office until the result of such special election shall have been officially declared. Other candidates for such office may be nominated in the manner as is provided by law in primary elections. The candidate who shall receive the highest number of votes shall be deemed elected for the remainder of the term. The name of the candidate against whom the recall petition is filed shall go on the ticket unless he resigns within ten days after the filing of the petition. 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. This article shall be self executing and all of its provisions shall be treated as mandatory. Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper, restrict or impair the right of recall."

On May 18, 1932, a petition to recall Senator Jones of the 48th Legislative District was filed with the defendant Cuskelly, county auditor of Dunn county, the senior county of the 48th District. This petition purported to be signed by 2504 electors. The number of signatures required pursuant to article 33, supra, was 1710, being 30 per cent of the number of votes cast for governor at the last election. On May 20, a petition was filed with the defendant purporting to be signed by 921 of the electors who had signed the recall petition filed on May 18, requesting that their names be stricken and withdrawn from the recall petition. On May 20, a supplemental recall petition signed by 354 additional electors was filed, and between that date and May 23 further withdrawals of signatures on the original recall petition in the number of 268 were filed. The defendant auditor held that by the filing of these withdrawals the signers thereof had removed their signatures from the recall petition and that thereby the number of signatures thereon was reduced below the requisite 30 per cent and so the petition was not sufficient. Accordingly, he refused to call the special election.

Thereupon on May 24th the petitioner applied to the district court of the Sixth Judicial District for an alternative writ of mandamus to be directed to the defendant auditor to compel him to call an election. The defendant appeared on the return day and moved to quash the alternative writ on the ground that the application was premature in that it was brought before the expiration of the five day period within which the auditor might determine the date of the election. The district court denied the motion to quash. Thereupon the defendant filed his return, setting up the facts with reference to the filing of the petitions and of the withdrawal petitions. The facts were all stipulated. No oral evidence was offered. The parties further stipulated that the only question for decision was whether or not electors who have signed a recall petition may withdraw their signatures therefrom, and if in the instant case the first withdrawals of 921 names may be considered, whether or not the second withdrawals filed after the supplemental recall petition was filed may also be considered. The district court held that at once the petition was filed with the county auditor it was too late for any signer thereof to withdraw his signature therefrom, as jurisdiction coupled with a mandatory duty to call the election attached with the filing of the petition. In accordance with this holding a peremptory writ was ordered. This appeal is from the judgment entered accordingly.

It is to be noted, first, that no point is made because the proceeding is brought by the plaintiff individually and not in the name of the State on his relation. We take it that this point is waived and that the proceeding is to be considered as though brought on the relation of the plaintiff.

The defendant predicated his motion to quash on the theory that the proceeding was prematurely brought; that the auditor under article 33, supra, had a period of five days within which to consider the petitions and pass upon their sufficiency, and that until the expiration of such five day period no coercive writ might be procured. We think, however, that this contention cannot be sustained for the reason that it sufficiently appears from the moving affidavits that the auditor had unqualifiedly refused to order the election.

The principal and determining question on this appeal is that which is stated in the stipulation of the parties; that is, as to whether an elector who has signed a recall petition which is subsequently filed with the officer charged with the duty of calling the election may, after the filing of such petition and before the election has been called, withdraw his signature therefrom.

It should be noted first that article 33 among other things, provides: "This article shall be self executing and all of its provisions shall be treated as mandatory. Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper, restrict or impair the right of recall." A provision identical in form is also contained in articles 26 and 28 of the amendments. Pursuant to this provision of these several articles, chapter 135, Sess. Laws 1925 was enacted. This statute prescribes the manner in which petitions shall be signed and filed, and penalizes a violation of its provisions. In Wood v. Byrne,60 N.D. 1, 232 N.W. 303, involving an initiative petition, and again in Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741, involving a referendum petition, we construed chapter 135, supra, and said concerning the same that the legislative intent in adopting it was to regulate and facilitate the circulation of such petition so as to aid the secretary of state in passing upon each petition as required by the provisions of the constitution, and that the act must be liberally construed so as to effect its purpose. These cases arose under articles 26 and 28 of the amendments of the constitution providing for the initiative and the referendum respectively. These articles differ from article 33 now under consideration, among other things in this, that article 26 — and the same provision is expressly made applicable to article 28 — provides that "The secretary of state shall pass upon each petition, and if he finds it insufficient he shall notify the ``committee for the petitioners' and allow twenty days for correction or amendment. All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. . . . If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it," while there is nothing in article 33 touching the circulation of petitions, the determination of their sufficiency, the duties of the officer with whom such petitions shall be filed or the special election to be held thereunder, excepting that such petitions shall be filed with such officer and that he "shall call a special election to be held not less than forty or more than forty-five days from the filing of such petition." But in State ex rel. Laird v. Hall, 49 N.D. 11, 186 N.W. 284, decided in 1921, and involving the recall provision, article 33, supra, this court held, as stated in the first paragraph of the syllabus: "In filing recall petitions and calling a special election thereupon, the secretary of state exercises a duty and a discretion concerning the sufficiency of such recall petitions." Of course it goes without saying that the legislature has no power to add to or take from the powers and duties of the officer in question. All it can do is to enact laws to facilitate the operation of the article. And so this must be and was held to be the purpose of chapter 135, supra. But in considering the statute with respect to article 33, it must be borne in mind that it was enacted subsequent to the decision of State ex rel. Laird v. Hall, supra, and that it makes specific reference not only to the initiative and the referendum but also to the recall. So we think that this statutory enactment must be given the same construction and effect with respect to article 33 as with respect to articles 26 and 28 of the amendments.

Since the officer with whom recall petitions must be filed is vested with discretion concerning their sufficiency, our next inquiry is as to when that discretion must be exercised. The first duty of this officer is to file such a petition when it is presented to him. If the petition is fair on its face he must receive it and file it. We have heretofore pointed out the difference between articles 26 and 28 and the article now under consideration. No provision is made in article 33 with reference to this matter other than that the petition must be filed. No procedure is prescribed nor machinery provided whereby the filing officer can investigate into the merits of the petition or go beneath its surface to pass upon its sufficiency. When an elector signs a recall petition, he does so under power reserved to him by the constitution. When he and his co-signers file their petition they determine the time when their petition shall become effective. They and not the filing officer determine this fact. So we are forced to the conclusion that if the petition is fair on its face he must receive it, and having received it the petition must be considered filed as of the date when it was received. No other construction of this article is practicable and no other construction will reasonably facilitate its operation and effect its purpose. The article is general in its application, it applies to all elective state, county, judicial and legislative officers. The number of electors concerned may vary from a few hundred to hundreds of thousands. Under these circumstances, and especially in the absence of any provision for procedure or machinery to enable him to make a preliminary investigation, no other conclusion is possible. See State ex rel. Plain v. Falley, 8 N.D. 90, 76 N.W. 996.

In the instant case the petition was received and filed. The facts are thus stipulated. It is the appellant's contention that under the provision that the election must be called to be held not less than forty or more than forty-five days from the filing of such petition, a five day period is given to the filing officer within which to scrutinize the petitions and pass upon their sufficiency, including the validity of the signatures and the qualifications of the signers. It seems to us, however, that the provision thus relied upon was not for this purpose and cannot be given this effect. Rather, it was for the purpose of enabling the officer charged with the duty of doing so to fix a proper and convenient day on which the election must be held, for if an arbitrary time after filing were fixed without any room for variation, the election might fall upon a holiday or some other day on which for one reason or another it might not be advisable to hold it. So the officer's discretion by reason of this particular provision is limited to the selection of a day for the election within a five day variation. Neither do we think that the election must necessarily be called within five days from the filing of the petition. Article 33 provides that an election must be called to be held not later than forty-five days after the filing of the petition. Necessarily, this contemplates a good petition — a petition signed by qualified electors equal in number to at least 30 per cent of the number voting to fill the office of governor in the particular district at the last preceding election. There is no provision fixing the date on which or the period within which he must act in calling the election. It may be called at any time prior to the date selected so only that sufficient time intervenes to enable the election to be properly called and had. The only requirement imposed upon the officer in this respect is that he must act with reasonable celerity.

The filing of the petition sets in motion the machinery which results in the election. The time is limited within which the election may be held. The officer with whom the petition is filed "shall call an election to be held not more than forty-five days from the date of the filing." There is no provision for hearing on the petition or for protest or remonstrance. There is no provision for the withdrawal of signatures. There is no provision for correction or amendment, and in this respect as we have heretofore pointed out, article 33 differs from articles 26 and 28. When a petition is filed it is in fact either good or bad, either sufficient or insufficient. If it is good and sufficient the officer has no discretion thereafter except that permitted him by reason of the five day variation for the date of the election. He "shall" call the election. If the petition is insufficient and bad then, though the petition has been filed, he must refuse to call the election. As we have shown above, in filing such a petition and calling a special election thereupon, he is vested with a discretion concerning the sufficiency of the petition. Chapter 135, supra, was enacted to aid him in exercising that discretion, but in its exercise at the time of the filing of the petition he can only determine as to whether or not it is sufficient upon its face. So it seems to us, considering the mandatory character of article 33, that the petition must be determined to be good or bad as of the date when it is filed. Taking into account the peremptory direction to the filing officer by reason of the filing, we can come to no other conclusion. See Seibert v. Lovell, 92 Iowa, 507, 61 N.W. 197, cited with approval by this court in Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.(N.S.) 372. In this connection it must be remembered that in the instant case there is no question as to the sufficiency of the petition as of the date of its filing with the defendant auditor.

Many cases may be found in the books touching upon the right to add to or withdraw signatures from jurisdictional petitions. These cases arose under a variety of conditions and circumstances. They disclose that there is a marked diversity of holding with respect to the question of the right to withdraw. This is illustrated by the cases cited in the note to Sim v. Rosholt, supra. See also cases cited in notes in 15 Ann. Cas. 1125; Ann. Cas. 1916B, 823; 35 L.R.A.(N.S.) 1113; 50 L.R.A.(N.S.) 195; L.R.A. 1916D, 1102; and L.R.A. 1917B, 15. But almost without exception each of these cases turns upon the wording of the particular ordinance, statute, or constitutional provision under which it arises and is of no great value as a precedent except in the consideration of a similar provision.

We therefore hold that after the petition in the instant case was filed it was too late for any signer thereof to withdraw his signature therefrom. The judgment must accordingly be affirmed.

BURR and BURKE, JJ., concur.