Opinion
No. 12,213.
Decided September 29, 1928.
On protest to petition to initiate a measure to repeal the civil service amendment. Protest sustained.
Affirmed.
1. INITIATIVE AND REFERENDUM — Petition — Sufficiency. Under C. L. § 29, concerning initiative and referendum, the date upon which a signer affixes his signature to a petition to initiate a measure is insufficient where the year is omitted.
2. Petition — Sufficiency. Signatures to a petition to initiate a measure, where the signer's residence can be identified by street and number, should be rejected if these are lacking.
3. Petition — Sufficiency. Where two or more signatures on a petition to initiate a measure are in the same handwriting, all such must be rejected.
4. Petition — Sufficiency. Where sections of a petition to initiate a measure have been tampered with after the signatures have been affixed thereto, they must be rejected.
5. Petition — Fraud — Perjury. The statute concerning petitions for initiating a measure makes it a felony for one person to sign for another, and a circulator who makes oath to the genuineness of such signatures — if done with knowledge — is guilty of perjury.
6. Petition — Protest — Court Proceedings. Where a petition to initiate a measure is protested before the secretary of state, after whose decision the matter is taken into court, the case is before the court for review and not for trial de novo.
7. Petition — Protest — Duty of Secretary of State. Where a petition to initiate a measure is protested before the secretary of state, that official in making up his findings should specify the names or categories of names which he finds should be rejected.
Error to the District Court of the City and County of Denver, Hon. Charles C. Sackmann, Judge.
Mr. PHILIP HORNBEIN, Mr. JAMES A. WOODS, for plaintiffs in error.
Mr. PAUL W. LEE, Mr. GEORGE H. SHAW, Mr. DONALD C. McCREERY, for defendants in error.
CERTAIN persons protested a petition to initiate a repeal of section 13 of article XII of the Colorado Constitution known as the Civil Service Amendment. The secretary of state sustained the protest, and the district court, upon review, affirmed the secretary's action, whereupon the petitioners brought the case here for review under C. L. § 31.
The number of names necessary to a valid petition is 23,085. The petition bears 31,280 names, a surplus of 8,195. The statute which fixes the essentials of such a petition, C. L. § 29, reads as follows: "All initiative and referendum petitions shall be signed by qualified electors in their own proper person only, to which shall be attached the residence address of such person, including street and number, if any, and the date of signing the same. To each such petition shall be attached an affidavit of some qualified elector that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing said petition was at the time of signing a qualified elector."
1. The petitioners concede that the following names should be rejected:
(a) Where no day or no month is stated in date of signing,.............................. 458 (b) Names with double addresses,............... 27 (c) No town or city given in address,.......... 230 (d) Six sections of petition which contain forgeries,.................................. 600 (e) One section from Alamosa with various defects,............................... 100 (f) Sections verified by one not knowing facts, 187 (g) Unintelligible addresses,.................. 56 (h) Section circulated by a minor,.............. 100 (i) Business, instead of residence, addresses,.. 27 ----- 1,785
2. We are of the opinion that dates in which the year was omitted are insufficient because it would permit fraud by using the separated sheets in later petitions for other purposes and thus frustrate the purpose of the dates. The number of such names is conceded to be................. 2,615
3. There are many names where the address lacks the street number, though either by judicial notice or by other signatures or by other evidence we know that the signers presumably had residences with street numbers. A majority of the court think these should be rejected. The protestants claim these number 3,055, the petitioners concede 2,808. Neither the secretary nor the court made any specific finding on this point, but the secretary upon proof by the protestants in support of this objection to certain names and their offer of further proof, declared himself satisfied as to the whole claim.................. 3,055
4. Two or more signatures appear in the same handwriting; both must be rejected................ 553
5. About thirty-eight sections are shown by evidence to the satisfaction of the secretary of state to have been tampered with after signing so that over three thousand names thereon must be rejected ...................................... 3,000 ------ 11,008 6. Less duplication between items 2 and 3.... 360 ------ 10,648
If we substract this from 31,280, we shall have 20,632, which is 2,453 less than the necessary number. This requires the affirmance of the judgment.
There are nearly one hundred sections of the petition the required affidavit to each of which is false, in that in at least one instance in each section two or more names are written by one hand. It is conceded that such names must be rejected, but protestants claim that the falsity of the affidavit in respect to such names destroys its force as to all other names in such section and so destroys the integrity of the section as would the separation of the sheets and alteration of the section ( Elkins v. Milliken, 80 Colo. 135, 249 Pac. 655) and that such sections should be rejected entirely. This would reject some nine thousand names and would alone vitiate the petition, but we are not unanimous on the point so we rest our decision on the matters itemized above.
The record, as stated above, shows several hundred cases where one person has signed for another. The statute makes this a felony. The circulator in these cases has made oath to the genuineness of the signatures. If done with knowledge this was perjury. Nearly half of the sections of the petition have been circulated with reckless disregard of the law. The guilty should be prosecuted and punished.
The district court held that it was a court of review and not for trial de novo. A majority of this court think that was right under C. L. § 31.
The secretary of state made no specific findings. It would have been a great aid to the district court and to this court if he had specified the names or categories of names which he found were to be rejected. We hope in any future case he will do so.
The judgment is affirmed.
MR. JUSTICE BURKE was not able to attend the oral argument and since his vote is not necessary to a decision and would not affect the result he does not participate herein.
MR. JUSTICE ADAMS and MR. JUSTICE WALKER dissent.