Wiley v. Reasoner

Mr. Justice Eakin delivered the opinion of the court. The following contentions are made by plaintiff: (1) That the signers on petitions for a local option election were not registered voters; (2) that the order of the County Court calling the election was invalid; (3) — 106 — proper notices of the election were not given; (4) that the election was not held upon the day appointed by law; and (5) that the votes of 506 persons who were not registered were cast and received. 1. The petition before the County Court asking that an election be held to determine whether the sale of intoxicating liquors in the municipality of Hillsboro shall be prohibited alleges that the petitioners are legal voters of the municipality of Hillsboro. His place of residence within Hillsboro is given opposite the signature of each petitioner. The clerk certifies that 143 of the petitioners were registered voters, which were more than the number required. Of course, the clerk’s certificate was made from the registration of 1913 under the registration law of that year, which this court thereafter, on November 25, 1913, held to be unconstitutional; but the election was held on November 4th, prior to the decision, and it was too late for the plaintiff to question the qualifications of the petitioners after the election had taken place, at least without proof that the petitioners were not legal voters within the city.. The registration law was held void only because the taking effect of it was made to depend on the approval of the Supreme Court. The registration- taken thereunder actually disclosed that those registered were legal voters when certified by the clerk; and the election and vote taken thereat should not be held void and a community disfranchised by reason of a defect in the law that would not affect the right of the petitioners to sign the petition. In the designation of who may petition for a local option election in Section 4920, L. O. L., namely, “registered voters,” the word “registered” may be considered as surplusage under the circumstances found here. Had the petitioners been registered only under the 1899 registration law, the petitions would not have been received or acted on by the County Court; and, if it was not suffi — 107 — eient that they were registered under the 1913 law, then Section 4920 contains an impossible requirement as to registration when there was no means of compliance available to the petitioners, and the petitions, if signed by voters qualified as to such under the requirements of the Constitution, constituted a substantial compliance with the statute. The court will not hold the petitions insufficient for that defect without proof that the signers were not legal voters, the duty to establish which devolved upon the plaintiff. The purpose of the petitions and the order of the court are only a method by which the electors may secure the submission of the local option question to the voters; and, the election having been called and the vote taken, the result should not be disturbed by reason of an irregularity in a preliminary proceeding that does not go to the qualifications of the signers. It may be jurisdictional that the petitioners be registered, but that can only be true in case there is a recognized registration, or an opportunity to register. It must be borne in mind that at the time of the signing of the petitions asking for the election, at the time the clerk certified that the petitioners were registered voters, and when the court made the order, as well as when the election was held thereunder, the registration law of 1913 (Laws 1913, p. 623) was recognized as being in force, and that the registration law of 1899 (Laws 1899, p. 119) had been repealed. And to now hold that only voters registered under the 1899 law could petition for the election would be to hold that it was not possible for the voters to petition for a local option election during the year 1913, and also to hold that the state election held on that day was void which was conducted under that registration law. In other words, the 1913 registration law operated as a trap that would defeat a local option election and as a fraud upon the electors of Oregon, namely, that those registered under the 1913 — 108 — law could not petition because it was void, and those registered under tbe 1899 law could not petition because, as tbe law then stood, it had been repealed. But tbe rights of tbe voter cannot be so trifled with. So far as tbe petitions were concerned, they were actually registered under tbe void law, tbe only registration that could have been recognized when tbe court ordered the election; and we will not bold tbe order calling tbe election void without proof that tbe petitioners were not legal voters. 2. Again, it is contended that, because 506 of tbe votes cast at tbe election were registered under tbe 1913 registration law, they were not qualified voters; that they did not, when presenting their votes, take tbe affidavit blank A of Section 3449, L. O. L., and therefore that their votes were illegal, and tbe election should be held void. Tbe County Court acted on tbe registration law of 1913 as a valid law, as did tbe county clerk, tbe election officers, and tbe voters. It was not questioned that those parties' who registered thereunder were legal voters under tbe Constitution. Tbe registration law was not enacted to add to or take from those qualifications, but only to place a safeguard around tbe elective franchise; and, although tbe law was declared unconstitutional because tbe taking effect thereof was made to depend on tbe approval of an authority other than tbe legislature or tbe vote of tbe people, yet, until so held void, it operated as such protection to tbe election of November 4th. Tbe observance of it by tbe voter was such evidence of bis right to vote as would justify tbe acts of tbe County Court and tbe election boards. Tbe voter by bis faith in tbe validity of tbe law performed every act that would have been required of him under tbe registration law of 1899, as amended. The County Court, tbe voters, and tbe election boards acted with tbe understanding that tbe registration law of 1899 and amendments bad — 109 — been repealed, and tbe election sbonld not be beld void so long as those voting were legally qualified under tbe Constitution. It was urged at tbe argument tbat every voter who is not registered is to be considered challenged, and must swear in bis vote upon blank A. If it were now assumed tbat there was no registration, tbe affidavit of tbe voter taken in tbe attempted registration under tbe registration law of 1913, containing the facts required by blank A, was before tbe election boards, and tbe voters may be deemed to have thereby complied with tbat requirement, and is no objection to tbe legality of tbe election. A duplicate of tbe registration card was in tbe possession of tbe election (Section 4 of tbe act), and tbe precinct registers were sent to tbe several precincts, together with tbe other election supplies (Section 18). However, if not so considered, tbe election officers could not have acted other than they did in tbat particular, and tbe legality of tbe election cannot be questioned on tbat account. 3. Tbe sufficiency of tbe notice of tbe election is also questioned by plaintiff. It appears tbat tbe city as a political entity is composed of but one voting ward, and for tbe purposes of tbe city election but one set of notices would have been required, and but one polling place established; but this was a county election as to tbe portion of tbe county included within tbe city, covering parts of two precincts. Whether two voting places were necessary may well be doubted. As relates to tbe city, there were no precincts by reason of tbe neglect of tbe County Court to constitute tbe city a precinct or to set it off into such precincts as would have been necessary and convenient under Section 3304, L. O. L., and tbe home rule amendment of tbe Constitution (Section 2, Article XI. See State v. Schluer, 59 Or. 18 (115 Pac. 1057). Under tbe conditions as then existing, tbe city could not vote by pre — 110 — cincts, as there were none; the election being necessarily confined within the city limits: State v. Perkins, 61 Or. 163 (121 Pac. 797). The first notices provided for only one voting place as in city elections. This was in proper form and posted 14 days before the election. Afterward, the county clerk deeming that there should be a voting place in each of the two precincts that included the city, notices were posted within the city in the two precincts; thus providing a polling-place in each. However, the last two notices were posted only 5 days before the election, while the statute requires them to be posted at least 12 days. A similar dilemma as to precincts occurred in Lane County (State v. Perkins, 61 Or. 163 [121 Pac. 797]), and probably in other counties, through the fault or neglect of the County Court in failing to adjust the county voting-precincts to meet the changed conditions by the home rule amendment of the Constitution. In any event, it was not possible that the voters did not have notice of the election by virtue of the first notices, as they were the usual notices for the city, and the second notices made no change therein, except to provide an additional voting place; and the election should not be set aside because of the omission of the County Court without proof that some qualified electors were deprived of the right to vote by reason thereof. The notices were a substantial compliance with the requirements of the statute. The election officers made every effort to comply with the law as they understood it, and, no doubt, those efforts were effectual. 4. It is also urged by plaintiff that the local option election can be held only within a city in a year in which there is no general state election, in case the regular city election occurs on the first Tuesday after the first Monday of November. It is true that much uncertainty, trouble and often expense would be avoided if the city would place its regular elections — 111 — on that day, but a local option election in a city cannot be held in an alternate year at the time of the city election which is not held on the first Tuesday after the first Monday in November. Section 4922, L. O. L., provides: “The election hereunder shall be held only on the first Tuesday after the first Monday in November of any year. The petition therefor shall be filed with the county clerk not less than thirty nor more than ninety days before the day of election. In every county, subdivision of county, or precinct thereof that shall return a majority vote for prohibition, at any election, the law shall take effect on the first day of January following the day of election. The elections provided for by this act shall be held at the regular voting place or places within the proposed limits and by the judges and clerks of election appointed and qualified under the general election laws of the state, or if held at the time of a city election, then within said city or town by the judges and clerks appointed and qualified under the charter of such incorporated city or town or under the laws of the state regulating such city or town election, and the returns thereof shall be made in conformity with the provisions of the said general election laws. [If, under the provisions of this act, an election shall be demanded wholly or in part in any incorporated city or town or any ward or precinct therein, to be held at the time of the city or town election occurring in a year in which there is no general election, then the county clerk shall notify the proper authority of such city or town that such election has been demanded in order that such city or town authority may cause the official ballots to be prepared in accordance with the provisions of this act, and the city auditor, or clerk, or recorder, as the case may be, shall make return to the county clerk of the vote for and against prohibition in the several precincts of said — 112 — city or town, and thereafter said matter shall proceed as in the case of a general election.]” The part of the quotation contained in brackets applies to elections in cities only in the alternate years, and when the city election is held on the first Tuesday after the first Monday in November, in which case the city machinery may be used to take the vote and certify it to the county clerk, but it does not apply in the year of a general state election. The first part of the section above quoted applies to every county, subdivision of a county, or precinct thereof as a county election, except if within a city whose election occurs on the same day, then within the city it may be held by the city judges and clerks of election, appointed and qualified under the city charter or the laws of the state regulating such city election. But in this case the election was not held on the day of a city election nor called' as such, being a county election in a subdivision of the county, namely, the municipality of Hillsboro. Section 4922, L. O. L., was enacted prior to the home rule amendment of the Constitution, and operates the same as it did prior to the amendment, except that now the municipality or any precinct therein is an independent subdivision of the county. The local option election is a county election in the county as a whole, or a subdivision thereof, of which the city is one, and need have no reference to the date of a city election except as above mentioned. The home rule amendment expressly retains the County Court as the agency authorized to put into or out of operation orders of prohibition: See State v. Hearn, 59 Or. 227 (115 Pac. 1066, 117 Pac. 412). In State v. Perkins, 61 Or. 163 (121 Pac. 797), the election within the city was called by the County Court for November 7, 1911, which was, in fact, the day of the regular city election, and the election was conducted by its machinery as provided — 113 — in the part of Section 4922 quoted in the brackets: Bellarts v. Cleeton, 65 Or. 269 (132 Pac. 961). Finding no error in the record, the decree is affirmed. Affirmed : Rehearing Denied.