State ex rel. Ayres v. Amsberry

Cornish, J. Mandamus to compel the secretary of state to file a referendum petition upon Senate File No. 2, enacted at the 1919 session of the legislature, and known as the “Code Bill,” which petition the secretary of state refused to file, on the ground that there was not attached to the Various sheets or sections of the petition a “full and correct copy” of the enacted law. . Relators appeal from a judgment sustaining the secretary. Section 2335, Rev. St. 1913 (amended, Laws 1919, ch. 86), is in part as follows: “The following shall be substantially the form of petition for ordering'the referen — 275 — dum against any act or any part of any act passed by the legislature of tbe state of Nebraska. “Petition for Referendum. “To tbe Honorable-, Secretary of State for the State of, Nebraska: "We, the undersigned citizens and legal voters of the state of Nebraska and the county of---, respectfully order that the Senate (or House.) Bill No.-entitled (title of act, and if the petition is against less than the whole act then set forth here the part or parts on which the referendum- is sought),” etc. The petition in controversy complied in all respects with this provision of the law, showing title of the act, but did not have attached to it a copy of the law. Section 2336 gives the form of petition for proposed legislation by initiative. This section requires the proposed law to be set forth in the petition, or attached to it. Section 2337 provides in part as follows: “Every such sheet for petitioners’ signatures shall be attached to a full and correct copy of the title and text of the law or amendment to the Constitution so proposed by the initiative petition,- but such petition may be filed with the secretary of state in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not 'more than twenty signatures on one sheet shall be counted. When any such initiative or referendum petition shall be offered for filing, the secretary of state, in the presence -of the governor and the person offering the same for filing, shall detach the sheets containing the signatures and affidavit and cause them all to be attached to one or more printed -copies of the measure so proposed by initiative petitions, or of the act or part of an act against which referendum petitions are filed.” Relators cite our opinion in Bartling v. Wait, 96 Neb. 532, as decisive of the question in dispute. The respond — 276 — ent argues that in that decision section 2335, supra, only was construed. No detailed discussion of the language used in section 2337 is entered into; and it is probably true that some of the questions involved in the proper interpretation of section 2337 were not considered by the court at that time, and that the rule laid down might not come under the doctrine stare decisis. On the other hand, the immediate question was in issue. A purported copy of the act was printed on the petition. It omitted an important word, and it. was urged that this made the petition void, because section 2337 required “a full and correct copy of the act proposed” to be printed upon the petition. We held that section 2335 governed, and that section 2337 was inapplicable to referendum petitions. In so holding we, in effect, held that “a correct copy” of the measure need not be attached to referendum petitions. It is to be observed that to secure intelligent petitioning the need for an attached copy is not at all the same when referring legislation as when initiating it. In the one instance, the voter presumably knows the law and is informed, except in cases where only a portion of the law is being referred, and, if not, can get exact information. In the other, presumptions are to the contrary. This distinction is recognized in the constitutional amendment itself; the section providing for initiative requiring an attached copy of the proposed law, which requirement is omitted from the section providing for a referendum. Bearing upon the question of the construction of the statute, we have to consider also the language of the initiative and referendum amendment to the Constitution as follows: “This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation.” Const., art. Ill, sec. ID. Under this provision, legislation permissible must be such as frees the operation of the constitutional provisions from obstruction or hindrance. Any legislation which would hamper — 277 — or render ineffective the power reserved to' the people would he unconstitutional. It is urged that a law which requires a 461-page hook to he attached to each of 1,472 sheets, circulated for 20 names, is obstructive; that the expense and inconvenience of it would sometimes render practically, if not quite, impossible the reference of measures; that it is an absurd and unnecessary hardship, especially so when it is considered that those circulating the. petition are, ordinarily, persons working voluntarily, without pay, in what they conceive to be the public interest. We are of opinion that in’some cases at least this would be true, and that the law, as interpreted by the respondent, would be open to that objection. Of course, laws to prevent fraud “facilitate,” because failure to prevent frauds would render the amendment itself objectionable as a means of legislation. In view of the constitutional provisions and of our decision in Bartling v. Wait, supra, we have reached the conclusion that section 2337 is inapplicable to the form of the petition circulated; that it is unnecessary that each sheet for referendum petitioners’ signatures have attached to it a true copy of the act; that in this particular it is a sufficient compliance with section 2337 that the referendum petition, taken as a whole, which includes all of the various sheets, have attached to it, when offered for filing, a full and correct copy of the measure. This was done in the instant case. Laws to facilitate the operation of the amendment must be reasonable, so as not to unnecessarily obstruct or impede the operation of the law. -Á law requiring a full copy of a 461-page act to be attached to each sheet would be unreasonable and unnecessarily obstructive. In practice it has never been thought necessary, in submitting a law to the voters, that a full copy of it should be attached to the voter’s ballot. Accordingly, section 2340 of the act requires the ballot title to contain only an impartial statement of the purpose of the measure to be prepared by the attorney general. Such legislation, for — 278 — the purpose of informing a referendum petitioner, may tend to facilitate the operation of the law. The people are conservative. In the absence of fraud, they will be inclined to vote “no” to a proposition which they do not understand and which purports to change existing laws. The amendment under consideration reserves to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their act. The law should be construed, if possible, so as to prevent absurdity and hardship and so as to favor public convenience. Relators in their brief devote an argument to the proposition that “under our Constitution and laws the secretary of state is a ministerial officer, without power to exercise judicial functions, and that his duties relative to referendum petitions are strictly defined by statute. Of course, this is true; but, holding as we do that the petition should have been filed, we deem it unnecessary to enter into a discussion of this question, as applied to the facts and circumstances of the ease in hand. Respondent in his brief calls our attention to a provision in section 2339 of the statute,.as follows, “Either party may appeal to the supreme court within ten days after a decision is rendered,” and-suggests that the action should be dismissed for want of jurisdiction. ,It appears that judgment was entered August 2; motion for a new trial overruled August 5; and transcript filed in this court August 19. It appears further that on October 24 the parties stipulated in this court that the case should be advanced for hearing £ £ upon its merits. ’ ’ Afterwards, respondent procured time for preparing and filing briefs. We are of opinion that this suggestion, based upon a provision which is more or less in the nature of a statute of limitations, coming after stipulation for hearing upon the merits and after having subjected the opposing party to the costs incident to preparing briefs, may and should be disregarded. This' question might have been raised by plea or motion to dismiss for want of jurisdiction, — 279 — but was not. Lloyd v. Reynolds, 26 Neb. 63; Patterson v. Woodland, 28 Neb. 250. 1. Appeal: Jurisdiction. The supreme court has no power to exercise appellate jurisdiction in proceedings to review the judgments of the district court, unless a transcript is filed with the clerk of this court within the time prescribed by law for taking appeals. 2. -: Time: Initiative and Referendum Act. In actions arising under the provisions of chapter 159, Laws, 1913, as amended by chapter 86, Laws 1919, appeals from the district court to the supreme court must be taken within ten days from the rendition of the judgment or final order in the district, court. 3. Statutes: Construction. “The word ‘may’ in public statutes should be construed as ‘must’ whenever it becomes necessary to carry out the intent of the legislature; but in all other cases this word, like any other, must have its ordinary meaning.” Kelly v. Morse, 3 Neb. 224, followed. 4. Appeal. Record examined, and the case held to be an appeal from the judgment of the district court, and not an original action for mandamus in this court. 5. Statutes: Initiative and Referendum Act: Title. The title of the initiative and referendum act (Laws.1913, ch. 159) examined, and held sufficient to cover those provisions in the act relative to procedure in the district court and limitation of time for appeal, as such matters are found to be germane to the general subject, expressed in the title as “An Act to provide for carrying into effect the initiative and referendum,” etc. The judgment of the district court is reversed.. It is further ordered that a writ of mandamus issue out of this court, requiring respondent, as secretary of state,'to accept and file the referendum petition tendered, detaching sheets containing signatures, and otherwise proceeding in accordance with the statute and the law as laid down in this opinion. Reversed. Rose, J., dissents. Letton, J., not sitting.