M. E. LUNDBERG, FRED DRESSLER, R. L. KNISLEY, E. THAYER BIGELOW, EUGENE V. FRANCY, FOREST B. LOVELOCK and ANDREW ULRICH, JR., Petitioners, v. JOHN KOONTZ, Secretary of State of the State of Nevada, Respondent
Lundberg v. Koontz
M. E. LUNDBERG, FRED DRESSLER, R. L. KNISLEY, E. THAYER BIGELOW, EUGENE V. FRANCY, FOREST B. LOVELOCK and ANDREW ULRICH, JR., Petitioners, v. JOHN KOONTZ, Secretary of State of the State of Nevada, Respondent.
M. E. LUNDBERG, FRED DRESSLER, R. L. KNISLEY, E. THAYER BIGELOW, EUGENE V. FRANCY, FOREST B. LOVELOCK and ANDREW ULRICH, JR., Petitioners, v. JOHN KOONTZ, Secretary of State of the State of Nevada, Respondent.
No. 5190
October 7, 1966
418 P.2d 808
Gray, Horton and Hill, of Reno, for Petitioners.
Harvey Dickerson, Attorney General, of Carson City, for Respondent.
OPINION
By the Court, Thompson, J.:
The Nevada Constitution reserves to the people the power to propose a constitutional amendment by initiative petition, if submitted in proper form by registered voters equal to 10 percent, or more, of the number of voters who voted at the last preceding general election in not less than 75 percent of the counties in the state, and if the total number of registered voters signing the initiative petition is equal to 10 percent, or more, of the voters who voted in the entire state at the last preceding general election. Nev. Const., Art. 19, § 1, 2.
By an original proceeding in mandamus, seven citizens, voters and taxpayers of Nevada challenge the legal sufficiency of an initiative petition filed with the Secretary of State on June 1, 1966. The initiative petition seeks to repeal Nev. Const., Art. 4, § 24, prohibiting lotteries, and proposes the issuance of a ten year exclusive license to Silver State Sweepstakes, Ltd., a Nevada corporation, to conduct a lottery or lotteries in Nevada upon specified terms. The initiative petition consists of 580 separate documents bearing the signatures of 31,653 persons. Its validity is questioned upon the ground that only 4,086 signatures were authenticated by affidavit in the manner required by Nev. Const., Art. 19, § 3. This challenge, if true, destroys the validity of the petition for lack of the required number of signatures.
The respondent Secretary of State filed an answer to the petition for mandamus, admitting the factual aver-ments concerning the authentication of signatures. Silver State Sweepstakes, Ltd., and certain individuals who were citizens, registered voters and taxpayers of Nevada, moved to intervene. Oral arguments on the motions and the merits were heard September 26, 1966. The motions to intervene were denied that day, with Collins, J., dissenting. However, we invited Silver State to present argument upon the merits as an aid to the court. Cf. Stephens v. Bank, 64 Nev. 292, 182 P.2d 146 (1947). As the need for an early decision on the merits was pressing, we announced our decision from the bench on September 28, 1966, directing that the alternative writ of mandamus, heretofore issued, be made permanent (Zenoff, D. J., dissenting). The Secretary of State was ordered to refrain from taking any steps toward publishing the proposed initiative measure, causing it to be printed on the ballots and submitting it to the voters of Nevada at the general election to be held November 8, 1966. This opinion is in explanation of that decision.
1. We first express our view about the motions to intervene. The movants claimed a right to intervene under NB.CP 24(a) (2) which provides that "upon timely application anyone shall be permitted to intervene in an action when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action." Each requisite must appear, i.e., inadequate representation of the applicant's interest and a binding judgment in the action. Sam Fox Publ. Co. v. United States, 366 U.S. 683, 6 L.Ed.2d 604, 81 S.Ct. 1309 (1961). We need not reach the question of the binding effect of the judgment in this proceeding upon those seeking intervention, since we believe that their interests were adequately represented by the government (the Attorney General answered for the Secretary of State). The single issue presented by the mandamus proceeding is the meaning of Nev. Const. Art. 19, § 3, — an issue of law. What happened factually is disclosed by an examination of the 580 documents making up the initiative petition. Evidence aliunde is not needed. The interests of the parties to this proceeding, the proposed intervenors, and the citizens of Nevada are identical insofar as the resolution of the legal issue is concerned. In this context the government's representative is adequate to represent the interests of those desiring to intervene. Accordingly, a right to intervene under NRCP 24 (a) (2) is not established. Notwithstanding, Silver State was allowed to present oral argument upon the legal issue, as an aid to the court in deciding the matter.
2. Mandamus is appropriate to prevent improper action by the Secretary of State, as well as to compel him to perform an act which is his duty under the law. McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787 (1948); French v. Jordan, 28 Cal.2d 765, 172 P.2d 46 (1946); Gage v. Jordan, 23 Cal.2d 794, 147 P.2d 387 (1944); Yorty v. Anderson, 60 Cal.2d 312, 384 P.2d 417 (1963). Therefore, we turn to resolve the question of law presented by this proceeding.
3. The validity of the initiative petition before us depends upon the meaning of the third sentence of Nev. Const., Art. 19, § 3. It reads: "The petition may consist of more than one document, but each document shall have affixed thereto an affidavit made by one of the signers of such document to the effect that all of the signatures are genuine and that each individual who signed such document was at the time of signing a registered voter in the county of his or her residence."
The content of the 580 affidavits affixed to the 580 documents comprising the initiative petition suits the Constitution. Each affidavit states: "_, being first duly sworn, deposes and says: That (s)he is one of the registered voters of the State of Nevada who has signed the above document entitled 'An Initiative Petition Proposing an Amendment to the Constitution of the State of Nevada Relating to a State Lottery'; that all of the signatures to such document are genuine and that each individual who signed such document was at the time of signing a registered voter in the county of his or her residence." However, an examination of the 580 documents establishes that many of them were not, in fact, signed by the person who' executed the affixed affidavit. Each affidavit, in those instances, is false. Because of this failure, the petitioners argue that the signatures of 27,567 persons signing the infirm documents may not be counted, thereby destroying the validity of the petition for lack of the required number of signatures.
In presenting oral argument at our invitation, Silver State Sweepstakes noted that the affiant, in most instances, did sign one of the documents which he had circulated, though not every document to which his affidavit was attached. It was suggested that we deem this to be substantial compliance with the Constitution. If we were to accept this suggestion, the initiative petition would contain the requisite number of signatures.
The Constitutional history of Art. 19, § 3 and relevant case authority destroy any possibility of merit in the suggestion of Silver State. In 1960 the Legislature, by joint resolution, proposed an amendment to that article and section. Stats. Nev. 1960, p. 512. At that time, the pertinent language of the Constitution read: "Each document comprising the initiative petition filed with the Secretary of State shall have affixed thereto, an affidavit made by one of the signers to each of said documents or to the 'petition ." [Emphasis supplied.] The proposed amendment, inter alia, deleted the underscored words "or to the petition." The amendment was passed by the 1960 Legislature and by the 1961 Legislature and was approved and ratified by the people at the 1962 general election.
Before the amendment, one affidavit by a signer of a petition consisting of more than one document could satisfy the Constitution (if other requisites, not relevant here, were also met). This is no longer true. Now, each separate document shall have affixed thereto an affidavit made by a signer of that document. An affidavit must, of course, state the truth. In the present matter, many of the affidavits were untrue because the affiant did not sign the document to which the affidavit was attached. In such case none of the signatures on those documents may be counted. Fiannaca v. Gill, 78 Nev. 337, 372 P.2d 683 (1962); Caton v. Frank, 56 Nev. 56, 44 P.2d 521 (1935); In re Opinion of the Justices, 114 Me. 557, 95 A. 869 (1915).
Fiannaca v. Gill, supra, involved a recall petition. The relevant statute provided: "The petition shall consist of any number of copies thereof, identical in form with the original, except for the signatures and residence addresses of the signers. Every copy shall be verified by at least one of the signers thereof, who shall swear or affirm, before an officer authorized by law to administer oaths, that the statements and signatures contained in the petition are true." The court there held that the statute was not satisfied when a number of copies were attached together, and one signer of one copy verified that copy. Such verification could not meet the statutory mandate as to all joined copies. The court took note of Catón v. Frank, supra, where the verification did not show that the person making the affidavit was himself a signer of the petition and was, for that reason, defective.
True, the Fiannaca and Catón cases are not factually identical with this case. In Fiannaca, the verification was made by a signer of a copy; here, as to the documents in dispute, the affidavit was not made by a signer of the document. In Catón, the content of the verification was defective, while here the content of the affidavit satisfies the Constitution. However, the underlying principle of Fiannaca and Catón is clear — the content of the verifying affidavit must satisfy designated requirements, and it must state the truth. This principle is sound because the assurance that legal requirements have been met rests upon the verity of the affidavit. If the affidavit is false, that assurance is destroyed. We must, therefore, demand strict adherence to the authentication requirements of the Constitution governing an initiative petition.
The alternative writ of mandamus, heretofore issued, is made permanent.
137,378 votes were cast at the last preceding- general election in 1964. Ten percent of that number is 13,787.
In every county, except Eureka and Storey, more than one person circulated the separate documents prepared for that county and, except for Eureka County, each circulator secured signatures of voters on more than one document.
The separate documents comprising the initiative petition were circulated by county. Some of the signers of the documents did not "affix thereto the name of the county in which he or she is a registered voter," (Nev. Const., Art. 19, § 3), though that information, arguably, was ascertainable from other data on the documents. We do not express an opinion whether the Constitution was satisfied in this regard.