Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-21
NJUNCTION MADR pRRMlSErr.
CONTINUED from Page ~

petition, it cannot have that power
against the measure. and the latter
becomes a law.
1t is the purpose Of this suit to test
this matter. 1t is alleged in the COM
plant, and it is not denied By the
answer that the plaintiff, at and for
a long time prior to the commence
ment OF this suit was a resident, in
habitant and taxpayer of the city of
eugene Lane county. Oregon, and
was and is legal voter therein, and
as such he claims that he has a right
TO prosecute this suit. But 1t is
claimed by counsel for the-defeadant
that plaintif has not the capacity to
bring this suit. and that this court
does not have jurisdiction Of the sub
lect matter Of this suit. Neither of
these contentious haA the slightest
support In authority. The whole mat
ter is settled by the provisions Of
section S474 L. o. L., which. are: "If
the secretary Of state shall refuse to
accept and file any petition for the
Initiative or referendum any citizen
may apply within ten days after such
refusal to the circuit court for a writ
OF mandamus to compel him to do SO.
On a showing that any petit
tion filed is legally insufficient, the
court may enjoin the secretary OF
state and all other officers from certi-
flying or printing on the official bal
lot for the ensuing election, the bal
lot title, and number of such meas
use"
The power to hear and determine
the legal sufficiency of petition al
ready filed, is expressly conferred on
the court by statute. The ony matter
not expressly stated is the right of
plaintiff, as citizen, to bring the
suit. But by the preceding sentence
of the statute, the power is express
ly conferred upon any citizen to bring
an action to mandamus the secretary
to secure the filing of the rejected
petition, and as citizen has the
same, II not more interest in the va
lidity of the petition already filed as
he has in one that has been refused
the privilege of being filed, and as no
other particular person is designated
in the statute as a proper party plain
tiff to enjoin the secretary, we must
conclude that it was the legislative
intent that any citizen might bring
such suit, as well as to bring an ac-
tion at law to mandamus the secre-
tary.
The complaint alleges that the pc
tition as filed, contains total of 49,
615 names, which number is admitted
by the answer to be the correct num-
Der; but 1t is also alleged in the COM
paint that a certain part of this Pc
tition, consisting of SO sections, the
respective numbers of which are
therein stated, and containing 51Q5
signatures, are void, for the reason
that non of the separate sheets
thereof. containing the names, have
anything printed or written thereon
to donate the purpose or object that
the persons whose names are written
thereon may have had in view when
signing their names thereto; that is,
that there Is no form of petition on
any Of said sheets, as required by
sections 3471 and S472, L. o. L.,
and is in violation thereof.
The facts, so alleged. are denied by
the answer, but the petition, which is
in evidence, confirms the allegation
of the complaint The legal proposi-
ton asserted by plaintiff in connec-
tion with the fact is controverted by
the defendant. The provisions of the
law, applicable to the facts shown
have been interpreted by the supreme
court of this state in the case of PAL
mer VS.. Benson, 80 Or, page 2S1 of
the opinion. This was an action
brought against The secretary of state
to compel him to file a referendum
petition, which he had declined 70 re.
ceive and file, because of defective
form. The form OF the petition In
that case was the question before the
court. After discussing other fea-
lures of the petition. the court said
at page 2S1 of the opinion Evident
ly the petition must be on every sheet
on which signatures are placed, but
the act will be on separate sheet
etc" The reason for this require
ment is obvious and substantial, and
cannot with any degree of fairness.
be denounced as a mere technicallty
of the law. but in fact 1t is most
essential and salutary provision. as
the facts Of this case will demonstrate
without some such requirement
there woud be no certainty Of the
intent or purpose which the several
persons had when signing their names
and certainy It could not be said that
It bore any evidence that they in
tended to subscribe to statements in
eeribed on a separate paper, although
h...,A tnnether in the game nackage.